Georgia v. Randolph: What you need to know about the Fourth Amendment and consent.

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Spouses have gotten each other in trouble since Eve tempted Adam with the apple. Today's consequences however reach far beyond the mere loss of innocence. This fall the Supreme Court will determine if a spouse can legally waive his or her spouse's Fourth Amendment right to be free from unreasonable searches. In Georgia v. Randolph, set to be heard after a three month hiatus, the Justices will be forced to reconsider how they define the very concept of privacy.

As the story goes

Janet Randolph and her husband, Scott, had a tumultuous marriage. In fact, it was her call to the police and her subsequent complaint of Scott's abuse and child kidnapping that prompted police suspicions. When Scott arrived home after the disturbance was reported, the police were ready for him. Scott refused to give the police permission to search the couple's home. Janet, however, consented and by the time the police finished searching the home, they had found cocaine residue. In a panic, Janet attempted to withdraw her permission but the police already had all the evidence they needed to obtain a search warrant. With the warrant in tow, the police were able to find 25 drug-related items and Scott was charged with possession.

The Fourth Amendment, simplified

In basic terms, the Fourth Amendment says the police must have a justifiable reason to search you, your possessions or your home. It was originally conceived to protect colonists against a military state. Yet even today, it speaks to protecting the rights of the individual from an overzealous police force.

The Fourth Amendment protects the individual through the use of a warrant; police are required to have one to arrest you or perform a search. In practice, there are a few exceptions to the warrant policy, such as emergency circumstances. If the police are chasing down an escaped convict in your neighborhood, they could search any house where they thought the fugitive was hiding without a warrant. Why? In emergencies, the courts recognize that time is a critical component in both capturing a criminal and obtaining evidence. Delaying an emergency search to obtain a warrant would be impractical.

Consent, the central issue in Georgia v. Randolph, is another area of exception. The police have the right to search a person, thing or place as long as they have the valid permission of the person, the owner of the thing or the occupant of the home. The question in Georgia v. Randolph is: whose permission is valid? Is it the husband's consent, the wife's consent or both?

A brief history of valid consent

Historically, American courts have said when two people live together they share a common "authority" over the dwelling. According to U.S. v. Matlock, each person has the power to give valid consent to police. As long as one person voluntarily consents to a search, any evidence obtained can be used against the roommate or significant other.

In fact, Matlock is the famous 1974 case which will likely serve as the foundation for the Supreme Court's decision. In this case, the police arrived at the couple's home and quickly arrested robbery suspect Matlock. Eager to obtain evidence, the police did not ask Matlock for his permission to search the couple's home. Instead, they approached a woman who identified herself as Matlock's wife.

Matlock's wife permitted the search. In fact, she led police to their bedroom where they found money he was suspected of stealing. He was charged, and the money was used against him at trial. The only problem was that the woman who gave consent was not his wife. And thanks to a Wisconsin law banning unmarried cohabitation, she was in violation of the law. The key issue became whether or not she could provide the police with a valid, legal consent to search particularly if she was living with him illegally.

The Supreme Court basically concluded that when two people live together, they share authority to give consent - either person can give it. At the same time, both people assume the risk that the other might agree to a search of the premises while the other is gone. In other words, you can't control what goes on in your absence.

But what should you assume when both occupants are home? This time around, the Supreme Court will address this exact question and then decide what should happen if one consents and the other refuses.

What's at stake in Georgia v. Randolph

The essence of privacy is very much at stake in Georgia v. Randolph. The home is consistently the most protected space under the Fourth Amendment, a fact which has held true through both conservative and liberal Supreme Courts.

So how have Randolph's attorneys argued the case so far? According to his defense team, Janet Randolph's consent to the search does not override her husband's prior refusal.

The Georgia Supreme Court agreed. After making its way through the state's appeals system, the Georgia Supreme Court held that Randolph's argument was absolutely valid. In the Matlock case, valid consent was distinguishable because he was never directly asked and he never directly refused. In the Randolph case, on the other hand, Scott very clearly refused when police directly asked for permission to search. The bottom line: Janet simply could not waive her husband's Fourth Amendment right after he had already exercised it.

The ultimate decision

The ultimate decision lies with the Supreme Court. Of course, the State's attorneys will continue to argue the precedent of Matlock. A warrant-less search, conducted in the absence of probable cause, is valid when one occupant gives permission for the search, even if a co-occupant objects. They will presumably cite U.S. v. Matlock as the law of the land, arguing that Scott Randolph assumed the risk that his wife Janet, who had common authority over the premises, could permit a search of the premises. Better defining valid consent and, in turn, the Fourth Amendment, will help us all answer the age old question asked of most couples living together: in each household, who is it, legally, that wears the pants?