Amicus Curiae Brief — Georgia v. Randolph

No. O1-1067

eS

IN Tu

.

Supreme Court of the Cluited States

STATE OF GEORGLA,

Petition i.

’ Pare

Scor Firz RANDOLPH,

De prondes

On Writ of Certiorari to the

Supreme Court of Georgia

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCTATION OF CRIMINAL

DEFENSE LAWYERS

SLPPORTING RESPONDENT

PAMELATIARRES JEREREY AL LAMBEN

CoC HA, AMICUS COMMIPTEI Counsel of Record

NATIONAL ASSOCLATION OF HE ATHERS. ALLEN

CRIMINAL DEFENSE LAWYER KEVIN TAACOBS

PISO Sth St. NW) Ste. $50 BAKER Borrs LLP.

Washington DC 20056 1200 Ponnsvivania Ave., NW

(202) 872-600 Washington, DC. 2000.2 100

MW Othe OO

(ait ( / faa)

‘ ;

Natrowal 4 in mthion olf MELIAALL “LI lh lapis / (1/0 ies

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SS

QUESTION PRESENTED

Whether the police may search a home based on the

putative consent of one occupant when another present

occupant of the home expressly objects to the search.

TABLE OF CONTENTS

Question Presented idietietstigneenenmemnenenencen i

Statement Of The Case a 2

Summary Of Argument -m *&€

Argument...... penton 9

The Fourth Amendment Does Not Permit

Government Agents To Press Their Way Into

Private Homes And Bedrooms, Past A Present

And Objecting Occupant, Without A Warrant

Or Exigency : 9

A. The Right To Exclude And Corre-

sponding Privacy Interests Are At

. Their Apogee In The Marital Home........... 11

B. The Police May Not Invade The

Home Based On The Putative

Consent Of A Co-Occupant Over The

Express Objection Of The Other,

Present, Co-Occupant u. 13

1. Shared Social Understandings

Support Matlock’s Conclusion That

One Ocevpant May Allow Entry In

The Others’ Absence 14

2. Shared Social Understandings

Preclude Extending Matlock To

Permit Entry Despite Objection By

A Present Occupant 16

3. The Rule Against Entry Over The

Objection Of A Present Occupant

Serves Important Societal Interests ..... - 18

(iii)

iv Vv

TABLE OF CONTENTS-Continued TABLE OF AUTHORITIES

Page Page

4. The Property Cases Cited By CASES .

Petitioner And Its Amici Do Not

Support A Contrary Rule 23 Beal Bank, SSB oe and Associates,

C. The Law Enforcement Interest Is WSs. Oe. Se) =

Dwarfed By The Corresponding Boyd v. United States, 116 U.S. 616 (18886) ......... - Il

_ Intrusion On Privacy, Safety, And Buchanan v. Jencks, 96 A. 307 (R.1. 1916) ............. 24

Cher Seeetes Walaa 25 California v. Ciraolo, 476 U.S. 207 (1986) vss... ¥

D. The are bene — Causee v. Anders, 20 N.C. 388 (1839) 24

Randolph's Connection To , ;

Property Was Insufficient To Elevate ; a v. New Hampshire, 408 U.S. 443 26

Her Decision Over Respondents ................ 28 (

CONCLUSION ....0.. ae 80 Denvonpeck v. Afford, 125 8. Ct. S55 GES0) s

Dinsmore v. Renfroe, 225 P. 886 (Cal. Ct.

App. 1924) 24

Dolan v. City of Tigard, 512 U.S. 374 (1994)........ 12, 22

Frazier v. Cupp, 394 U.S. 731 (1968) 15

Frisby v. Schultz, 487 U.S. 474 (1988) 11

Granger v. Postal Telegraph Co., 50 S.E.

193 (S.C. 1905) 23

Griswold v. Connecticut, 381 U.S. 479

(1965) 13

Hawkins v. United States, 358 U.S. 74

(1958) 13

Illinois v. McArthur, 531 U.S. 326 (2001)............. 26, 27

Illinois v. Rodriguez, 497 U.S. 177 (1990) ............... 29

Kaiser Aetna v. United States, 444 U.S. 164

(1979) 12

Katz v. United States, 389 U.S. 347 (1967) .......... 11

Kyllo v. United States, 5383 U.S. 27 (2001)... 2

vi

TABLE OF AUTHORITIES—Continued

Page

Lawton v. State, 320 So. 2d 46 (Fla. App.

