The case of the uncooperative husband.

After a spate of uninteresting unanimous opinions this term, the Supreme Court finally delivered a ruling in a criminal case that generated fiery debate from the justices and a circus-like feeling among Supreme Court watchers (who are, to be sure, easily amused).

In the center ring, the case itself: Georgia v. Randolph, (1) which concerned a narrow and relatively uncommon issue of Fourth Amendment consent law that gave rise to surprisingly sharp remarks in the opinions. The question Randolph raised was whether police officers have valid consent to search a home if one occupant of the dwelling grants permission but another refuses. The answer, by a 5-3 vote, was no.

Janet Randolph of Americus, Georgia, came home after taking her son on a sojourn to her parents' house in Canada following a marital dispute. At some point after their return, she discovered that her husband had taken their son away. It was unclear whether Janet had returned to clear out her property or to attempt a reconciliation. Her call to police expressed no fear of violence.

While police officers were on the scene, her husband, Scott, arrived at the home. He explained that he had placed the son with a neighbor to keep his wife from taking him out of the country again. (2) Janet then told the officers that her husband was a drug abuser and that they could find evidence of this inside the house. She gave them consent to search the premises; her husband refused. The officers entered the home, and in the bedroom they found a piece of a drinking straw with white powder on it, which they seized.

At this point, Janet withdrew her consent. The police officers removed the Randolphs from the scene, got a search warrant, and searched again, uncovering more evidence of drug use.

The Georgia appellate courts ruled that Scott's refusal invalidated his wife's consent. All the federal courts of appeal, and most of the state courts, had ruled the opposite way on this issue. But those rulings were based on the Court's decision in United States v. Matlock, which held that "the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared." (3) Obviously, the distinction between this case and Matlock, as both the Georgia courts and the Supreme Court noted, is that Scott Randolph was not absent. He was there on the scene and asserted his objection in person.

But as Chief Justice John Roberts (in his first dissenting opinion) quite reasonably asked, if a wife has full authority over shared premises, why should the husband's objections matter? (4) Why would the result be different if Scott had been in the family room watching television, asleep in the bedroom, or absent altogether?

The majority attempted to justify its conclusion with a lengthy--and unconvincing--discourse on the etiquette of inviting in visitors. The majority opinion by Justice David Souter claimed that social conventions allow a visitor to enter a home on a tenant's invitation if an objecting co-tenant is not home, but that "no sensible person would go inside" if the co-tenant was present. (5) (Souter, apparently, never shared a college apartment with an inconsiderate roommate or a home with a difficult spouse who proclaimed, "I will have whoever (sic) I want over to my house whether you like it or not!")

The dissenters rightly pointed out that such social conventions, while they may help define expectations of privacy to determine whether a certain police action is a search, are irrelevant to analyzing "whether a particular person has standing to object to a search." (6) However these conventions may apply to friends and neighbors, they are different when it comes to the police.

It's a close call, but I agree with the majority that it is unreasonable to allow an exception to the so-called warrant requirement based on consent when one co-occupant has specifically refused to consent. The Court has consistently given special protection to the home in its Fourth Amendment jurisprudence. All the same, it was unfair for the majority to remark that "in the dissent's view, the centuries of special protection for the privacy of the home are over." (7)

The Court went out of its way to stress the narrowness of its opinion and, in case anyone missed it, Justice Stephen Breyer repeated the same points in his concurring opinion: Had Scott not been physically present and stated his refusal, his wife's consent would have been sufficient, as Matlock held; and had this case involved domestic violence or any other emergency, Scott's refusal would have been immaterial. In such cases, the right of police officers to enter would be based not on consent but on the exigent circumstances.

In fact, the majority went further, "recogniz[ing] the consenting tenant's interest as a citizen in bringing criminal activity to light." (8) So a co-tenant could simply hand over incriminating evidence to the police. Or the police officers could recognize that the co-tenant's information constitutes probable cause and seek a search warrant while keeping "the objecting tenant ... from destroying ... evidence" or, if that was not possible, entering the home under the "exigent circumstances" exception to protect the evidence. (9)

Finally, the majority correctly stressed that "no question has been raised, or reasonably could be, about the authority of the police to enter a dwelling to protect a resident from domestic violence...." (10) The majority conceded that the line it had drawn was "fine" but felt it was also simple for police to apply. (11) Indeed, it is so narrow that it's hard to see why it generated any dissent at all.

But dissenters held that this leads to "a complete lack of practical guidance for police in the field, let alone for the lower courts." (12) Moreover, "the majority's rule apparently forbids police from entering to assist with a domestic dispute if the abuser whose behavior prompted the request for police assistance objects." (13)

Neither of these criticisms is fair. The majority rule is (mostly) straightforward: ff a co-tenant with apparent authority (14) is present and objects to a search, there is no consent to a search. And the majority makes it clear that the police can still intervene in an emergency.

