Georgia v. Randolph
Respondent and his wife separated, and she took their son to Canada. She then returned and was staying with her husband, when she called police to complain that he took their son away. When they arrived, she told them that respondent was a cocaine user. Respondent explained that he took the son to a neighbor to prevent his wife from taking him to Canada again, denied using cocaine, and claimed that his wife was actually the drug user. After police retrieved the son, the wife repeated her accusations of respondent's drug use and offered to show police evidence of it in the house. Respondent refused this, but police entered based on his wife's consent.
Police found evidence of cocaine use, but the district attorney told them to stop and get a warrant when the officer went to get an evidence bag. Respondent's wife then withdrew her consent, and she and her husband were arrested. After getting a search warrant then, more evidence was found and respondent was indicted.
Respondent's motion to suppress the evidence was denied by the trial court, which ruled that his wife had common authority to consent to the search.
Is a warrantless search valid under the Fourth Amendment when consented to by one occupant but expressly refused by another occupant physically present?
Searches are ordinarily valid with the voluntary consent of an individual possessing authority, even over areas police falsely believe the occupant shares authority. However, this has not been established to be valid when a co-occupant is present and refuses permission to search.
No sensible person would enter a stranger's home when one occupant invited him in, but another stood there saying, "stay out." Without some recognized hierarchy, society gives each resident the right to use and enjoy the entire property if he was the sole owner, except as limited by others having the same right. One tenant has no reason to prevail over the other's right. One's consent to a search cannot force his co-tenant to give up his claim to security against government intrusion.
The co-tenant has other available methods of bringing criminal activity to light. He may deliver evidence to the police and tell police what he knows to help the police get a warrant to search. If exigent circumstances exist, warrantless searches may be justified.
A warrantless search is not permitted under the Fourth Amendment by one occupant's consent when another occupant is present and refuses to permit the search.
: The majority is creating constitutional law based on guesses of what people might do in weird social situations. This rule only provides protection on a random basis. A person is protected if he happens to be by the front door when the police show up but not if he is taking a nap. This is a serious issue, especially for victims of domestic violence, that should not have such random rules. The person consenting is assuming the risk of his own areas being searched.