'Come In,' She Said

James J. Kilpatrick
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Posted: Jan 10, 2006 11:37 AM

In May 2001, Scott and Janet Randolph were having, as a Georgia judge politely put it, "marital problems." According to the record, he was into cocaine and she was into booze. Finally she packed up their infant son and "a great deal" of her clothing and went home to her family in Canada. On or about July 4, she returned to their home in Americus. Two days later she called the cops. And so this legal tale began.

The constitutional issue is a recurring question of Fourth Amendment law. Over the past 25 years, eight federal circuits and 11 state supreme courts have tackled it. The U.S. Supreme Court last addressed it 30 years ago. The roots go back to Magna Carta.

Under the Fourth Amendment, the right of the people to be secure in their houses against "unreasonable" searches and seizures shall not be violated. You decide: Was this search "reasonable"? These were the underlying facts in Georgia v. Randolph , No. 04-1067.

In response to Janet's telephone call, two officers responded. She was distraught: She told the cops he was sniffing cocaine. He told the cops that she was nipping on a bottle. This did not improve her temper. Things bubbled from simmer to boil. In her wrath, she said drugs were on the premises. One officer asked Randolph if they could check the house for drugs. He said, emphatically, no. The officer then sought permission from Janet. Still sore, she not only agreed, she willingly led the officer to an upstairs bedroom. Have a look! Help yourselves! An array of drug paraphernalia was in plain view. Then, having consented, she repented. Too late!

Officers obtained a warrant and completed a thorough search. A grand jury indicted Randolph for possession of cocaine. He moved to suppress the evidence as a violation of his Fourth Amendment rights. Exactly a year ago, the Georgia Supreme Court granted his motion and vacated the charge. The state appealed to the U.S. Supreme Court.

In the Georgia court's view, where two persons have equal use and control of the premises at issue, one occupant's consent to search is not valid if the other occupant is physically present and objects. Randolph was and did. At Tuesday's oral argument, several justices appeared to be unpersuaded by the lower court's reasoning. Justice Stephen Breyer wondered "why the husband has more right to keep (the police) out than she has to let them in."

Deputy U.S. Solicitor General Michael Dreeben, arguing in support of the state's position, made a convincing argument (or so it seemed to me) that police acted lawfully upon Mrs. Randolph's solo authorization. Dreeben relied chiefly upon the Supreme Court's opinion in the case of William Matlock, a small-bore thief who robbed a Wisconsin bank in 1971. Matlock concealed his $4,995 loot in a bedroom he shared with his common-law wife. She agreeably permitted police to search (though she later regretted it).

Matlock was indicted and brought to trial, but the 7th Circuit ruled that the evidence should have been quashed. The government appealed to the Supreme Court, where Justice Byron White spoke for a 6-3 majority. It is sufficient, said White, that police obtain the consent of "one who possesses common authority over premises or effects." The hapless Matlock had assumed the risk that his girlfriend would not rat on him. Win a few, lose a few.

Listening to this week's oral argument at the high court, I was struck once more by the infinite applications of the Fourth Amendment. The key word is "unreasonable." When a police search is authorized by a formal warrant, properly sworn and properly executed, there is often no question over the admissibility of evidence so seized and introduced at trial. But it is astonishing how many objections defense counsel can raise: The garbage was not on the sidewalk, but in the garage. The evidence was in the hotel wastebasket before the room was cleaned. The marijuana was discovered through aerial surveillance or heat detection. And so on.

My guess is that after this week's argument, the Supreme Court will reverse the circuit court and let the evidence back in. Hell hath no fury, et cetera, et cetera.