Joint Appendix — Georgia v. Randolph

No. 04-1067

In The

Supreme Court of the Anited States

SJ

STATE OF GEORGIA,

Petitioner,

V.

SCOTT FITZ RANDOLPH,

Respondent.

+

On Writ Of Certiorari

To The Supreme Court Of Georgia

+

JOINT APPENDIX

.

PAULA K. SMITH WILLIE T. GAMBLE, III

Counsel of Record for Counsel of Record for

Petitioner Respondent

Senior Assistant Attorney’ COLLIER & GAMBLE, LLP

General 177 S. Main Street

Post Office Box 577

THURBERT E. BAKER Dawson, Georgia 39842

Attorney General (229) 995-5657

MARY BETH WESTMORELAND (229) 995-6667 facsimile

Deputy Attorney General

GEORGIA DEPARTMENT OF LAW

40 Capitol Square, S.W.

Atlanta, Georgia 30334-1300

(404) 656-3351

(404) 651-6459 facsimile

Petition For Certiorari Filed February 4, 2005

Certiorari Granted April 18, 2005

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

ee SIRS TID cinintsctcncnnscsnniennnininnninininininmnnine 1

Motion to Suppress, filed January 17, 2002.................... 2

Brief in Support of Defendant’s Motion to Suppress

Illegally Obtained Evidence, filed January 25,

TTI <cesicttseeaivasieapciapieiecesiebantaninataatcashielinbeetiapeiatiabanensettiansainiiaiadanbieetiabieseti 6

State’s Brief Opposing Defendant’s Motion to

Suppress, filed October 3, 2002..............sssecrcscsssseeeeeesees 16

Order Denying Motion to Suppress, filed October

ik, Maeeeeelcsnssvedendeccmnercasanadicidiiatsinduubijaatiaiusiseaeiauiaasaiiniasnidials 23

The following opinions, judgments, and orders have

been omitted in printing this joint appendix because they

appear on the following pages in the appendix to the

Petition for Certiorari:

Opinion of the Court of Appeals of Georgia, Georgia

v. Randolph, 264 Ga. App. 396, 590 S.E.2d 834

ITETE scavennsevnsentennsimennininianonenieneiionsnediniiniamipabii App. 7

Opinion of the Supreme Court of Georgia, Georgia v.

Randolph, 278 Ga. 614, 604 S.E.2d 835 (2004)........ App. 1

1

CHRONOLOGICAL LIST OF

RELEVANT DOCKET ENTRIES

Nov. 27, 2001 — Indictment against Scott Randolph

filed in the Superior Court of Sumter County, Georgia

Jan. 17, 2002 — Randolph filed a motion to suppress

Jan. 25, 2002 — Randolph filed a brief in support of the

motion to suppress

Oct. 3, 2002 — State filed a brief opposing Randolph’s

motion to suppress

Oct. 3, 2002 — Evidentiary hearing held on the motion

to suppress

Oct. 17, 2002 — Order entered by the Superior Court,

denying Randolph’s motion to suppress

Nov. 26, 2002 - Order entered by the Court of Appeals

of Georgia, granting Randolph’s application for interlocu-

tory appeal

Dec. 4, 2002 — Randolph’s notice of appeal filed

Dec. 1, 2003 — Opinion of the Court of Appeals of

Georgia

Nov. 8, 2004 — Opinion of the Georgia Supreme Court

2

IN THE SUPERIOR COURT OF SUMTER COUNTY

STATE OF GEORGIA

as Cae - INDICTMENT NO.

Vs. . 2001-SU-R-699

SCOTT FITZ RANDOLPH, : POSSESSION OF

’ COCAINE

Defendant. ;

MOTION TO SUPPRESS

(Filed January 17, 2002)

NOW COMES SCOTT FITZ RANDOLPH, Defendant

in the above-styled action, by and through his Attorney of

Record, with prior leave of the Court, aggrieved by unlaw-

ful searches and seizures made by the state and local

officers under purported authority did seize certain de-

scribed property, namely alleged cocaine and cocaine

residue, moves this Court to quash said warrants and

indictments, and to suppress as evidence any object,

article, thing or other evidence gained or thereafter gained

by state, local, and/or federal agents.