1975)..... -— : 19

Lingle v. Chevron U.S.A. Inc., 125 S.Ct.

2074 (2005)........ - — 12

Lucero v. Donovan, 354 F.2d 16 (9th Cir.

1966) . 29

Mahoney v. Van Winkle, 21 Cal. 552 (1863)........... 18

Minnesota v. Carter, 525 U.S. 83 (1998) ......... 10, 11, 12

Minnesota v. Olson, 495 U.S. 91 (1990) i2

Moore v. Moore, 34 P. 90 (Cal. 1893) 18

Muehler v. Mena, 125 S. Ct. 1465 (2005) ................ 2

Payton v. New York, 445 U.S. 573 (1980) ...........00+. 26

Rakas v. Illinois, 489 U.S. 128 (1978). 10, 11

Richey v. Brown, 48 Mich. 435 (1885) 17

Roberts v. United States Jaycees, 468 U.S.

609 (1984)..... 20

Rowan v. U.S. Post Office Dept., 397 U.S.

728 (1970) 11

State v. Leach, 113 Wash. 2d 735 (1989) 5

Stein v. Bowman, 38 U.S. (Pet.) 209 (1839)............ 13

Stoner v. California, 376 U.S. 483 (1964).............0.. 15

Trammel v. United States, 445 U.S. 40

(1980) 13

United States v. Craft, 5385 U.S. 274 (2002).......... 21, 22

United States v. Drayton, 536 U.S. 194

(2002) 2, 10, 19

United States v. Knights, 534 U.S. 112

(2001)... 2

vil

TABLE OF AUTHORITIES—Continued

Page

United States v. Matlock, 415 U.S. 164

(1974)... - - passim

United States v. Stone, 471 F.2d 170 (7th

Cir. 1972) 15

United States v. United States Dist. Court

for E.D. Mich., 407 U.S. 297 (1972) 12

United States v. Wood, 924 F.2d 399 (1st

Cir. 1991) 13

Warden, Md. Peniten* ary v. Hayden, 387

U.S. 294 (1967) 26

MISCELLANEOUS

86 C.J.S., Tenancy in Common (1997) 24

W. Page Keeton et al., Prosser and Keeton

on the Law of Torts (5th ed. 1984) “ 19

Wayne R. LaFave, Search and Seizure (4th

ed. 2004) 27, 29, 30

Erik Luna, Sovereignty and Suspicion, 48

Duke L.J. 789 (1999) 19

Joseph M. McLaughlin et al., Weinstein's

Federal Evidence (2d ed. 2005) 13

Powell on Real Property (Michael Allen

Wolf, ed., 2005) 16, 22

Thompson on Real Property (David A.

Thomas, ed., 2004) 16, 28

Herbert Thorndike Tiffany & Basil Jones,

The Law of Real Property (3d ed. 1939).......... 17, 24

Lloyd L. Weinreb, Generalities of the

Fourth Amendment, 42 U. Chi. L. Rev.

47 (1974-75) 17, 27

IN THE

Supreme Court of the United States

No. 04-1067

STATE OF GEORGIA,

Petitioner,

Vv.

ScoTT FITZ RANDOLPH,

Respondent.

On Writ of Certiorari

to the Supreme Court of Georgia

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS

SUPPORTING RESPONDENT

INTEREST OF AMICUS CURIAE

National Association of Criminal Defense Lawyers

(NACDL) is a nonprofit national bar association working

in the interest of criminal defense attorneys and their

clients. NACDL was founded to ensure justice and due

process for persons accused of crimes and to foster the

integrity, independence, and expertise of the criminal

defense profession. NACDL has more than 12,500

members—joined by 90 affiliate organizations with

35,000 members—including criminal defense lawyers,

U.S. military defense counsel, law professors, and judges

2

committed to preserving fairness within America’s crim-

inal justice system.

