What Does ‘Reasonableness’ Require of Fourth Amendment Searches?

Georgia v. Randolph

This is a very interesting, and somewhat contorted case. I will use headings to describe the opinion the following paragraphs address. Notice, with the Court missing a member there are an even number of Justices, and it looks like they split evenly in this case. This case is also interesting because of the debates between the majority and the Chief Justice over policy, and between Stevens and Scalia over the nature of original intent jurisprudence. The case itself presents the question of whether an officer may conduct a warrantless search with the consent of one cotenant and over the objection of another, present, cotenant, and then use evidence found in that search against the objecting cotenant. These warrantless searches are legal under the Fourth Amendment so long as they are “reasonable.”

Majority: Justices Souter, Kennedy, Ginsburg

First of all, the Court argues, a third party’s common authority over property is “not synonymous with a technical property interest” since any one of those sharing authority over property could permit a search without the others’ knowledge. Rather, “the common authority that counts under the Fourth Amendment [may] be broader than the rights accorded by property law.” Turning to the question of what makes a search “reasonable” under the Fourth Amendment, the Court looks to “widely shared social expectations” which inform, but do not control, property law, and which have been the “constant element” in Fourth Amendment jurisprudence.

The Court then shows that past precedent is well explained in these terms. An officer can reasonably expect that a woman who most likely lives on a given premises is empowered to invite others (in this case the officer) inside, and the officer is not expected to ensure that she does not have an “atypical arrangement” with her roommates (Matlock). A cotenant does not suppose that his rental is premised on the ability of his landlord to invite others into is home (Chapman), nor does a hotel guest expect any similar arrangement where the manager may invite anyone other hotel employees into the guest’s hotel room (Stoner; Jeffers). A young child might have the authority to invite police officers to cross the threshold, but not to search the entire home. “Over-night houseguests have a legitimate expectation of privacy in their temporary quarters because ‘it is unlikely that [the host] will admit someone who wants to see or meet with the guest [over her objection’” (Olson).

Therefore, without a good reason, a guest/officer would not believe the invitation of one cotenant to be sufficient while another told him to ‘stay out.’ A concern for the first cotenant’s safety would justify such a decision, however on different grounds. Since there is no superiority in ownership (anymore) on which an officer can rely, one inviting and one objecting cotenant give the officer “no better claim to reasonableness in entering than the officer would have in the absence of any consent at all.” Meanwhile, the Court recognizes the cotenant’s interest in bringing criminal activity to light, his interest in siding with the police to “deflect suspicion raised by sharing quarters with a criminal,” and acknowledges that he may, on his own initiative, deliver evidence to the police and tell them what he knows, so that they can get a warrant (though sometimes this information would create a sufficient exingency to justify immediate action).

Responding to the dissent, the majority points out that if the officer had reason to believe on party was in danger she could certainly enter on that grounds, and being within the premises, conduct a plain view search, without committing a trespass. The Court also states that while the cotenant in Matlock was giving permission in “his own right,” this was not an enduring property right, but a socially recognized authority. The majority also states that for both social and practical reasons officers have no duty to affirmatively seek out, confirm, or presume the consent or lack of consent of an absent cotenant. The majority holds that “in the circumstances here at issue, a physically present co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him.”

Concurrence: Justice Stevens

Justice Stevens argues that the majority opinion would be the proper interpretation of the Constitution even assuming a strict-originalist interpretation, an argument obviously directed at Scalia. He observes that “at least since 1604 it has been settled that in the absence f exigent circumstances, a government agent has no right enter a ‘house’ or ‘castle’ unless authorized to do so by a warrant.” Every occupant has a right to refuse, and where they voluntarily give consent (with advice regarding their rights) they give up a valuable constitutional right. Stevens argues that since originally only the husband’s consent mattered “if ‘original understanding’ were to govern the outcome of this case, the search was clearly invalid because the husband did not consent. History, however, is not dispositive because it is now clear, as a matter of constitutional law, that the male and the female are equal partners.”

Concurrence: Justice Breyer

Justice Bryer essentially says that if he had to choose between a bright-line rule which always found one cotenant’s consent sufficient, or never did, he would pick the former. However the Fourth Amendment does not require a bright line rule, but rather rests on ‘reasonableness.’ He stresses the “totality of the circumstances” because “were the circumstances to change significantly so should the result.”

Dissent: The Chief Justice

The dissent argues that just as the consenting cotenant does not have a right to prevail, neither does the objecting cotenant. The dissent particularly objects the majority’s reliance on social situations, arguing that “a wide variety of differing social situations can readily be imagined, giving rise to different social expectations.” “The Fourth Amendment protects privacy.” The Chief Justice argues that the case should be settled, as the precedents were, in terms of a reasonable expectation of privacy; privacy which is given up when a person shares private matters with someone else. “Just as Mrs. Randolph could walk upstairs, come down, and turn her husband’s cocaine straw over to the police, she can consent to police entry and search of what is, after all, her home too.” “It is well settled that when an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to authorities … This court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to the Government authorities even if the information is revealed on the assumption that it will be used for a limited purpose and the confidence placed in a third party will not be betrayed” (Jackobson). The marriage exception remains the prerogative of the divulging party.

The dissent also points out that the officers could have reasonably concluded that a husband asleep on the couch would have objected to the officers’ entry for the purpose of his arrest over his wife’s objection, and that it is illogical to hold as the majority does without requiring police to make deductions about essentially present cotenants, or without requiring the police to consult with a cotenant nearby in police custody. The rule is so random in application, the dissent argues, that it bears no relation to the actual privacy interest at stake. The dissent takes issue with the fact that an officer can justify a search because of a fear for an occupant’s safety, justified on the ‘very consent that the majority finds so inadequate,’ and argues that exigent circumstances are “a strange way to justify a rule.” Finally, the dissent attacks the fact that the majority’s rule regarding the legality of the evidence is framed only as to the objecting party, and that, considering the contingent concurring opinion of Justice Breyer, this ruling is not much direction for lower courts.

Dissent: Justice Scalia

Justice Scalia defends originalism against Justice Stevens by arguing “if the matter did depend solely on property rights, a latter-day alteration of property rights would also produce a latter-day alteration of the Fourth Amendment outcome-without altering the Fourth Amendment itself. Justice Stevens’ attempted critique of originalism confuses the original import of the Fourth Amendment with the background sources of law to which the Amendment, on its original meaning, referred.” He argues that the Court has “consistently held that the existence of a property interest is determined by reference to existing rules or understandings that stem from an independent source such as state law.” This is an interesting contortion for originalism. He also argues that Stevens could have reached the opposite conclusion, that because a man cannot now overrule the woman she may consent regardless of his objection.

Dissent: Justice Thomas

Justice Thomas argues that because Mrs. Randolph, as a private citizen, admitted the officer into the home and led him to the evidence, no Fourth Amendment Search existed. “No Fourth Amendment search occurs where, as here, the spouse of an accused voluntarily leads the police to potential evidence of wrongdoing by the accused.” (Coolidge)