1.

Defendant shows that he is charged in the above- |

styled indictment with the offense of possession of cocaine

and that he denies said allegations in their entirety.

2.

The Defendant further alleges that the alleged cocaine |

seized at his residence and office will be offered as evi-

dence against him at any trial of the above-styled charges

in said indictment and that further and finally all of the

3

charges set forth in said indictment are the result of this

illegal search and seizure aforesaid.

3.

Defendant shows that on the date of the arrest Defen-

dant was present at his home with his wife, Janet

Randolph. Officers had appeared at the residence in

response to a domestic disturbance call.

4.

The officers present requested the right to search the

residence of Scott F. Randolph and Janet Randolph. Janet

Randolph granted permission to search the home, but

Scott F. Randolph steadfastly refused to grant said per-

mission. .

5.

In addition, this residence also served as an office for

the law practice of Scott F. Randolph and Scott F.

Randolpk. explicitly denied permission for the officers to

search this office, which was solely in his control and

dominion and reiterated his refusal to allow the search of

the home withcut a warrant.

6.

Despite the refusal of Scott F. Randolph to allow the

search of the home and his office, the officers proceeded

forward with the search, without a warrant, and with-

out permission. Furthermore, once the search ensued,

the Defendant’s wife, Janet Randolph, withdrew her

4

permission and consent to search the home and the offi-

cers continued and ignored her request to withdraw

permission.

7.

The action performed by law enforcement in searching

the home and office of Scott F. Randolph were in violation

of Scott F. Randolph’s Fourth Amendment due process

rights, guaranteed under the United States Constitution,

and the Georgia State Constitution and constitute an

illegal search and seizure, which is prohibited by both the

United States Constitution and the Georgia State Consti-

tution.

WHEREFORE, the Defendart prays and demands

that his Motion bye inquired into by this Honorable Court;

and

(a) That a day certain be set requiring the District Attor-

ney of the Sumter County Superior Court to be and

appear at a certain time and day to show cause why

the prayers and demands of this Defendant should not

be granted; and

(b) That this Honorable Court issue its Order suppressing

any unreasonably obtained evidence and testimony

relevant thereto, together with any after-gained evi-

dence or testimony, and rule further the same inad-

missible upon the trial of the charges set out in the

above-numbered indictment.

5

Respectfully submitted this 17th day of January,

2002.

COLLIER & GAMBLE

/s/ W.T. Gamble III

W.T. Gamble, III

Attorney for Defendant

CERTIFICATE OF SERVICE

This is to certify that I have this day served Richard

E. Thomas, Special Assistant District Attorney at 1216

Dawson Road, Suite 202, Albany, Georgia 31707, with a

copy of the foregoing matter by depositing in the United

States Mail, a copy of same in a properly addressed enve-

lope with adequate postage thereon.

This 17th day of January, 2002.

/s/ W.T. Gamble III

W.T. Gamble, III

This Document Prepared By:

/s/ W.T. Gamble I] __

W.T. Gamble, III

State Bar No.: 0283170

COLLIER & GAMBLE

Attorneys at Law

P.O. Box 577

Dawson, Georgia 31742

(912)995-5657

bnp

6

IN THE SUPERIOR COURT OF SUMTER COUNTY

STATE OF GEORGIA

STATE OF GEORGIA,

Plaintiff,

- CRIMINAL INDICTMENT

Ve. NO. 01-R-699

SCOTT FITZ RANDOLPH,

Defendant.