A sensible new rule?

Part of Roberts's objection may be based on justifiable confusion about what the majority is saying. The chief justice correctly notes that the holding creates an "entirely new framework for analyzing exigent circumstances." (15) He is referring to the conclusion that the police may enter a home if they have "good reason to believe that such a threat [of domestic violence] exists." (16)

It's true that this is a new rule, but it's a sensible one. The Court has never addressed the issue of what standard of proof is required for police to enter a building to rescue an occupant from a violent situation. In general, exigent-circumstance entries--those made to catch a fleeing felon (17) or to protect evidence from destruction (18)--require probable cause. But surely the Courtis correct to apply a more lenient, Terry-type standard when police officers are acting to protect themselves or others (19)--although the decision presents this new rule in an offhanded way.

So why does Roberts object to this new, more lenient, rule, if his concern is domestic violence? Apparently because the majority went on to muddy the waters by quoting Fourth Amendment expert Wayne LaFave to suggest that, in such an emergency situation, the consent of the one co-tenant becomes revalidated over the objection of the other. (20) As Roberts points out, under the majority approach, "police may now enter with a 'good reason' to believe that 'violence (or threat of violence) has just occurred or is about to (or soon will occur).' ... And apparently a key factor allowing entry with a 'good reason' short of exigency is the very consent of one co-occupant the majority finds so inadequate in the first place." (21) But in such a situation, consent should be irrelevant.

Roberts is right that the majority messed up here, but he is wrong to throw the baby out with the bathwater. It's a pity the Court didn't work this out behind the scenes and present us with the sensible rule that's present--but obscured--in the majority opinion: that there's no consent in this situation, but if the police have a reasonable suspicion of danger to themselves or others, then a warrantless entry is justified, regardless of consent.

Roberts further--and again correctly--criticizes the majority for suggesting that the evidence the police found might have been used against the wife (or someone else). (22) If there is no valid consent to a search when one tenant refuses it, then the police simply can't enter at all, and they can't use the evidence against anyone, including a third tenant. The majority left this issue for another day. (23)

Roberts cites United States v. Davis (24) to note that the existence of exigent circumstances is an inadequate justification for dealing with domestic disputes. In Davis, the Tenth Circuit found no exigent circumstances in a case where police officers responded to a domestic violence call and, arriving at the home, spoke with a man who said his wife was out of town. The wife then appeared at the door, seemingly unharmed, and tried to prevent the defendant from closing the door.

The police officers insisted on entering, whereupon Mr. Davis opened the door and ordered his wife outside while he retreated into the house. The police entered despite Mrs. Davis's refusal to consent, claiming that they feared Mr. Davis was going for a gun. Once inside, they found marijuana.

Since the officers "could have checked [the wife's] condition without entering the home," the court dismissed their exigent circumstances argument. (25) While one could dispute this assessment of what constitutes an exigent circumstance, clearly this case--the only one of this type Roberts discussed--does not support his claim that the majority rule will somehow prevent police from protecting victims of domestic violence. Arguably, the police had a reasonable suspicion of domestic violence here that justified entering the home, regardless of anyone's consent.

Police motivations

Roberts raises another confusing point in the Court's decision. (26) The majority rule, he complains, depends on the "subjective motivations" of the police officers, and he cites Whren v. United States (27) to the effect that "subjective motivations of police officers in assessing Fourth Amendment questions" are irrelevant. (28)

On the contrary, the question of police officers' motives--whether they are acting to protect someone or to search for evidence--is critical in this case, as it has been in others. (29) To allow an exigent-circumstance entry when the police don't have good reason to believe that there's an emergency, even though a reasonable person might believe it, would be outrageous.

Suppose, for example, that police officers hear a scream from an apartment and burst in--and then find drugs. Later, the officers admit that they knew the scream came from a horror movie playing on the television that night, but since they believed that the apartment belonged to a drug dealer, they broke in anyway. Just because a "reasonable policeman" who didn't know about the movie might have believed that there were exigent circumstances does not justify entry by police who knew that there was no emergency.

Whren held that the subjective motivations of the police to investigate Crime A when they arrest with probable cause for Crime B are irrelevant. But this does not mean police intent is always irrelevant in Fourth Amendment cases, as Roberts claims. (30) The majority view of exigent circumstances illustrates how police intent comes into play.

Moving on to the second ring of our circus: Justices John Paul Stevens (who joined the majority opinion) and Antonin Scalia (who joined the dissent) engaged in a sumo-wrestling match over original intent.

