It’s difficult to ascertain the position of any of the justices by their questions alone. While their questions may indicate a particular opinion, it is also entirely possible that the justices are playing the role of devil’s advocate. After hearing the oral arguments in Georgia v. Randolph, the Supreme Court could just as easily affirm or reverse the Georgia decision. Randolph presents the sole question whether a co-occupant may give law enforcement valid consent to search the common areas of a premise shared with another, even though the other occupant is present and objects to the search.
Petitioner’s Argument
Petitioner argued that under socially acceptable norms, co-inhabitants have a lowered expectation of privacy than those who lived alone. Furthermore, under the specific circumstances of the case, this dispute arose from a small Georgia town where the police officer was familiar with the respondent and his wife. The couple had common authority, which was known to the police officer because of his familiarity of the couple. Petitioner proposes that the court establish a position where any person with “common authority” be able to offer consent to the police to search, even over the objections of any occupant present.
Justice Ginsberg points out from Matlock that there is a degree of risk in the inability of person to control the premises when a person is absent. Moreover, an absentee person assumes such a risk. However, Justice O’Conner observes that Matlock only controls when the suspect is absent. Petitioner argues that even so, Rodriquez provides that once an officer has valid consent there is not a need for a warrant, and therefore, the suspect no longer has an expectation of privacy.
Among the justices, Justice O’Conner appeared most vocal against the notion that there was a reasonable expectation among family members or co-occupants that a stranger would be admitted within the household if an occupant expressly objected to that stranger’s presence. Justice Kennedy inquired whether other doctrines, such as the doctrine of necessity, would have been more appropriate under the circumstances. Justice Scalia seems to disagree that Rodriquez applies because in Rodriquez the suspect was merely silent and did not voice an objection. Scalia appeared hesitant to extend Rodriquez in this context because the suspect’s silence was neither an expression of consent or objection. The petitioner, nonetheless remained firm that mutual use gives rise to the authority to police consent.
Justice Souter, on the other hand, detracted from the “expectation of privacy” argument and focused on whether the search was reasonable when balancing the government interests against the individual’s interests. Souter remarked that although the suspect may assert privacy over the recognized shared-premises, this expectation is irrelevant in the instant inquiry.
Justice Breyer inquired into situations concerning domestic violence where there was a likelihood of spousal abuse or danger to the consenting occupant. Breyer appeared amiable that under such circumstances, consent over the husband’s objection would warrant the police’s search.
After 10 minutes of oral arguments, the Petitioner rested its case and does not make rebuttal arguments later.
U.S. Deputy Solicitor General’s Supporting Argument
The U.S. Solicitor General, in support of petitioner, takes a different approach. Rather than focusing on the reasonable expectations of the occupants, the government argues that courts favor consent. The government focuses on positive law enforcement, cooperation with the police, social interests, and the right for the cotenant to be independent. In cases similar to Randolph, the government observes that there will always be a degree of tension between the individual’s interests.
Chief Justice Roberts notes that whenever dealing with close relations, interests are often held hostage by one another. The government points out that the wife has an independent interest to disassociate from the criminal activity of her husband.
Justice Stevens extends the inquiry to common authority over personal items. Stevens poses the hypothetical of consent searches to suitcases when one person consents and the other person objects. In response, the government suggests that the Court could balance the interests of the parties by establishing a standard that encourages consent.
Scalia and O’Conner note that social value, not property law, is the basis of common authority. In one contention, Scalia asks whether probable cause existed merely by the wife saying that the husband is a cocaine user. To this, the government analogizes to MacArthur where the Court found probable cause to establish consent from apparent authority.
Apparently, this was one of the rare instances where Justice Thomas raised questions during oral arguments. Thomas questioned the government whether there was a difference between allowing the police to enter a home over the objection of husband as opposed to allowing the wife to be the evidence outside to the police. Thomas viewed little difference between the two situations and took the view that it would be unreasonable to draw such a distinction.
Overall, the Court’s view on the benefits and necessity derived from such searches was mixed.
Respondent’s Argument
Respondent, in turn, argues that under the Fourth Amendment, the act of living with others does not reduce the privacy protections afforded by the Constitution. Respondent notes that adopting petitioner’s position would, in effect, eliminate all sense of privacy within a family household arrangement. Respondent argues that it was unnecessary to sacrifice the expectations of privacy.
Justice Breyer draws on analogous social situations, such as dinner parties, where individuals may invite others over the objections of other co-occupants. In his questions, Breyer was speculative over the rule posited by the respondent. Breyer expressed concerns on the ability of law enforcement to protect victims of domestic disputes. Specifically, he questioned why the husband’s objection would overshadow the wife’s consent, thereby denying the police from entering the home. Breyer finds no support in case law to this proposition. Respondent concedes this point. However, respondent states that ongoing criminal activity would allow exigent circumstances to permit conversations in a safe environment, such as outside the home or in the police car. Respondent contends that there is no reason to intrude on constitutionally protected areas in ambiguous situations where the cotenants are in disagreement.
The justices were also interested in the ability of law enforcement to administer the rule posited by the respondent. Chief Justice Roberts offered a hypothetical where there were 10 occupants, rather than 2. In Roberts’s scenario, would one person’s objection veto the consent of nine others? The respondent conceded that in similar circumstances, the social expectation is that the minority could not veto the majority. Roberts then inquired about the validity of consent given by adult children. Roberts further questioned whether living with others are analogous to situations where information is given to third parties or taping of a phone conversation with the consent of one person.
Of the justices, Justice Souter seemed most adverse to the respondent. Souter expressed that respondent’s position would result in making Matlock and Rodriquez “silly.” Respondent answer that the bright line drawn in Matlock would remain intact and does not require the police to ask everyone.
Predications
The Court may either reverse or affirm the Georgia decision. In addition, the Court may opt to create a broad or narrow ruling. During the arguments, the Court mentioned differentiating between creating a bright-line rule as opposed to a case-by-case approach. It is unlikely that the Court will depart from the established rulings in Matlock and Rodriquez to create a new rule. Instead, the Court will likely extend Matlock and Rodriquez in a narrowed application to Randolph. The Court will likely do so by limiting its decision to either the fact specific situation or a public policy approach in domestic dispute situations.
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