BRIEF IN SUPPORT OF DEFENDANT'S

MOTION TO SUPPRESS ILLEGALLY

OBTAINED EVIDENCE

(Filed January 25, 2002)

Comes now the Defendant, Scott Fitz Randolph, by and

through his attorney of record, W.T. Gamble, III and files

this his brief in support of his motion to suppress which was

filed with the Clerk of the Superior Court of Sumter County

on the 17th day of January 2002 as follows:

FACTS OF THE CASE

On or about the 6th day of July 2001 law enforcement

officers responded to a domestic disturbance call at the

home of Scott Fitz Randolph and his wife (at the time)

Janet Randolph. Upon arriving at the scene, the officers

discovered that the couple had been arguing as a result of

a marital dispute. The police officers at the scene asked if

they could be given permission to search the marital home

of the parties and Janet Randolph initially gave her

consent for the home to be searched. Scott Fitz Randolph

was present during this entire conversation and vigorously

objected to granting permission for the search of the

marital home. In addition, Scott Fitz Randolph’s law office

7

was maintained in a portion of this home and he objected

to any search of this property as well. The police officers

did not have a valid search warrant at the time they

responded to the domestic disturbance call and no search

warrant was obtained prior to the police officers beginning

their search of the marital home. Despite the objections by

Scott Fitz Randolph, the police officers proceeded to search

the home including Scott Fitz Randolph’s office. At the

conclusion of the search, the law enforcement officers

alleged that cocaine was found in the home, discovered in

the office of Scott Fitz Randolph, and subsequently Scott

Fitz Randolph was arrested for possession of cocaine. Prior

to the discovery of any alleged illegal substance, however,

Janet Randolph also withdrew her permission for the

search to continue and despite this withdrawal, the police

continued to search discovering the alleged illegal contra-

band. Defendant Scott Fitz Randolph contends this search

was illegal and in violation of the 4th Amendment of the

United States Constitution and the 4th Amendment of the

_ Georgia State Constitution. Furthermore, Defendant

contends that the search was unreasonable under the 4th

Amendment and not within any of the few specifically

established and well delineated exceptions as discussed

and ruled in the case of Katz vs. United States, 389 US

347, 357, 88 SE 507, (1967).

ARGUMENT AND CITATION OF AUTHORITY

In Katz, the United States Supreme Court ruled, and

discussed in great detail, a search without prior approval

by a judge, or magistrate, or the issuance of a warrant

would generally be per se unreasonable unless it met a few

well delineated exceptions. See Katz, 357. The Georgia

Supreme Court noted one of these exceptions is when a

8

third party grants the right to search without a warrant if

that third party possesses common authority over the

premises or had a sufficient relationship to justify the

consent. Atkins us. State, 254 Ga 641, 31 SE2d 597, (1985).

The court cited several other United States Supreme

Court decisions and justified this rujing because it is

reasonable to assume persons with joint access have this

type control. Therefore, it is uncontraverted [sic] that if

Ms. Randolph had been present at her home, alone, she

had authority to grant consent. The issue before the court

today, however, is one which is of apparent first impres-

sion in the State of Georgia. The question which must be

resolved before the court is “whether a law enforcement

agency or officer may conduct a warrantless search of a

home or office of persons (both present) with joint access

and authority to grant permission if one of the owners

objects to the search and the other grants permission.”

There do not appear to be any cases in Georgia which

have addressed this specific set of circumstances in the

context of a search of a marital residence. Foreign jurisdic-

tions and legal treatisies, however, strongly support the

proposition a joint occupant of property, is subject to the

property being searched if that person is unavailable and

permission given by the other occupant, but if the joint

occupant is present and objecting he should not have his

constitutional rights ignored simply because a shared

property interest exists. See 68 Amjur 2d searches and

seizure § 92. It is important to note at the time police

arrived the couple was involved in a heated domestic

dispute. This dispute ultimately led to a divorce proceed-

ing which has now been finalized in the Superior Court of

Sumter County. (See Randolph vs. Randolph, Civil Action

File No. 99-CV-968)

9

Courts have evaluated situations in which an angry

spouse granted permission to police officers to search the

home in hopes of causing trouble for the offending spouse.

In some cases a spouse’s antagonism toward the other

spouse withdraws the authority of this spouse to grant

permission for a search. See State vs. Gonzalez-Valle, 385

So. 2d 681 (Fla. Dist. Ct. Ap. Third District 1980) and May

vs. State 780 SW2d 866 (Tex. App. Dallas 1989). Both of

these courts took the position that the antagonistic wife

granted permission out of anger, spite, hostility, and

antagonism and the courts did not wish to foster this type

ill-will between married parties. In effect, the court’s ruled

generally one spouse has agency to grant permission to

search property owned by the other spouse so long as each

has common access but this agency is destroyed if the

motivation is based on ill-will and antagonistic feelings.

