The U.S. Supreme Court Takes An Important Fourth Amendment Case
By SHERRY F. COLB
Last month, the Supreme Court decided to review Georgia v. Randolph. The case asks the following question: if a husband refuses to give police consent to search his house, may the police get consent from his wife and then go ahead with the search?
This question is important because a large number (perhaps the overwhelming majority) of warrantless searches are conducted on the basis of consent. The more flexible the concept of "consent," therefore, the more searches the police can perform, without a warrant, without probable cause, and without any real basis for believing that criminal activity is afoot.
Why Police Want Your Consent
Ordinarily, police must have a good reason to invade your privacy. If an officer wants to search your home, for example, the Fourth Amendment requires that she first obtain a warrant, after demonstrating to a neutral magistrate that she has probable cause to believe that she will find evidence of crime there. In the absence of a warrant (or an emergency explaining the failure to obtain a warrant), the police officer violates your constitutional right against unreasonable searches and seizures when she crosses the threshold of your home.
And even with a warrant, the officer must limit the scope of her search to the areas where the evidence she seeks might reasonably be located. In other words, she can't search your desk drawers for a stolen big-screen television.
But all of that changes when you consent. Once you give a police officer permission to search your home, you relieve her of the obligation to obtain a warrant and probable cause. You relieve her, as well, of the obligation to limit the scope of her search to correspond with her basis for suspecting wrongdoing.
A simple "go ahead" in response to the question, "do you mind if I look around?" converts what would have been an unlawful invasion of privacy into entirely legal activity. It forfeits the Fourth Amendment objections you might otherwise have had to the search.
So it is clear why police seek consent for searches -- it saves them a lot of trouble, and it opens doors that the Constitution otherwise keeps firmly shut. But why does anyone consent?
Why People Give Consent
As I elaborated in greater detail in an earlier column, the main reason people consent to searches is that they do not know any better. To many, a police officer's request for consent may sound like an empty gesture that does not truly allow for a negative response. The person to be searched may well hear an implicit "we could do this the easy way (with consent) or the hard way (without consent) -- it is up to you" in the police question. Who would prefer "the hard way" in the face of those alternatives?
But don't police tell the suspect that he has the right not to be searched? After all, when a suspect is arrested, he is told -- before any interrogation may take place -- that he has the right to remain silent. Doesn't the "consent search" scenario require essentially the same thing?
The Supreme Court has said no. According to the Court, the fact that a person might not know that he has the right to refuse consent to a search is merely one factor in the determination of whether his consent is voluntary. The Court has reasoned that the police need not give warnings (to eliminate any doubt about the suspect's knowledge of her rights), because warnings might detract from the informality of an otherwise friendly interaction between civilians and the police.
The Supreme Court has explained that "the community has a real interest in encouraging consent, for the resulting search may yield necessary evidence for the solution and prosecution of crime…." Furthermore, the Court has concluded, it would be "thoroughly impractical" to require an effective warning about the right to refuse.
Third Party Consent
It is with this perspective on consent searches -- as desirable events that should be understood to have occurred whenever plausible -- that the Supreme Court addressed the question of third party consent. Third party consent occurs when the person who gives police permission to perform a search is not the same person as the target of the search or the defendant in the later criminal prosecution.
You may have a roommate, for example, with whom you share a kitchen, bathroom, and living room in a two-bedroom apartment. The police suspect that the roommate possesses marijuana and has hidden it in the home you share. They either lack probable cause, and thus lack grounds for a search warrant, or do not want to bother to try convincing a judge that they are entitled to one. And they also believe that you are more likely to consent to a search of the common areas of the dwelling than your roommate is. So they ask for your consent to a search of the living room and bathroom.
You might say yes, because you either don't mind or don't think you have a choice. The police then search the medicine cabinet in your bathroom to find evidence connected to your roommate. Perhaps they find something. Perhaps they do not. Either way, legally, they have not violated the Fourth Amendment.
But what if it turns out that you didn't have actual authority to consent to the search of the medicine cabinets? Perhaps you and your roommate agreed that you would use the shelves on the wall, and your roommate would use the medicine cabinet, because he has an embarrassing infection and doesn't want his medications to be visible.
According to the Court, a lack of actual authority doesn't matter either. As long as the police reasonably believed that you had authority to consent and that your general consent to the search of the bathroom contemplated the medicine cabinet as well, the police have done nothing illegal.
Disputes Between Those with Common Authority: The Government's Side
It is in this context that the issue of disputes between people with common authority over the premises arises. The police receive consent to search from someone other than the search target or future defendant. But this time, the police have already requested consent from the target and received a negative response. Should the police be able to proceed with a search on the basis of the third party consent they subsequently obtain from a roommate or spouse?
It may seem obvious that the answer is yes - and that the case is therefore a slam-dunk for the government. If the well-established legal rule is that police need consent from only one party with common authority, then it follows logically that the existence of a nonconsenting other person with common authority is irrelevant.