This case concerns whether the Fourth Amendment

permits the police to enter the home of a potential

criminal defendant without a warrant where he is present

and objecting, simply because another occupant of the

home—his spouse—purports to consent to the search.

NACDL and its members have a strong interest in

ensuring proper application of Fourth Amendment prin--

ciples in this context and in ensuring that the law accords

appropriate respect to an individual's effort to exclude

others from the most sensitive of places, the home.

NACDL has appeared as amicus curiae in numerous

Fourth Amendment cases in ths Court. See, e.g.,

Muehler v. Mena, 125 S.Ct. 1465 (2005); Denvenpeck v.

Alford, 125 S.Ct. 588 (2004); United States v. Drayton,

536 U.S. 194 (2002); United States v. Knights, 534 U.S.

112 (2001); Kyllo v. United States, 533 U.S. 27 (2001).

STATEMENT OF THE CASE

1. Before May of 2001, respondent Scott Fitz Ran-

dolph and his wife lived in a house they rented from

respondent’s father in Americus, Georgia. 10/3/02 Tr. at

30, 33. In late May of 2001, the couple separated. Mrs.

Randolph took the couple’s son and most of her clothing

and went to stay with her parents in Canada. Respon-

dent remained in the marital home. /d. at 23; Pet. App. 7.

' This amicus brief is filed with the consent of the parties, and letters

of consent are being filed with the Clerk of the Court in accordance

with this Court’s Rule 37.3(a). Pursuant to Rule 37.6, the amicus

submitting this brief and its counsel hereby represent that neither

party to this case nor their counsel authored this brief in whole or in

part, and that no person other than amicus paid for or made a mone-

tary contribution toward the preparation and submission of this

brief.

3

_ On or about July 4, 2001, Mrs. Randolph returned to

the home with their child. Pet. App. 7. She informed

respondent that she intended to collect more of her

belongings and return to Canada. 10/3/02 Tr. at 24.

On the morning of July 6, 2001, respondent awoke to

find Mrs. Randolph highly intoxicated. 10/3/02 Tr. at 24-

26. The couple argued, and Mrs. Randolph said she was

going to collect her things and leave the house. /d. at 27.

Respondent took their son to the house of a family friend.

Id. at 27-28. While respondent was gone, Mrs. Randolph

called the local police department. When the police

arrived, Mrs. Randolph complained that respondent had

taken their child away. She also claimed that respon-

dent’s cocaine use was causing the couple financial

problems. Pet. App. 7. During that same conversation,

Mrs. Randolph revealed to the police that she and

respondent were having marital problems, that she had

separated from him, and that she had recently left the

home for over a month to stay with her family in Canada.

10/3/02 Tr. at 14-15.

When respondent arrived at his home, he found his

wife there along with the police. He told the police where

he had taken the child. He had been concerned, he

explained, that Mrs. Randolph would again take their son

out of the country. Pet. App. 7-8. After retrieving the

child, one of the officers told respondent about Mrs.

Randolph’s allegations of cocaine use. /d. at 8.

The officer asked respondent for permission to search

the house. Respondent unequivocally said “no.” 10/3/02

Tr. at 8; Pet. App. 8. The officer then turned to Mrs.

Randolph and asked for her consent. Mrs. Randolph

agreed. Over respondent’s objection, Mrs. Randolph

then, in the officer’s words, “showed [him] a bedroom

upstairs in the back corner that was reported to be Mr.

Randolph’s.” 10/3/02 Tr. at 8. Peering in the doorway,

the officer observed “a piece of cut straw on top of a jar.”

[f

1

Ibid. Upon closer examination, the officer thought he

saw white residue on the straw, which led him to believe

the straw was used to ingest cocaine. /bid.

The officer left the house to retrieve an evidence bag

and to contact the district attorney. The district attorney

told the officer to stop the search and obtain a warrant.

10/3/02 Tr. at 9; Pet. App. 8. The officer returned to the

home, at which point Mrs. Randolph said she was with-

drawing her consent to the search. The officer collected

the straw and white residue and went to the police station

with respondent and Mrs. Randolph. Pet. App. 8. The

officer then obtained a seareh warrant for the home.