There are several other foreign jurisdiction cases which

seem to follow this same rule but there are also several

cases which have ruled the antagonistic spouse does not

destroy the agency. It appears, the case of US vs. McAl-

pine, 919 F2d 1461 greatly criticized both May and Gonza-

les in dicta stating that the case of the US vs. Matlock, 415

US 154, 94 S. Ct. 988, (1974) effectively rejects this agency

analysis in favor of an analysis which focuses solely on the

consenting parties relationship to the property rather than

their relationship to the offended party.

In the case before the court, it is important to note

that both spouses were present during the time permission

was granted to search the home. One spouse objected to

the search, Mr. Randolph, and one spouse, the angry and

vindictive Ms. Randolph, consented to the search. Of equal

importance, part of the consent was given to search the

office of Scott Randolph which was not property for which

10

both had a common interest and common access. It is

believed Ms. Randolph will testify she had access to the

office and that she served as a secretary/paralegal to Mr.

Randolph but, these positions do not grant her authority

to consent to the search of this office. She would have no

more right to consent to a search of these areas than

would a lawyer’s paralegal or secretary have a right to

consent to a police officer searching their boss’ office.

Clearly, this type search would not be allowed and the

search of Mr. Randolph’s office and home should not have

occurred either. Once Mr. Randolph invoked his constitu-

tional right to reject the search without a warrant, regard-

less of his spouse’s permission, the police were under a

duty to attempt to receive a search warrant. It is not

surprising that courts have ruled when one party is not

present, and the other party is present, the present party

can consent to a search of commonly held property because

of the shared property interest. It is an entirely different

situation, however, when both parties are present and one

does not grant permission.

Of equal importance, courts throughout the United

States have consistently ruled that a spouse does not have

permission, even concerning co-tenancy or occupancy, to

consent to the search of personal effects of the common

occupant. See, State vs. Evans, 45 Haw. 622, 372 P.2d 365

(1962) (search of cufflink case in husband bedroom bureau

drawer illegal), Matthews vs. State, 89 Md. App. 488, 598

A.2d 813 (1991) (Court allows evidence gathered but states

a personal drawer of the Defendant could not be searched

even with permission by wife), Henry vs. State, 253 Miss.

263, 154 So.2d 859 “(1963) appeal to Supreme Court,

judgment vacated on other grounds (Wife consented to

11

search of husband’s personal automobile, court rules not

valid).

In the State vs. McCarthy, 26 Ohio State. 2d87, 55

Ohio Op.2d 161, 269 N.E.2d 424 1971 the Ohio Court

stated a spouse’s consent is limited to the areas of the

home under common control of the parties, as distin-

guished from a search which was directed toward personal

effects of the absent spouse. Scott Randolph’s office is not

an area that should be considered in joint control of the

parties and certainly meets the definition of personal

effects. A lawyer’s files, and other matters within his

office, are highly protected and it is unimaginable that this

area would not be considered personal and beyond the

scope of consent of the wife. It should be noted that each

court made its analysis of whether or not permission could

be granted in the context of a search directed toward

personal effects of an absent spouse. In our case, Scott

Randolph was present and objecting which further

strengthens the argument that no search should have

occurred.

California and Florida courts have consistently ruled

that if both parties are present, and one objects, a search

can not [sic] occur without the police obtaining a warrant.

See Duke vs. Superior Court, 1 Cal. 3d314, 461 P.2d 628

(1969) and People vs. Reynolds, 55 Cal. App. 3d357, 127

Cal. Rp. Tr. 561 (1976) and Lawton vs. State, 320 So.2d

463 (Fla. Dist. Ct. App. 2d Dis. 1975) In the Florida case,

the court ruled that a search predicated upon the consent

of a joint occupant is invalid when the other joint occupant

is physically present on the premises and affirmatively

objects to the search. Jd. In this case, a wife who was

separated from her husband came to visit the husband in

their once marital apartment discovering the husband

12

with another woman. The separated wife went next door

and called the police. Upon arrival of the police, the

husband stood in the doorway to the apartment, placed his

arms across the doorway, and forbid the police to enter.

