Consent Case Analysis

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That the holding in this case is suspect can easily be understood by hypothesizing the following scene: a group of police officers are attending their equivalent of CLE, and being updated on recent search and seizure law.

The instructor poses the facts in Georgia v. Randolph, 126 S.Ct. 1515 (2006), to the officers: “you’re investigating a domestic violence complaint at a home; the wife gives you consent to search, but the husband objects. Can you search without a warrant?”

The police officers would likely not be sure, with good reason. It’s a difficult question, on which the Supreme Court split 5-3 (Alito, J., not participating).

The instructor would explain that the rule could have gone either way, and be justified; a good case can be (and was) made for both sides in the case. The court in Randolph recognized that it’s a “fine line” between lawful and unlawful, but that the court held it unlawful. “So don’t do it,” the instructor would caution.

Before leaving the topic of consent by joint occupants, the instructor would turn to the case at bar, explaining: “A woman says her husband battered her two weeks earlier, that he has drugs and guns in the house, and he’s a felon; she gives you the key to her house; she gives you consent to search it, but says her husband is at home.”

“Can you go into the house and obtain entry from the husband by subterfuge, pretending that his wife has been injured in an automobile accident, and then, once you’re in the house, arrest him, remove him from the scene, and search the house for guns and drugs?” he would ask.

A curious officer asks, “what if he doesn’t let you in?” to which the officer responds, “then you’ll have to go back and get a warrant.”

The officer continues, “Now that he knows we’re after him, won’t he flush all the drugs down the toilet while we’re getting the warrant?” to which the instructor responds, “Most likely.”

Another officer asks, “what if we ask him for consent to search, and he says no,” to which the instructor responds, “don’t ask him; if he says no, then you’ll have to go back and get a warrant.”

Yet another asks, “what if he simply tells us we can’t search, without our asking anything,” to which the instructor once again responds, “then you have to go get a warrant.”

Finally, one of the officer asks, “Wouldn’t it be alot easier just to get a warrant in the first place before we go out to the guy’s house?”

	Related Article Georgia v. Randolph distinguished

The instructor need not respond; the question answers itself.

Admittedly, a co-tenant can consent to search of joint premises, and if the husband were not home, the search would be unquestionably lawful. But reasonableness is still the touchstone, and this is not a reasonable procedure.

No circumstances justify not getting a warrant in this case. On the contrary, by proceeding in the fashion the officers did in this case, the officers are not acting to prevent destruction of evidence; they are inviting destruction of evidence by not getting a warrant, in the event DiModica did not let them in.

Furthermore, in Randolph, a legitimate question was raised by the dissent about the safety of the wife, given that the police had just received a domestic violence complaint (although the majority dismissed that concern). In the case at bar, there was no such concern; the alleged violence occurred two weeks earlier, and the wife was not in the home, but safely at the police station.

Thus, not only does this case not fall on the U.S. v. Matlock, 415 U.S. 164 (1974) side of the Matlock (lawful)/Randolph (unlawful) side of the “fine line” that governs consent in joint occupancy cases, it falls even further on the unlawful side than Randolph does.

– David Ziemer

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David Ziemer can be reached by email.