During the ensuing search, the police seized numerous

drug-related items. /bid.

On November 21, 2001, an indictment was filed against

respondent for possession of cocaine. J.A. 1. On January

17, 2002, respondent filed a motion to suppress all evi-

dence seized from his home. The Superior Court denied

the motion, holding that Mrs. Randolph was “still in

possession of common authority to grant consent for

nolice to search the marital home.” J.A. 23.

2. The Georgia Court of Appeals granted respon-

dent’s application for interlocutory appeal and reversed.

Pet. App. 7-47. The court held that it is “inherently

reasonable that police honor a present occupant’s express

objection to a search of his dwelling, shared or other-

wise.” /d. at 10. “If ‘common authority’ is the basis for

allowing one co-occupant to consent to a search on behalf

of all occupants,” the court explained, “it seems

reasonable that ‘common authority’ should permit a co-

occupant to exercise privacy rights on behalf of all

occupants.” /bid. That result was “particularly reason-

able” in cases involving marital disputes, the court added.

“Allowing a wife’s consent to search to override her

husband’s previous assertion of his right to privacy

al threatens domestic tranquility.” /bid.

5

The court of appeals acknowledged that, in United

States v. Matlock, 415 U.S. 164 (1974), this Court had

held that one cotenant could consent to a search of the

dwelling he shared with others. Pet. App. 8-9. But the

court of appeals held that Matlock was “factually and

legally distinguishable” because the nonconsenting ten-

ant in that case was not present and objecting to the

search. Here, reswondent was “not only present, but he

affirmatively exercised his Fourth Amendment right to

be free from police intrusion by refusing to consent to the

search of his house.” /d. at 12.

3. The Supreme Court of Georgia affirmed. Pet.

App. 1-6. The court assumed that it was “faced with a

situation in which two persons have equal use and control

of the premises to be searched.” /d. at 1. Under those

circumstances, the court held, “the consent to * * * a war-

rantless search of a residence given by one occupant is

not valid in the face of the refusal of another occupant

who is physically present at the scene to permit a war-

rantless search.” /bid.

Like the court of appeals, the Georgia Supreme Court

distinguished Matlock. The Georgia Supreme Court

pointed out that, in Matlock, the defendant challenging

the search had not been present on the scene when the

police sought consent from a cotenant. “[TJhe risk

assumed by joint occupancy,” the Georgia Supreme

Court stated, is “merely an inability to control access to

the premises during one’s absence.” Pet. App. 3 (internal

citations omitted). Quoting the Supreme Court of

Washington, the Georgia Supreme Court concluded that,

“should the cohabitant be present and able to object, the

police must also obtain the cohabitant’s consent. Any

other rule exalts expediency over an individual’s Fourth

Amendment guaranties.” /bid. (quoting State v. Leach,

113 Wash. 2d 735, 744 (1989)).

6

‘three Justices dissented. In their view, respondent

had “assumed the risk that because of his diminished

expectation of privacy he had in the home he shared with

his wife, she would expose their common private area” to

a search. Pet. App. 6 (internal citations omitted).

SUMMARY OF ARGUMENT

The Fourth Amendment does not permit the police to

enter a home and conduct a warrantless search, without

exigent circumstances, in direct defiance of a present and

objecting occupant who expressly refuses to consent to

the search.

A. The expectation of privacy is at its apogee when a

citizen is in his home and, in particular, the marital home.

That expectation is reflected in the most fundamental of

all property rights—the right to exclude others.

B. When a present occupant asserts his right to

exclude police officers from his home, the government

cannot overcome this assertion by relying on another

occupant’s purportec consent. The shared social

understandings that supported the Court’s holding in

United States v. Matlock, 415 U.S. 164 (1964), preclude

that result. The social and legal understandings shared

by members of our society do allow one occupant to invite

a third party into his home in the absence of objecting

cotenants. The holding in Matlock reflects those under-

standings. But it is similarly understood that strangers

may not enter the home based on the putative consent of

one occupant when another is present and objects to the

entry. No person on the doorstep of the home, invited to

enter by one inhabitant but confronted with vociferous

objection from another, would think it permissible to

brush the objecting occupant aside and enter none-

theless. The same rule should apply to the police.