The wife insisted the police had authority to enter, and

based on this consent, the police entered the apartment,

searched the apartment, and found marijuana. The court

stated it is one thing to find a consent to search shared

premises binding upon an absent, non-consenting Defen-

dant, but quite another to hold the consent binding upon a

Defendant who has been requested by the police to consent

to a search of his property and who has refused that

permission. This case is square on the head of the facts of

the Randolph case. Scott Randolph clearly and unequivo-

cally denied the police the right to search. This case is not

similar to those normally cited whereby one spouse is not

present and the other grants permission. In People vs.

Reynolds, the court stated the right to privacy of the non-

consenting co-occupant should always prevail to preclude a

valid search. The ruling in Duke vs. Superior Court, closely

tracts the two previously cited cases.

A final foreign jurisdiction case, State vs. Walker, 965

P.2d 1079 (Wash. 1998) states in clear and concise lan-

guage that a wife may consent to the search of a marital

residence when she has equal control over the premises

only during his absence. /d. In this case, the wife had

consented to a search of the marital home away from the

premises and when the police arrived the husband arrived

at the home as well. The husband never refused the right

to search the home but he also did not affirmatively

consent to the search. The high court of Washington stated

the wife’s consent could be valid as to any evidence ob-

tained which might be used against her but that any

13

evidence obtained concerning the husband was inadmissi-

ble and could be only used against the wife. Jd.

The courts have also held that a spouse has no author-

ity to consent to the warrantless search of a premises if

the police have been informed beforehand that the absent

spouse will not or does not consent to this type search. See,

Daniels vs. State, 534 So. 2d 628 (Al. Crim. App. 1985)

In short, most courts have ruled that if both parties

are present and one objects to the search this objection

requires the law enforcement agency to receive a court

order or a warrant. Some courts, such as the Walker court,

have gone so far as to state an affirmative consent must be

obtained from the spouse if this spouse is present when

officers arrive to search. This court should not allow the

constitutional rights of Scott Randolph to be cast aside in

the wind simply by a disgruntle [sic] spouse granting

permission to search property which is lawfully owned by

Mr. Randolph and in a relatively exclusive control situa-

tion because the office space was Mr. Randolph’s and not

Ms. Randolph’s. |

One California court even went so far as to rule that if

a wife has been instructed by a husband not to allow a

search of the premises that the wife can not [sic] then

grant permission to search the premises to law enforce-

ment agencies. People vs. Fry, 271 Cal. App. 2d 350, 76

Cal. Rptr. 718 (4th Dist. 1969). In this case, the husband

had already been arrested but specifically refused to allow

a search of his home by telling his wife during visitation

she was not to allow any search. The police officers were

aware of these instructions but searched the home without

a warrant upon permission by the wife. The court stated

the police were aware of these instructions and they could

14

not rely upon her consent as justification for their conduct.

Surely if orally instructing a spouse to refuse consent

prohibits a warrantless search, then the spouse being

present and stating adamantly refusal directly to the

police officers should require court intervention.

As has been stated earlier in this Brief, the State of

Georgia has not directly addressed a situation where one

spouse refuses permission and another grants permission

with both being present. The State of Georgia has adopted

the general rule that a third party who possesses common

authority over or other sufficient relationship to the

premises or effects sought to be inspected can grant

permission for a search. Atkins vs. State, 254 Ga. 641, at

642 331 SE2d 597 (1985). This ruling, however, does not

establish the right to grant permission when the other

party is present denying -permission. In fact, Georgia

courts have stated that one of the most important reasons

for requiring a search warrant as a condition to a search is

a recognition that reasonable restraints must be placed

upon a law enforcement official before a search is con-

ducted rather than simply to measure the validity of a

search by post-search inquiry into its reasonableness.

