The U.S. Supreme Court just released its opinion in Georgia v. Randolph. It was a 5-3 decision with Souter writing for the majority. Justices Scalia and Thomas and Chief Justice Roberts dissented. Justice Alito didn't participate. The court's holding: that the refusal of consent to search by an on-site co-occupant trumps consent given by an occupant who is no present at the time of the search. Randolph's estranged wife had given police consent to search the house she share with Randolph. When the police arrived, he refused consent, but the police searched anyway.

The case can be found at this link: Georgia v. Randolph

Janette Ansolabehere
DPS

While an important decision, after so many recent watershed cases such as Simmons, Atkins, Booker, & Crawford, this one seems particularly inoffensive. Is anyone surprised by the opinion?

Nope.

Janette Ansolabehere
DPS

The Fifth Circuit ruled yesterday that Crawford is not a "watershed" rule for habeas purposes; therefore, it does not apply retoactively. See Lave v. Dretke, No. 04-70035 (3/22/6). In restrospect, I should have used a term such as "seachange" or maybe "tsunami." Though whatever term is used, Crawford (like the oher mentioned cases) plainly had, and continues to have, a massive impact on criminal law.

While I wouldn't characterize the opinion as "offensive", I do think it odd that it is now constitutionally unreasonable for an officer to accept an invitation to enter a premises extended by one who is in authority over that premises.

If the consentor and the non-consentor had both been on the property when the police obtained consent, would it have changed anything?

"In restrospect, I should have used a term such as 'seachange' or maybe 'tsunami.' "

we're gonna' need a bigger boat.

John, it probably would have changed the analysis, but I think that makes the opinion even less defensible, just because of the sheer randomness (e.g., guy who stands at the door can bar access to the cops, but a guy in the kitchen who doesn't hear them come in cannot).

It just seems to me that, as a practical matter, for p/o in the field, if any person with equal authority to the consentor at the scene denies entry that's the end of the matter. Unless there are exigent circumstances, get a warrant. Generally, I don't favor bright-line rules but what else works efficiently when police face persons with equal authority disagreeing?

The problem is that we've jettisoned a bright line rule for one that isn't so bright. It would be more than clear to any officer to follow what has always been the rule -- that a person in authority over a premises may allow a search of that premises. But now we've got a rule where one person can say no, but only if he's there (but maybe he can yell "no" from his bedroom?), and if it's a domestic violence issue then the police can take that into consideration as an exigent circumstance, etc.

I agree that there is a down side to such a rule and coupled with Crawford, one wonders if D/V victims aren't being shut out of court. Something that should ameliorate many D/V consent problems though is that exigent circumstances will often foreclose the need for a warrant.

I think this is potentially incredibly problematic.

I've deleted my questions in favor of the following: this opinion reaches into privacy rights while in public.

How many co-tenants does it take to constitute a public place?

When is the denial of consent ripe? Stale?

[This message was edited by Philip D Ray on 03-23-06 at .]

John asked:
If the consentor and the non-consentor had both been on the property when the police obtained consent, would it have changed anything?

I don't believe it would have changed anything, because according to my understanding that is precisely what happened here. According to the majority's explanation of the facts, after the defendant refused consent, the officer turned to the wife. She not only gave consent but led the officer upstairs to the defendant's bedroom and showed him the cocaine straw. So you have two co-owners who are both present, one giving consent and one refusing it.

The rule in this case I don't actually have a problem with, though I think it's fairly nonsensical. I don't think it will have that much of an effect -- if the police want to go back to the old rule, they just have to make sure they question the two co-owners out of earshot of each other and only ask the one they think will be favorable to them for consent to search! Souter seemed very interested in pointing out all the ways that this rule won't apply in the majority opinion, so it seems very limited. Breyer even points that out in his concurrence, I believe.

What I find is odd, though, is the majority's conclusion that this rule is based on the social convention that if one person grants you consent to enter and another denies it, no reasonable person would enter under any non-exigent circumstances. That's completely baffling to me -- I certainly have entered a house where my friend tells me to come on in, even while her husband is standing right there saying he doesn't want any more women gossiping in his house. I suppose this gives free rein to the wives sick of their husband's poker buddies, too. I believe Roberts points out numerous other examples in his dissent as well. It just seems odd that the entire rule can be based on this "obvious" social convention that doesn't actually seem to be true.

My favorite part of this whole opinion is the sniping between Stevens and Scalia in their concurrence and dissent about originalism, though!

[This message was edited by Andrea Westerfeld on 03-23-06 at .]

Maybe some of us misunderstood the original post and skimmed the available information on the actual case! That'll learn us!!! Further reading does indicate the opinion is broader than I thought. I'm not sure my view of the result changes though.

I agree, it doesn't seem to be a ground-breaking opinion. Even the authors were more concerned in showing all the ways the rule could be gotten around than when it should be applied.