Kerr v. Goldstein on Georgia v. Randolph
There’s a terrific debate going on over at the VC between Orin Kerr and Tom Goldstein of SCOTUSBlog about the recently argued U.S. Supreme Court case, Georgia v. Randolph. Tom Goldstein argued the case for Scott Randolph. The case involves an incident where Janet Randolph (Scott’s wife) consented to the police searching the couple’s home. Scott, who was present at the time, objected. The police searched nevertheless, and they found evidence against Scott of drug violations. The issue, as framed by the grant of cert is: “Can police search a home when a co-habitant consents and the other co-habitant is present and does not consent?”
A few quick thoughts:
(1) It seems clear that both Scott and Janet had a reasonable expectation of privacy in their home.
(2) Both Scott and Janet can validly waive their own Fourth Amendment rights by consenting to a search.
(3) If Scott weren’t home, Janet’s consent would allow the police to validly search the home. In United States v. Matlock, 415 U.S. 164 (1974), the Supreme Court held that the “consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.”
The key factor in this case is that Scott was present, voiced his objection, and the cops searched anyway. Should Scott’s presence and objection make a difference? In other words, should the rule in this case be any different from the rule in United States v. Matlock, described in (3) above.
The answer depends upon the purpose of the consent doctrine. I think that as a policy matter, the focus should be on creating clear rules for the police officer acting in good faith. The rule in Matlock above would be justified because the police officer is searching pursuant to a clear grant of authority. Making the officer have to guess whether all non-present parties would have consented would slow down the search process immensely. First, it would take time to locate all the other non-present parties. Second, the cop would have to figure out how many non-present parties have authority over the place being searched.
For sure, the rule in Matlock is problematic from an individual rights perspective, in that a person’s rights can be waived by another party. But from the perspective of an efficient way to allow police officers, acting in good faith, to be able to search pursuant to consent, the rule in Matlock does make some sense.
But now let’s turn to Georgia v. Randolph. If we have a clear communication by a party that he does not wish his property to be searched, the ambiguity in Matlock goes away. From the individual rights perspective, the result is problematic for the same reason as Matlock is. From the police perspective, there is a clear indication of no consent by a party being searched. It would seem to me that without facing any uncertainty as to whether all other parties consent and without the difficulty of having to check with all non-present parties to find out if they consent, there’s little justification to allow a cop to search here without a warrant. The benefits of the rule in Matlock disappear. Thus, Georgia v. Randolph is not analogous to the situation in United States v. Matlock.
Anyway, check out Kerr’s debate with Goldstein. They’ve been focusing on the case for a lot longer than I have, and their debate is far more informed than my musings.