To the extent relevant, that rule finds expression in

principles of property law. While one tenant may, absent

7

objection, invite outsiders onto land, he may not do so

when that interferes with the rights and quiet enjoyment

of other tenants, such as where they are present and

object to the intrusion. None of the cases cited by peti-

tioner and its amici license a stranger standing at the

threshold of a home to push his way inside past a present

and objecting occupant at the invitation of another—

much less push his way past the objecting tenant into the

objector’s bedroom.

The prohibition on entry over a tenant’s objection

serves important societal interests. The contrary rule

would increase the likelihood of violent confrontations

and expose the objecting occupant to potential tort liabil-

ity. It would, moreover, encourage the police to create or

exacerbate marital discord by setting one spouse against

the other, a result that is in serious tension with the

sanctity and respect our society accords the marital

relationship.

Allowing the police to disregard the express wishes of

an individual from whom they have sought consent,

moreover, is inconsistent with basic principles of self-

determination and the rule of law. This Court has

explained that the citizen’s decision to consent to a search

is entitled to dignity and respect. By the same token, the

decision not to consent is entitled to equal dignity and re-

spect. When the police ignore a citizen’s wishes after

having purported to seek consent, they send a message of

disrespect for individual constitutional choice.

C. The law enforcement need in this context is

particularly slight. Where there is probable cause, the

police can get a warrant. This Court, moreover, has

recognized that the police may enter a home over a

citizen’s wishes without a warrant when there are exigent

circumstances, and that the police may take reasonable

measures to prevent the destruction of evidence, if they

have sufficient reason to believe such destruction is

8

imminent, while officers obtain a warrant. Consequently,

the only circumstance under which the police would

“need” to rely on the rule advanced by petitioner is when

there is no probable cause to believe a crime has been

committed, no exigency exists, and there is no reason to

fear the imminent destruction of evidence. But that is

precisely the circumstance in which the law enforcement

interest in entering the home is at its nadir. Ir such a

case, it is unjustifiable and unreasonable to sacrifice an

individual’s right to privacy (and society’s corresponding

interests in preventing violent confrontation) to law

enforcement expediency.

D. Finally, the record evidence in this case indicates

that the occupant who purported to give consent—

respondent’s wife, Mrs. Randolph—had an interest in

and relationship to the home (and the bedroom in

particular) that was inferior to respondent’s. Indeed, she

had all but abandoned the home a month earlier, sepa-

rating from respondent. In general, the consent of one

with a subordinate interest in property cannot override

the express wishes of a present occupant with a superior

interest. Moreover, the record reflects that the bedroom

at issue was known to the police as “Mr. Randolph’s

bedroom,” not the couple’s bedroom. Under this Court’s

precedents, one tenant cannot consent to the search of an

area reserved for another’s use and over which she does

not share common authority and control.

9

ARGUMENT

THE FOURTH AMENDMENT DOES NOT PERMIT

GOVERNMENT AGENTS TO PRESS THEIR WAY

INTO PRIVATE HOMES AND BEDROOMS, PAST A

Faaaas AND OBJECTING OCCUPANT, WITHOUT

A WARRANT OR EXIGENCY

This case concerns whether the police must respect a

citizen’s decision to exercise his right to exclude them

from the most private of locations—his home and, in

particular, his bedroom. When the police asked respon-

dent for consent to search his home and bedroom,

respondent unequivocally refused, denying the police

permission to enter without a warrant. The police did not

respond by seeking a warrant or asserting exigent

circumstances. Nor, however, did they respect respon-

dent’s decision to exercise his right to refuse admission to

the police. Instead, they sought to circumvent

respondent’s choice by asking for and obtaining consent

from respondent’s wife (from whom respondent was

separated). They did so even though respondent was

present and expressly objecting to entry. They did so

even though respondent’s wife’s connection to the home

had become attenuated. She and respondent had sepa-

rated; she had abandoned the marital home and relocated

to Canada a month before; and she had returned for only

a few days to collect more of her belongings. Yet, based

on her putative consent, the police entered respondent’s

home and bedroom over his protest.