Luke vs. State, 178 Ga. App. 614, 344 SE2d 452 (1986)

(dissenting opinion) A requirement that a police officer

obtain a warrant to search the home and business of a

non-consenting adult is certainly a reasonable restraint

and there is no justification for law enforcement to claim

there is no need for a search warrant simply because a co-

tenant or spouse attempts to override the objection. The

constitutional right of each individual is one of the most

highly protected rights granted by the United States

Constitution. In fact, most authorities would agree the Bill

of Rights are our very foundation for freedom in this

15

country. These Rights must be protected to the fullest

extent available under the law and can not [sic] casually,

nor carelessly, be waived by other individuals. Scott

Randolph uncategorically denied access to search his home

and office. Once law enforcement heard this denial, they

should have respected his constitutional rights and at-

tempted to receive a warrant. The warrant was not ob-

tained and therefore, all evidence discovered as a result of

this search should be declared illegally obtained evidence

and suppressed in this matter.

For the foregoing reasons, Defendant requests all

evidence seized at the search on or about July 6, 2001 be

declared illegal and suppressed.

Respectfully submitted this 23rd day of January 2002.

/s/ W.T. Gamble III

W.T. Gamble, III

This Document Prepared By:

/s/

W.T. Gamble, III

State Bar No.: 0283170

COLLIER & GAMBLE, LLP

Attorneys at Law

P.O. Box 577

Dawson, Georgia 31742

(229)995-5657

kje

[Certificate Of Service Omitted In Printing]

16

IN THE SUPERIOR COURT OF SUMTER COUNTY

STATE OF GEORGIA

STATE OF GEORGIA

INDICTMENT NO.01-R-699

SCOTT FITZ RANDOLPH

DEFENDANT

STATE’S BRIEF OPPOSING

DEFENDANT’S MOTION TO SUPPRESS

(Filed October 3, 2002)

Comes now the State of Georgia by and through the

District Attorney of the Southwestern Judicial Circuit

and files this response in opposition to the defendant’s

motion to suppress.

FACTS

On July 6, 2001 Janet Randolph called the Americus

Police Department and requested that an officer come to

224 Brown Street in Americus in reference to a domestic

dispute with her husband, Scott Fitz Randolph. 224

Brown Street was the jointly-occupied marital residence

of the Randolphs.

When officers arrived, Mrs. Randolph told them that

her husband had been using drugs and that drugs were

presently in the residence. Scott Randolph was present

_ and refused to consent to a search of the residence.

However, Janet Randolph gave consent and led Sgt.

B.D. Murray to a room inside the residence. Sgt. Murray

observed cocaine on a dresser in plain view in the room.

He went outside to retrieve evidence packaging bags

17

from his vehicle, at which time Mrs. Randolph (at the

insistence her husband) withdrew consent to search.

Sgt. Murray left an officer at the residence to

prevent destruction of evidence, and obtained a search

warrant from the magistrate. He and other officers

served the warrant and discovered additional cocaine in

various rooms within the residence. No cocaine or other

evidence was discovered in the portion of the residence

purportedly used by Scott Randolph as a law office. A

copy of the affidavit for search warrant, the search

warrant, and the search warrant return are attached

hereto as Exhibit A.

A Sumter County Grand Jury returned an indict-

ment charging Scott Fitz Randolph with the offense of

possession of cocaine and he subsequently filed a motion

to suppress the evidence seized during the search of the

residence.

ARGUMENT AND CITATION OF AUTHORITY

1. JANET RANDOLPH’S CONSENT TO SEARCH

WAS VALID EVEN THOUGH SCOTT RANDOLPH

REFUSED TO CONSENT TO A SEARCH OF THE

MARITAL RESIDENCE. .

“... [W)hen the prosecution seeks to justify a war-

rantless search by proof of voluntary consent, it is not

limited to proof that consent was given by the defendant,

but may show that permission to search was obtained

from a third party who possessed common authority over

or other sufficient relationship to the premises or effects

18

sought to be inspected.” U.S. v. Matlock, 415 U.S. 164, 171

(94 S.Ct. 988, 993) (1974.)'

