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When two people (let’s call them M and W) live together, among the things they usually share is common authority over their home. Thirty-one years ago, the Supreme Court held that, so long as W has such common authority, she may consent to a police search — even though M is the target. The case, United States v. Matlock, established what is known as the “third-party consent rule” — the officer being the first party, M the second party, and W the third party. This rule is before the Supreme Court again this week, as it hears oral argument in Randolph v. Georgia. At issue is whether W’s consent lets police perform a warrantless search of a home, even when M is present and refuses permission. PLEASE COME IN, OFFICER Janet and Scott Randolph’s marriage was a troubled one, and in May 2001, Janet left the marital home in Americus, Ga. Her absence apparently did not make the couple’s hearts grow fonder: Janet returned on July 4, but two days later, she called police to report a domestic disturbance. When the police arrived, only Janet was present. Scott had taken the couple’s child to a neighbor’s house. In his absence, Janet told the police that Scott was using large amounts of cocaine. When Scott returned minutes later, he denied his wife’s allegations, told the officers that she was an alcoholic, and refused to consent to a search of the home. Janet, however, did consent. After a quick walk-through revealed evidence of cocaine use, police obtained a search warrant, seized a quantity of cocaine, and charged Scott with possession. The Georgia Supreme Court suppressed the evidence. The majority, quoting Professor Wayne LaFave’s treatise and decisions by state courts in Washington and Florida, reasoned: “While one co-inhabitant may have assumed the risk that a second co-inhabitant will consent to a search of common areas in the absence of the first co-inhabitant, . . . the risk assumed by joint occupancy goes no further — the risk is merely an inability to control access to the premises during one’s absence. [A] present, objecting party should not have his constitutional rights ignored . . . [due to a] property interest shared with another. . . . Any other rule exalts expediency over an individual’s Fourth Amendment guarantees.” Accordingly, the majority adopted a bright-line rule: Whenever the target of the search is present and objects, this trumps any consent a third party may give, even though the third party’s privacy interest in the premises equals the suspect’s. The dissent, citing several state and federal court decisions to the contrary, read Matlock as holding that a court must look, “not to the defendant’s presence or absence but to whether or not he assumed the risk that the third party who possessed common authority over the premises would permit inspection in his own right.” The dissent therefore urged the opposite bright line: The consent of someone with common authority is always valid, even if the target is present and objects vociferously. Coincidentally, Connecticut’s Supreme Court, in State v. Brunetti, also addressed the same issue very recently, albeit in a different factual setting. Police, suspecting that a 19-year-old living with his parents had murdered a neighbor, asked his parents if they could search the family’s home. The father said yes; the mother said no. The police searched and seized garments with the victim’s blood on them. The Connecticut high court suppressed the evidence, relying heavily on the state constitution. Rational arguments certainly exist to uphold the Georgia court’s decision in Randolph. It is one thing to say that a person assumes the risk that his cohabitant will consent to a search in his absence. To rule that the cohabitant’s consent entitles the police to ignore a present suspect’s invocation of his right to privacy, however, significantly expands the assumption of risk. A number of state courts have reasoned that such a rule would exalt police expediency over privacy. It would also encourage police to exploit a domestic dispute by getting consent from one cohabitant in retaliation for other wrongs (real or imagined). Nevertheless, Randolph appears to be controlled by Matlock‘s underlying rationale, whose facts are somewhat similar. Police arrested Matlock for armed robbery. The arrest took place in the front yard of a home owned by his girlfriend’s parents. Matlock rented one of the bedrooms, and substantial evidence indicated that Matlock and his girlfriend shared that bedroom. After Matlock was placed in a police car, police obtained the girlfriend’s permission to search that room, and they found evidence connecting Matlock with the robbery. The Supreme Court, dividing 6-3, held that if in fact she and Matlock had common authority over the room, the girlfriend’s consent made the search lawful. Justice Byron White’s majority opinion mentioned, apparently in passing, that each of the Court’s prior consent search decisions on which he relied involved cases in which the nonconsenting person was absent. Yet nothing in that opinion suggests the Court intended this factor to limit Matlock. Indeed, the facts in Matlock suggest that the police apparently avoided asking Matlock for permission to search and deliberately removed Matlock from the home before asking his girlfriend. (None of the opinions in that case place any emphasis on this, however.) Most important, the rationale underlying Matlock appears to apply equally to Randolph: When someone shares his privacy in a premises or personal property with another, he or she “assume[s] the risk that [the other person] would allow someone else to look inside” — whether the suspect is present or not. COUNTING THE VOTES No current justice was on the Court when Matlock was decided, but four current justices did participate in Illinois v. Rodriguez (1990), a subsequent case on third-party consent. Here, a battered woman told police that Rodriguez had assaulted her in what she referred to several times as “our” apartment, and she agreed to take the officers there and let them in with her key so they could arrest him. (He was asleep when they arrived; a substantial quantity of cocaine was in plain view.) In fact, she had moved out of the apartment a month earlier, though she returned occasionally to spend the night with him. The Supreme Court held that under the circumstances, the woman did not have common authority over the apartment. But it further held that, if the police reasonably believed that she did, the search was nevertheless valid. The Court reasoned that if the police belief was reasonable, the search was likewise a reasonable one by Fourth Amendment standards. Justice Antonin Scalia wrote the majority opinion in Rodriguez. Justices Anthony Kennedy and Sandra Day O’Connor signed that opinion. Justice John Paul Stevens joined a dissent that protested the majority’s application of the “reasonable mistake” concept. If the votes in Rodriguez predict how justices would vote on a case with a somewhat different issue 15 years later (which of course may not be true), this yields two votes or, if O’Connor is still on the Court when the case is decided, three votes to reverse the state Supreme Court. It gives just one vote to affirm. As for the other justices, Clarence Thomas and Stephen Breyer more often than not side with the government in search-and-seizure cases. David Souter and Ruth Bader Ginsburg tend not to. Chief Justice John Roberts Jr., in his comparatively short tenure on the U.S. Court of Appeals for the D.C. Circuit, considered at least four Fourth Amendment cases (none of which involved consent searches) and sided with the government in each case. Thus, the language and logic of Matlock and Rodriguez, and the current makeup of the Court, both suggest that, if the Court adopts a bright-line rule, it will reverse the Georgia Supreme Court and authorize the use of the evidence from the search. There is another possibility, however. In each of the Supreme Court’s prior third-party consent cases, the police had a substantial basis to believe the suspect had committed a crime independent of the allegations of the third party. In Randolph, by contrast, the only evidence suggesting that the defendant had committed a crime was the accusation by Randolph’s estranged and bitter wife. It is possible, although unlikely, that the Court could seize on these facts to create a narrow exception to Matlock. If so, the Court need not decide the broader issue of whether a third party’s consent justifies a search despite the presence and objections of the suspect.
Clifford S. Fishman is a professor of law at Catholic University of America and a visiting professor of law at the University of Tennessee College of Law. He gratefully acknowledges the assistance of Justin Heminger, a Catholic University law student, in the preparation of this commentary.

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