The police effort to bypass a present citizen’s express

and lawful effort to assert the privacy and sanctity of his

home is inconsistent with the Fourth Amendment’s

irreducible requirement that searches be “reasonable.”

No ordinary citizen at the threshold of another’s home or

bedroom would ever claim the right—or believe that he is

privileged—to push his way inside, past a present and

10

objecting occupant, based on the putative consent of

another. To the contrary, the “understandings that are

recognized and permitted by society,” as well as those

reflected in “concepts of real or personal property law,”

Minnesota v. Carter, 525 U.S. 83, 88 (1998) (quoting

Rakas v. Illinois, 439 U.S. 128, 143-44 (1978)), strictly

prohibit entry under such circumstances. That pro-

hibition and the important societal interests it protects

apply with no less force when the person seeking entry is

no ordinary stranger but the government. _

The police refusal to accept respondent’s decision to

deny consent, moreover, is inconsistent with the prin-

ciples of individual responsibility and self-determination

that undergird the concept of consent generally. As this

Court has observed:

In a society based on law, the concept of agreement

and consent should be given a weight and dignity of

its own. Police officers act in full accord with the

law when they ask citizens for consent. It rein-

forces the rule of law for the citizen to advise the

police of his or her wishes and for the police to act

in reliance on that understanding.

United States v. Drayton, 536 U.S. 194, 207 (2002).

In a society based on law, the decision not to consent,

and words like “no” and “do not,” are likewise entitled to

a weight and dignity of their own. Police officers “act in

full accordance with the law” when they ask for consent.

But they undermine the rule of law, they denigrate the

principle of self-determination, and they send the mess-

age that individual constitutional choice is a charade

when, having been advised of the citizen’s wishes, they

proceed to ignore them without resort to the legal

procedures (e.g., a warrant) that ordinarily serve as a

bulwark of individual liberty. That result and the con-

11

comitant message of disrespect for individual consti-

tutional choice should not be endorsed.

A. The Right To Exclude And Corresponding Pri-

vacy Interests Are At Their Apogee In The

Marital Home

Whether a warrantless search offends the Fourth

Amendment depends first on “whether a person has a

‘constitutionally protected reasonable expectation of pri-

vacy’” in the location at issue. California v. Ciraolo, 476

U.S. 207, 211 (1986) (quoting Katz v. United States, 389

U.S. 347, 360 (1967) (Harlan, J., concurring)). Even

where a defendant has a “subjective” expectation of “pri-

vacy in the place searched,” that expectation must be

“reasonable,” i.e., “one that has a ‘source outside of the

Fourth Amendment, either by reference to concepts of

real or personal property law or to understandings that

are recognized and permitted by society.” Carter, 525

U.S. at 88 (quoting Rakas, 439 U.S. at 143-44).

Nowhere are expectations of privacy more likely to be

reasonable—and more closely guarded by custom and

law—than in the home, particularly where a citizen

expressly objects to the intrusion on “the sanctity of [his]

home and the privacies of life.” Boyd v. United States,

116 U.S. 616, 630 (1886). “[A] special benefit of the

privacy all citizens enjoy within their own walls * * * is an

ability to avoid intrusions.” Frisby v. Schultz, 487 US.

474, 484-85 (1988). “The ancient concept that ‘a man’s

home is his castle’ into which ‘not even the king may

enter’ has lost none of its vitality.” Rowan v. United

States Post Office Dep't, 397 U.S. 728, 737 (1970).

The special solicitude the law affords the privacy and

security of the home reflects both principles of private

property and the home’s important function in our

society. One of the keystones of private property is the

right to exclude others. “(T]he owner’s right to exclude

12

others from entering and using her property [is] perhaps

the most fundamental of all property interests,” Lingle v.

Chevron U.S.A. Inc., 125 S. Ct. 2074, 2082 (2005)—‘“‘one

of the most essential sticks in the bundle of rights that

are commonly characterized as property.’” Dolan v. City

of Tigard, 512 U.S. 374, 384 (1994) (quoting Kaiser Aetna

v. United States, 444 U.S. 164, 176 (1979)). Indeed, “phy-

sical entry of the home” is the “chief evil against which

the wording of the Fourth Amendment is directed.”