There is no doubt that Janet Randolph was a co-

occupant of the premises and possessed sufficient common

authority over the marital home to consent to a search of

the premises. The defendant here argues that the Court

should adopt a rule that prohibits a spouse from giving

consent to search if the other spouse is present and af-

firmatively objects to the search.’ However, this argument

was rejected by the Georgia Court of Appeals in Kendrick

v. State, 211 Ga. App. 599 (440 SE2d 53) (1993). In Ken-

drick two detectives located a vehicle that had been used

as the “getaway” car in an armed robbery. They knocked

on the door of the registered owner (the defendant’s wife)

and asked about the car. The defendant’s wife invited the

detectives into the house where they saw the defendant

and recognized him from the video tape of the robbery as

the perpetrator. The detectives arrested Kendrick at that

time. Kendrick later claimed that he had asked the detec-

tives to leave, thereby revoking any consent to enter the

residence that had previously been obtained from the wife.

The Court held that “only defendant’s wife could

' The reasoning of Matlock was reaffirmed and extended in /llinois

v. Rodriguez, 497 U.S. 177 (110 S.Ct. 2793) (1990). The Court there

held that an officer’s good faith belief that the third party had authority

to consent to a search validated the search even when it was later

discovered that the third party did not have such authority. This

holding has been followed in Georgia. Turner v. State, 246 Ga. App. 49,

51-52 (539 SE2d 553) (2000); Ford v. State, 214 Ga. App. 284(3) (447

SE2d 334) (1994).

* Defendant makes the bold assertion in his brief that “most courts

have ruled that if both parties are present and one objects to the search

this objection requires the law enforcement agency to receive a court

order or a warrant.” (Defendant's brief page 7, 2nd paragraph)

19

revoke her consent and there is no evidence defen-

dant’s wife indicated agreement with the defen-

dant’s request or otherwise acted in a manner to

revoke her consent.” Id., page 601 (emphasis added).

See also Animashaun v. State, 207 Ga. App. 156, 158 (427

SE2d 532) (1993) (estranged wife who had key to premises

still possessed common authority to give consent to enter

marital premises even where husband was on premises

and refused to give consent.)

Defendant also argues that the Court should adopt an

“angry spouse” rule. Such a rule is based on the old agency

theory of third party consent which holds that the agency

of one spouse to grant permission to search is destroyed by

the ill will of one spouse towards the other. Apparently

this argument has not been addressed by the Georgia

appellate courts. However, this anachronistic argument

has been explicitly rejected by courts in other jurisdic-

tions.”

In U.S. v. McAlpine, 919 F2d 1461 (10th Circuit 1990)

the Court cited Matlock, infra, and held that it is the

consenting party’s relationship to the property, not the

tenor of her relationship with the defendant, that is

determinative of whether she can consent to a search. The

Court further held that there was no expectation of pri-

vacy where there is shared property and the other co-

occupant grants consent to search. As noted in the defen-

dant’s brief, this decision criticized two cases cited by the

defendant as support for his position.

* State v. McCarthy, 269 NE2d 424 (Ohio, 1971); State v. Bartram,

925 SW2d 227 (Tennessee, 1996); Commonwealth v. Noonan, 720 NE2d

828 (Massachusetts, 1999).

20

In U.S. v. Sumlin, 567 F2d 684 (6th Circuit, 1977) the

Court cited Matlock, infra, and held that the fact that the

defendant refused consent to search does not preclude

another person who had common authority over the

premises from giving valid consent. The Court also held

that there is no reasonable expectation of privacy to be

protected because a joint occupant assumes the risk of his

co-occupant exposing their common private areas to a

search.

The courts in the following cases rejected the argument

that a spouse or co-occupant cannot give a valid consent to

search where the other spouse or occupant refuses to con-

sent: State v. Crevina, 266 A2d 319 (New Jersey, 1970);

Commonwealth v. Martin, 264 NE2d 366 (Massachusetts,

1970); State v. Rohrbach, 763 P2d 196 (Oregon, 1988); City of

Laramie v. Hysong, 808 P2d 199 (Wyoming, 1991); People v.