After all, there is little difference between the target's saying "no" to a request for consent, on the one hand, and the target's not being asked or given an opportunity to say "yes," on the other -- either way, the target has not given anyone permission to search his home. If his consent is needed for a search, then the search is illegal. If it is not, then the search is fine.
Consider an analogy. You own a car. Someone who lives down the street from you decides to "borrow" that car. You leave your key in the ignition because it saves time when you're in a rush. Your neighbor gets into your car and drives around on various errands during the day, without ever asking you for permission or otherwise getting your authorization. That person has illegally taken possession of your car. It is no defense, moreover, for the person to say "well, you never said that I couldn't borrow it." The default rule is that he cannot borrow it -- it takes an affirmative act by you to change that default.
Therefore, the "borrower's" failure to obtain your permission to use the car is equivalent to his having expressly asked to borrow it and received a clear "no" in response.
In the same way, the government could argue, the failure to give consent for a search is legally indistinguishable from an affirmative response of "no" to a request for consent. If the former does not preclude third party consent, then the latter -- where police ask the target and he says "no" before they go to the roommate or spouse -- should not either.
Disputes Between Those with Common Authority: The Other Side
But this argument for the government -- persuasive on the surface -- is flawed.
Consider what happens when you share common authority over premises with another person. You can invite friends over to the house. You can authorize guests to use the bathroom or sit in the living room, and you can do these things without calling your roommate or spouse to make sure he's okay with it. But that is not because "yes" necessarily trumps "no" when it comes to understandings and expectations about shared spaces.
Rather, it is because the default of "no permission" changes when one of the people with common authority over the premises grants someone permission to enter -- whether a friend or a neighbor or the police. Once one of you invites a person in, the default becomes permission.
Consider again the car analogy. Your neighbor still wants to borrow your car, and he still has not asked for your permission. This time, however, he has asked your spouse, who co-owns the vehicle, and your spouse has said "okay." In this scenario, if your neighbor claimed that "your spouse said I could borrow the family car," and you believed that claim, then you would no longer have any reason to complain about your neighbor's actions. Your spouse, in other words, has the implicit authority to speak for both of you when someone requests permission to use your joint property.
Unless you say otherwise, your spouse's permission thus counts as permission from both of you. That is why your failure to raise an objection to the neighbor's borrowing the car -- recall the "you never said no" defense -- is meaningful when the other joint owner has said "yes," in a way that it is not when neither of you has granted permission.
If instead, however, your neighbor has asked you first and you have said no, his subsequently going to your spouse and getting permission would present a very different set of circumstances. Your spouse now no longer speaks for both of you, even implicitly, because you have already made your wishes known to the neighbor.
By failing to accept your refusal, the neighbor -- at the very least - has behaved improperly by seeking a different "ruling" from your spouse. You could now understandably complain about the neighbor's actions and say "I already told you no. Going to my spouse to ask for permission was out of line."
Now return to the consent search case. When the police officer asks you whether it is okay if she looks in the bathroom, your affirmative response speaks for both you and your roommate. If, however, your roommate has already refused consent, then you can no longer speak for him.
The question, at that point, really does become whether "yes" can trump "no" -- rather than whether people with common authority can consent to searches and entries on each other's behalf (prior law makes clear that they can).
The Court Should Rule Against the State
Let us take a step back and consider how important it is for police to be able to perform consent searches. The Supreme Court seems to think it is essential, saying that "a search authorized by a valid consent may be the only means of obtaining important and reliable evidence." But is the Court right to value consent searches so highly?
Consent searches that could not otherwise take place -- that is, searches that are not supported by probable cause, a warrant, or some other measure of reasonableness -- are, by that very index, unlikely to yield results. They are based on hunches and other unsubstantiated police guesses and thus, they frequently end with a needless invasion of privacy coupled with the waste of precious police time.
These fruitless "consent" searches typically happen below our radar, because police have no incentive to tell us about them, and they only rarely cause the sort of injury that would motivate a lawsuit. In the unusual case in which police guess correctly, we hear about the consent search, and that selective revelation conveys the misleading impression that something appropriate and reliable must have motivated the search in the first place.
The invasion of privacy, moreover, can be substantial, because people rarely feel that they have the right or the option of saying no when police ask for permission to search, no matter how extensively. And over time, police may come to feel entitled to get consent, which only emboldens them to ask for permission to search on flimsier grounds and with a greater air of legal rectitude.
But that is all set by existing Supreme Court precedents. The question now before the Court is a relatively narrow one: whether police should be able to "cheat" when it comes to consent -- ask dad, and when he says no, just go to mom or grandma, etc., until they hear the answer they want.
As rare as it is for people to exercise their right to privacy in the face of police "requests" for forfeiture, those assertions -- when they do occur -- deserve respect. If the Court holds otherwise, it will further whittle away the right against unreasonable searches and seizures -- the right to make police accumulate probable cause and seek a warrant from a neutral magistrate before showing up at your doorstep or your car window, hoping to look around.
Though the Court seems so far to have been mesmerized by the "need" to search without any basis for believing the search will yield results, it should wake up from its trance and close the door to your private spaces.
Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark.