No Bickering Over Consent: The Supreme Court Correctly Decides A Search And Seizure Case

By SHERRY F. COLB

Wednesday, Apr. 05, 2006

Two weeks ago, the U.S. Supreme Court held, in Georgia v. Randolph, that when a resident denies the police consent to search his home, they may not search on the basis of another resident's consent. Justice Souter wrote the majority opinion, from which three Justices - including the new Chief Justice Roberts - dissented. The Court made the right decision, notwithstanding the dissenters' expressed concern for victims of domestic violence.

What Is A Consent Search?

Ordinarily, when the police wish to enter a person's home uninvited, they must obtain a warrant, supported by probable cause to believe that a search of the premises will turn up evidence of crime. In an emergency requiring immediate action, however, the police may enter without a warrant. Still, even an emergency does not justify entry in the absence of probable cause. In other words, the police need to have a good reason to invade the privacy of the home.

There is a context in which the police may forego both probable cause and a warrant, though, and that is the consent search. When a person gives the police consent to enter her home (or a home that she shares with others), the Fourth Amendment no longer requires police to have a reason for entering.

The Supreme Court's account of this departure from the normal Fourth Amendment requirements is that a person may voluntarily choose to give up her privacy for the police, whether to clear her name or for some other reason. By contrast to a decision to give up the right to a lawyer's representation, moreover, "[t]here is nothing constitutionally suspect in a person's voluntarily allowing a search," the Court stated in Schneckloth v. Bustamonte. Also, as I said in an earlier column about this case, each resident implicitly speaks on behalf of the others in saying "it's okay to come into my house."

Problems of Consent: Ignorance and Disagreement

Though the freedom to decide when to exercise one's rights can be a valuable thing, consent searches raise some difficult issues. One issue, which I discussed in a prior column, is the reality that many (and perhaps most) people do not feel free to refuse a police officer's request for consent. They may believe that he is authorized to search even if they do not consent, or they may worry that regardless of the law, he will do whatever he wants to do - and such people may also fear that a refusal will itself give rise to probable cause.

A second issue, one that arises in Randolph, is the potential for conflict between people who share authority over a home. In Randolph, the husband (and future criminal defendant) refused consent, and his wife granted it.

The Court had previously determined, in United States v. Matlock, that for the police to perform a valid consent search, they need only one person's permission, as long as they confine the search to areas within the consenter's authority or apparent authority. The Court has reasoned that part of what it means to share a home is to allow any one of the co-equal roommates to invite guests inside without having to consult the others.

In Randolph, the Court faced the question of what happens when a non-consenting resident is on the premises at the time the police arrive and explicitly objects to the officers' entry. As I argued in my earlier column about Georgia v. Randolph, such a situation properly calls for a different approach, because it can no longer be said that the resident who says "come in" is speaking on behalf of all of the other residents.

The Supreme Court apparently agreed with this assessment of social custom and held that police violated the Fourth Amendment when they entered the defendant's home at his spouse's invitation, in the face of the defendant's refusal to consent.

An Obstacle to Protecting Victims of Domestic Violence?

The dissenters in Randolph accused the majority of inventing the custom of respecting a resident's refusal of consent. The accusation was not well-founded, however. When more than one person lives in a home, whether the residents are married or not, a guest invited by one resident would understand that she should not enter the house if another resident is standing at the door refusing her admission.

A more troubling accusation, however, came in the form of a prediction: Chief Justice Roberts and Justice Scalia claimed in their respective dissents that without the ability to enter a home in the face of a spousal dispute over consent, the police will not be as effective at protecting women from domestic violence. If true, the Court's decision could prove dangerous to the literally millions of people in this country who suffer intimate partner victimization every year.

Fortunately, this accusation is without merit. Furthermore, it reflects significant confusion about the role of consent searches in the enforcement of the criminal law. Specifically, it rests on the assumption that police sometimes need consent to enforce the law.

This assumption ignores the fact that the Fourth Amendment authorizes police who have a good reason to enter premises to go ahead and do so. It is only when an officer lacks a good reason to enter without a warrant that he or she "needs" to resort to a request for consent. And in the absence of probable cause, it is entirely appropriate for a resident (and the law) to deny entry to the police. To claim that "consent searches" are very important is therefore to treat a consent search as a matter of police entitlement rather than a gratuitous courtesy to law enforcement that every person should feel completely free to withhold.

But what if a man is abusing his wife? Must the officers rely on consent to enter the marital home? No. If the police have good reason to think that a man is abusing his partner, they can and should enter the premises to investigate and to protect the victim. Indeed, if a woman says "he is abusing me," the police face an emergency that excuses the warrant requirement. Though it might turn out, in a rare case, that the woman is claiming abuse out of spite, this risk - of a lying witness - is an inevitable part of probable cause, and indeed of a criminal justice system that relies on the testimony of fallible and potentially dishonest witnesses, male and female alike.

To suggest that a woman's complaint of domestic violence is not enough, alone, to justify police entry is to insult victims of domestic battery. When police have good reason to believe that a violent crime is in progress in a private home, they can and should enter that home, regardless of whether anyone consents to their doing so. The proper enforcement of laws against spousal violence therefore has no implications for the scope of Fourth Amendment consent. As the majority put it, "this case has no bearing on the capacity of the police to protect domestic victims."

I am heartened to see the Supreme Court Justices, in developing the constitutional law of privacy, expressing concern for women's safety. For far too long, the law left women in the U.S. at the mercy of their husbands - by, among other things, exempting marital rape from punishment and classifying spousal abuse as a relatively innocuous offense, all in the name of treating a man's home as his castle. Even with changes in the law, moreover, marital violence continues to terrorize far too many women, and the law has not done enough to deter and punish offenders.

Allowing one resident's consent to trump another's refusal, however, will do nothing to help victims of intimate violence. Where a victim feels frightened enough to call the police and ask for help against an abuser, the Fourth Amendment poses no legal obstacle to police entering the marital castle and arresting the king. And when nothing of the kind is happening, and police wish to look for drugs, they can apply for a search warrant. Either spouse should be able to exercise the right to turn away unwanted guests, even when the guests happen to be officers of the law.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her other columns, including other columns on criminal procedure, may be found in the archive of her columns on this site.

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