Stevens said this case shows that original intent is not very useful in actually resolving cases because, under the law as the framers understood it, a woman had no property rights, making her consent irrelevant. (31) Scalia, who deems people who disagree with his originalism "idiots," (32) shoved back that the (unchanging) Fourth Amendment nevertheless accommodates changes in the meaning of "property," as defined by developing law. (33)

And finally, in the third ring: Justice Clarence Thomas, who did not join Roberts's dissent, raised an argument similar to one the chief justice made. Roberts's point was that since Janet Randolph could simply have handed evidence of her husband's cocaine use over to the police (as the majority concedes), it makes little difference to allow her to let the police come in and find it themselves.

Thomas, citing Coolidge v. New Hampshire, (34) argued that since it would not be a search under the Fourth Amendment for Janet to go get the cocaine, it also wasn't a search for the police officers to enter her home (and find it) with her consent. There is some support for this view in Coolidge, (35) but the better view is that this search's validity hinges on the contested consent.

In the end, despite much sound and fury from the dissenters, Randolph creates an extremely narrow rule: A consent to search is invalid if a present co-tenant objects, but this does not prevent police officers from entering if there are exigent circumstances, or from using a cotenant's statements as probable cause for a warrant. And if they choose to get a warrant, police officers may also prevent the occupants from destroying evidence while the warrant is sought.

Notes

(1.) 126 S. Ct. 1515 (2006).

(2.) Id. at 1519.

(3.) 415 U.S. 164, 170 (1974). Another passage from Matlock, quoted by the dissent, stated that proof of voluntary consent "is not limited to proof that consent was given by the defendant," but the government "may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises." Id. at 171.

(4.) Randolph, 126 S. Ct. 1515, 1531.

(5.) Id. at 1523.

(6.) Id. at 1532. Technically, this is not a question of "standing," which Randolph clearly had, but of whether his objection had any force.

(7.) Id. at 1524 n.4.

(8.) Id. at 1524.

(9.) Id. at 1525 n. 6 (citing Illinois v. McArthur, 531 U.S. 326 (2001)).

(10.) Id. at 1525.

(11.) Id. at 1527.

(12.) Id. at 1539 (Roberts, C.J., dissenting).

(13.) Id. at 1538.

(14.) See Illinois v. Rodriguez, 497 U.S. 177 (1990) (which employs this test to ascertain whether a consent is valid in the absence of objection).

(15.) Randolph, 126 S. Ct. 1515, 1538 (Roberts, C.J., dissenting).

(16.) Id. at 1525.

(17.) Warden v. Hayden, 387 U.S. 294 (1967).

(18.) Illinois v. McArthur, 531 U.S. 326 (2001).

(19.) See Maryland v. Buie, 494 U.S. 325 (1990) (allowing a "protective sweep" of houses that the police are already legitimately inside on reasonable suspicion of danger).

(20.) Randolph, 126 S. Ct. 1515 (quoting 4 WAYNE R. LAFAVE, SEARCH AND SEIZURE [section] 8.3(d), at 161).

(21.) Id. at 1526.

(22.) Roberts points out that the majority frequently states that the search was invalid "as to him" (Scott), suggesting that it might have been valid "as to" Janet or someone else. Randolph, 126 S. Ct. 1515, 1536 (Roberts, C.J., dissenting).

(23.) Id. at 1526 n.8.

(24.) 290 F.3d 1239 (10th Cir. 2002).

(25.) Id. at 1243.

(26.) As detailed in Craig Bradley, The Reasonable Policeman: Police Intent in Criminal Procedure, MISS. L.J. (forthcoming 2006).

(27.) 517 U.S. 806, 812-13 (1996).

(28.) Randolph, 126 S. Ct. 1515, 1537 (Roberts, C.J., dissenting).

(29.) See, e.g., Buie, 494 U.S. 325; Minnesota v. Dickerson, 508 U.S. 366 (1993) (allowing a frisk for weapons but not a frisk for the purpose of finding evidence).

(30.) See, e.g., Terry v. Ohio, 392 U.S. 1 (1968) (requiring a "reasonable suspicion" that "criminal activity is afoot" before a stop is allowed) and Payton v. New York, 445 U.S. 573 (1980) (requiring that police have "reason to believe" that a suspect is within before executing an arrest warrant at a home). See Bradley, supra note 26, discussing these and other cases.

(31.) Randolph, 126 S. Ct. 1515, 1529.

(32.) See, e.g., The Over-the-Top Justice, N.Y. TIMES, Apr. 2, 2006, at 11.

(33.) Randolph, 126 S. Ct. 1515, 1540 (Scalia, J., dissenting).

(34.) 403 U.S. 443 (1971).

(35.) Id. at 489.

CRAIG M. BRADLEY is the James Louis Calamaras Professor of Law at Indiana University School of Law in Bloomington. He can be reached by e-mail at [e-mail].