# Joint Appendix — Georgia v. Randolph

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0069%3A04

## Record

- **Collection:** Supreme Court brief
- **Document type:** Joint Appendix
- **Published:** January 1, 2006
- **Citation:** 547 U.S. 103

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0069%3A04. Public record. Not legal advice.