Sanders, 904 P2d 1311 (Colorado, 1995); People v. Cosme,

397 NE2d 1319 (New York, 1979).

Georgia and many other states have rejected the defen-

dant’s argument. Janet Randolph’s consent to search was

valid even if the defendant objected. The cocaine observed

when Sgt. Murray initially entered the residence should not

be suppressed. His observation of the cocaine while lawfully

in the residence provided probable cause for issuance of a

warrant to search the premises for additional cocaine.

2. THE COCAINE SHOULD NOT BE _ SUP-

PRESSED BECAUSE THERE WAS A SOURCE INDE-

PENDENT OF THE ENTRY INTO THE RESIDENCE

THAT SUPPORTED THE ISSUANCE OF THE SEARCH

WARRANT.

Even if the Court assumes, for the purpose of argu-

ment, that Sgt. Murray’s initial entry into the residence

21

was not authorized, this Court’s analysis of the admissibil-

ity of the evidence does not end. The “independent source”

doctrine permits introduction of evidence initially discov-

ered during, or as a consequence of, an unlawful search,

but later obtained independently from unlawful activities

untainted by the initial illegality. Murray v. United States,

487 U.S. 533 (108 S.Ct. 2529) (1988); Segura v. United

States, 468 U.S. 796 (104 S.Ct. 3380) (1984).

“The admissibility of [evidence] under the independ-

ent source exception depends on whether authorities

established probable cause to seize the [evidence], either

before or after the illegal search, independent of any facts

revealed by the unlawful search.” Waldrip v. State, 267

Ga. 739(18) (482 SE2d 299) (1997).

The independent evidence is Janet Randolph’s state-

ments against her penal interest that cocaine was being

kept in the residence she jointly occupied with her hus-

band. That statement alone provides sufficient reliability

to establish probable cause for a search of the residence.

Sosebee v. State, 227 Ga. App. 21 (488 SE2d 102) (1997).

If the information concerning Sgt. Murray’s observa-

tion of cocaine inside the residence is excised from the

affidavit for search warrant, the remaining information is

sufficient to establish probable cause for the issuance of

the search warrant. Dorminey v. State, 205 Ga. App. 806

(423 SE2d 698) (1992).

Even without the evidence obtained by Sgt. Murray’s

initial entry the cocaine would have been inevitably

discovered. Suppression is not appropriate under these

circumstances.

22

CONCLUSION

The defendant’s motion to suppress should be denied

for each of the foregoing reasons.

Respectfully submitted,

/s/ Richard E. Thomas

Richard E. Thomas

Special Assistant District

Attorney

Southwestern Judicial

Circuit

State Bar No. 705850 —

1216 Dawson Road, Suite 202

Albany, GA 31707

229-430-3818

[Certificate of Service Omitted In Printing]

[Exhibit A Omitted In Printing]

23

IN THE SUPERIOR COURT OF SUMTER COUNTY

STATE OF GEORGIA

THE STATE OF GEORGIA, )

)

) Case No. 01-R-699-P

SCOTT FITZ RANDOLPH, )

Defendant. )

Vv.

ORDER OF THE COURT

(Filed October 17, 2002)

Defendant, having filed a Motion to Suppress with

this Court, and a hearing on that Motion having been

held on October 3, 2002 at the Sumter County Court-

house in Americus, Georgia, and upon due consideration

of all the information presented in this case, the Court

finds the following:

That Defendant’s wife was still in possession of

common authority to grant consent for police to search

the marital home;

That under Kendrick v. State, 211 Ga. App. 599

(1993), one spouse can consent to a search of the marital

premises, and the other spouse cannot withdraw that

consent, regardless of the other spouse’s presence or

absence at the time the consent was given and knowl-

edge of that consent being given; and

That even though Defendant’s wife used knowledge

gained from communication between husband and wife,

and knew the harm that could result from her consent to

search, she was fully competent to grant such consent to

search.

24

In accordance with the foregoing findings, it is

hereby

ORDERED that Defendant’s Motion to Suppress is

DENIED.

DONE THIS the 17th day of October, 2002.

/s/ George M. Peagler, Jr.

Judge, Sumter County

Superior Court

Southwestern Judicial

Circuit