Yesterday’s Argument in Georgia v. Randolph

It seemed the Supreme Court could go either way yesterday as it heard oral arguments in Georgia v. Randolph. This case, discussed in detail in this prior post, presents the question whether the Fourth Amendment permits police to search a home when one occupant consents but another occupant is present and objects to the search.

Georgia’s Senior Assistant Attorney General Paula K. Smith argued that it was reasonable for police to search under these circumstances because people who live with others have reduced expectations of privacy compared to those who live alone. She argued that the Court should adopt the position that any person with “common authority” over the property should be able to give police consent to a search, even if another occupant is present and objects. By contrast, Goldstein & Howe’s Tom Goldstein, who argued for respondent Scott Fitz Randolph, asserted that a person’s Fourth Amendment protections are not reduced simply by virtue of the decision to live with others, and he advocated the rule that police should not be able to search a home when faced with an objection from a co-occupant with equivalent authority over the common property.

Georgia’s position regarding expectations of privacy came under heavy attack from Justices O’Connor, Kennedy, and Scalia, all of whom expressed doubts that the average person would really expect a roommate or family member to admit a stranger to the home in the face of a fellow occupant’s express objection. Chief Justice Roberts, on the other hand, seemed to agree that living with others involves a compromise of individual privacy, and he queried whether that extended to giving a co-occupant the right to consent to police entry. Justice Breyer appeared open to the idea that social expectations might allow the police to enter in a situation where there was a chance of spousal abuse or danger to the consenting occupant. And Justice Stevens seemed to think that social understandings could vary case by case. Justice Souter, by contrast, thought that the real issue wasn’t expectations of privacy, but whether the search was “reasonable” in light of the personal and government interests involved.

Arguing in support of Georgia, U.S. Deputy Solicitor General Michael R. Dreeben urged the Court to focus on the positive law enforcement and social interests advanced by consent searches, namely, facilitating cooperation with police and vindicating a consenting occupant’s personal interests. But, as with almost every position advocated in this argument, the Court’s view of the benefits and necessity of these searches was mixed. Justice Kennedy emphasized that any government interest could be vindicated without allowing searches over an expressed objection. He pointed out that when police face an objecting occupant, they can still try to get a warrant, if a co-occupant wants to dissociate herself from criminal activity, she can tell police about it, and in a real emergency, police can enter without consent. From his relatively limited questions, Justice Stevens seemed to take a similar view.

Justice Breyer, on the other hand, expressed serious concerns about how the rule advocated by Mr. Goldstein would affect law enforcement’s ability to protect victims of domestic violence. He was worried that police would not be able to enter homes to protect victims of spousal abuse in situations where the abuser objected to a search, but the police did not have sufficient evidence to get a warrant and the situation wasn’t such an emergency that police didn’t need one. In response, Mr. Goldstein assured him that police could still easily speak with potential victims of domestic violence by doing so just outside the home, in a patrol car, or in areas of the house not subject to common authority.

Several justices were interested in the administrability of the rules proposed by each side. Justices Ginsburg and Kennedy seemed to think that Georgia’s position that any occupant with “common authority” over the premises had the ability to consent would give police the difficult task of figuring out what occupants met that standard. Justice Souter expressed doubts about whether either position was superior on this point – when Mr. Goldstein argued that telling police not to search over an objection provided a simple, bright-line rule, Justice Souter questioned whether telling them it was okay to search when they had consent from any occupant did not do just as well. Justice Roberts also pressed Mr. Goldstein with several hypotheticals, asking him what police should do in situations where there weren’t two occupants with equivalent interests, e.g., where ten students shared a dorm room and one objected while nine consented, or a situation where parents shared a home with their adult children.

Both sides drew on the Court’s prior precedent in United States v. Matlock and Illinois v. Rodriguez, where the court permitted police searches based on the consent of one occupant when another was absent or present but didn’t express an objection. During Georgia’s argument, Justices Ginsburg, O’Connor, and Scalia pressed the point that Matlock and Rodriguez did not involve a situation like this one where an occupant was present and told police he objected to the search. But, from the questions they addressed to Mr. Goldstein, Chief Justice Roberts and Justice Souter seemed to think those cases were similar – these justices emphasized that the target of the search in Matlock and Rodriguez probably would have objected if he had the chance to do so. Justice Souter, in particular, felt that relying on the requirement of an expressed objection would turn Matlock and Rodriguez into “silly cases.”

Chief Justice Roberts also focused on the implication of prior Court decisions holding that a person does not have a reasonable expectation of privacy in information that he or she turns over to third parties and that taping a phone conversation requires the consent of only one participant. He questioned whether those cases were analogous to the situation where a person decides to live with other people and whether that established that there should be a reduced expectation of privacy from living with others.

This case also presented a relatively rare opportunity to see Justice Thomas speak up during an oral argument. The typically quiet justice asked questions of both Mr. Dreeben and Mr. Goldstein. During the deputy solicitor general’s argument he appeared to support the view that there was no difference between allowing the police to enter a home over an objection and allowing one co-occupant to bring evidence outside to police. Later, he told Mr. Goldstein that his problem with the case was that the consenting co-occupant here simply led the police to drugs hidden in a bedroom. He seemed to take the view that it would be unreasonable to draw a distinction between leading the police to drugs and having one co-occupant bring the drugs to police.