Police officers routinely respond to violent domestic disputes. Usually the parties live together. What happens when she tells you that he keeps his stash in that dresser drawer and he beats her whenever he gets high. Can you search the dresser or the premises on her say so alone. Must he also consent?
In Georgia v. Randolph,[1] a domestic in Americus, Georgia, the United States Supreme Court gave us the answer this year. Wife Janet called the police when husband Scott, took their child to a neighbor. Janet advised responding officers that her husband “was a cocaine user whose habit had caused (them) financial problems.” As this was occurring, Scott returned to the home, denied drug use and advised that Janet was the one who abused drugs and alcohol. With that, Sergeant Murray asked Scott for permission to search the house. Scott clearly refused. The sergeant then asked Janet for permission, which she readily gave. Janet led the officers to an upstairs bedroom that she indicated was Scott’s. Sergeant Murray entered and saw the customary straw and white powder.
After Scott’s indictment for cocaine possession, he moved to suppress the evidence on the grounds that he did not consent to the search and his refusal should overrule that of wife Janet’s.
Co-tenants or joint occupiers have equal standing in the home. Who wins here? Who controls the actions of the police? The Supreme Court accepted the case:
to resolve a split of authority on whether one occupant may give law enforcement effective consent to search shared premises, as against a co-tenant who is present and states a refusal to permit the search.[2]
The court upheld the general rule of third party consent by persons having joint access or control previously announced in U.S. v. Matlock, however, they went on to hold that:
a physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant. Scott Randolph’s refusal is clear, and nothing in the record justifies the search on grounds independent of Janet Randolph’s consent. (That means if he’s the one going to jail, he can overrule her.)
They did drop a few hints of when that rule might not apply:
The State does not argue that she gave any indication to the police of a need for protection inside the house that might have justified entry into the portion of the premises where the police found the powdery straw (which, if lawfully seized, could have been used when attempting to establish probable cause for the warrant issued later). Nor does the State claim that the entry and search should be upheld under the rubric of exigent circumstances, owing to some apprehension by the police officers that Scott Randolph would destroy evidence of drug use before any warrant could be obtained. At 1533.
Since many of these cases originate as domestics, what happens when the potential defendant does not object as he is outside his home, sitting in the rear of the police car,[3] having been arrested for assaulting his beloved? Must you go outside and ask him too?
The Randolph court also spoke to that issue:
So long as there is no evidence that the police have removed the potentially objecting tenant from the (home) for the sake of avoiding a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant’s permission when there is no fellow occupant on hand, the other … (allowing the other co-tenant who is present to object). (Any other rule) would needlessly limit the capacity of the police to respond to legitimate opportunities in the field if we were to require … the police to … find a potentially objecting co-tenant before acting on the permission they had already received….
Better to accept (this rule) than to impose a requirement, (that would be) time-consuming in the field and in the courtroom, with no apparent justification. At 1527.
This is also the rule in Florida:
State v. Purifoy[4] was a typical domestic situation. Her hit her. He was arrested
and placed into the caged unit. They went into the house to talk to her. Whose
consent is necessary for a lawful search?
The trial court granted (subject’s) motion to suppress on the grounds that, although (the girlfriend who lived there) consented to the search, the police failed to obtain the consent of (the subject), who was in custody (but) available to consent. Because the record reflects that (the girlfriend) possessed common authority over the premises, she had authority to consent to the search and the police were not obligated to seek consent from (the subject who was currently not present).
The First District Court of Appeal (binding on all trial courts in Florida), then discussed the law to be applied to those facts:
It is well-established that a search conducted pursuant to valid consent is a recognized exception to the requirements of probable cause and a search warrant, Schneckloth v. Bustamonte, 412 U.S. 218, 222, (1973), although the consent to search must be voluntary, and the person giving consent must have authority to do so, United States v. Matlock, 415 U.S. 164 (1974), or must reasonably appear to have authority to do so, Illinois v. Rodriguez, 497 U.S. 177 (1990). Authority to consent to a search arises from the mutual use of the property by persons generally having joint access, common authority over, or other sufficient relationship to the premises or effects to be inspected. Under such circumstances, it is reasonable to conclude that any of the co-occupants has the right to permit the inspection in his or her own right, and that the co-occupants have assumed the risk that others with whom they control the premises might permit the commonly held areas to be searched…. (Earlier cases) … specifically considered and rejected the argument that the police were required to seek consent from a defendant in police custody and could not rely on the consent given by a third party with authority over the premises.
So what do we do when we get to those ever recurring domestics?
If it is reasonable (the key question to all Fourth Amendment questions) to arrest the hubby/boyfriend and put him in the caged unit outside the house, as you continue to interview the battered spouse, do it. If your intent is merely to remove him so he cannot object if she gives consent to search, the rule of Randolph would apply to frustrate the search. Got it?
Are these cases authority for you to get your suspect’s mother’s consent to search her juvenile son’s bedroom?
First ask yourself a few questions. Does Junior know that his mother enters his room on a regular basis to clean it? To what areas does she have access? Does she open the dresser drawers to replace his clean clothes? Does she put fresh linen on his bed and look under it for his socks? Is it reasonable for him to assume no one is invading his privacy? What about that locked fishing or toolbox in the closet? The one with the lock on it? What is the owner of that box telling us? Is there a reasonable expectation of privacy in that locked box?
Your job is dangerous enough. So long as you are doing it, and obtaining contraband as evidence, it might as well be admissible in court. Be safe out there, and we’ll see you ‘On the Road.”