United States v. United States Dist. Court for E.D.

Mich., 407 U.S. 297, 313 (1972). The right to exclude,

moreover, is the primary characteristic that sets private

property apart from the commons. The right to invite

entry is shared by both the property owner standing on

his private land and the common citizen standing on

public land. But the right to exclude others is unique to

the owner of private property.

The home, moreover, has long served as a unique

refuge from the insecurity and public scrutiny of the

commons. “The axiom that a man’s home is his castle

*** has acquired over time a power and an independent

significance justifying a more general assurance of per-

sonal security in one’s home, an assurance which has

become part of our constitutional tradition.” Carter, 525

U.S. at 100 (Kennedy, J., concurring) (citation omitted).

It is not only a place to sleep and be “at our most

vulnerable”; it is also a place to entertain visitors and

host overnight guests, who “seek|| shelter in another's

home precisely because it provides [them] with privacy.”

Minnesota v. Olson, 495 U.S. 91, 99 (1990).

The special status of the home is of particular impor-

tance when the government seeks to intrude on the

privacy of a marital household. Just as the walls of the

home shield individual private matters from outside

intrusion, so too they provide a bulwark against intrusion

on the intimacies and confidences of marital life. The

13

importance of barring intrusion on those interests is

repeatedly reflected in law. For example, even setting

aside the Framing-era rule that one spouse may never

testify against the other as to any matter, it is now well-

settled that one spouse may not testify as to confidential

marital communications if the other spouse objects. See

3 Joseph M. McLaughlin, et al., Weinstein’s Federal

Evidence § 505.09, at 505-15 (2d ed. 2005); e.g., United

States v. Wood, 924 F.2d 399, 401-02 (1st Cir. 1991). The

intimacy of the marital household and bedroom must be

accorded similar solicitude when threatened with physi-

cal and not mere testimonial invasion. Cf. Griswold v.

Connecticut, 381 U.S. 479, 485-86 (1965) (“Would we

allow the police to search the sacred precincts of marital

bedrooms for telltale signs of the use of contraceptives?

The very idea is repulsive to the notions of privacy

surrounding the marriage relationship.”).

B. The Police May Not Invade The Home Based On

The Putative Consent Of A Co-Occupant Over

The Express Objection Of The Other, Present,

Co-Occupant

Neither petitioner nor its amici dispute that respon-

dent enjoyed a reasonable expectation of privacy—a

* For at least 150 years after the Constitution's framing, this Court

followed the “general rule that neither a husband nor wife can be

witness for or against the other,” i.e., spouses were held incompetent

to testify against one another even if no marital communications

would be disclosed. Stein v. Bowman, 38 U.S. (1 Pet.) 209, 210

(1839). In Hawkins v. United States, 358 U.S. 74, 77-78 (1958), the

Court rejected the notion of competency as anachronistic and instead

relied on a privilege doctrine, holding that either spouse may object

and thereby foreclose the testimony of the other. Most recently, in

Trammel v. United States, 445 U.S. 40, 583 (1980), the Court con-

cluded that mutual consent is no longer required and that, except for

marital communications, a spouse may voluntarily testify against the

other spouse, but cannot be compelled to do so.

14

legitimate and socially recognized expectation—in his

own home. Nor does anyone claim that respondent him-

self “waived” or otherwise “consented” to an intrusion on

his Fourth Amendment rights or interests. The only

question is whether the consent of a third person—

respondent's wife—is sufficient to overcome his rights

despite his presence and continued objection to physical

entry into his home and bedroom. Custom, the law, and

the societal interests they reflect all demonstrate that the

answer is “no.”

1. Shared Social Understandings Support Mat-

lock’s Conclusion That One -Occupant May

Allow Entry In The Other's Absence

This Court has already concluded that one cotenant

may, in the other’s absence, consent to a search of the

premises. As this Court explained in United States v.

Matlock, 415 U.S. 164, 170 (1974), ‘the consent of one

who possesses common authority over premises or

effects is valid as against the absent nonconsenting

person with whom that authority is shared.” That rule

reflects social custom, common experience, and (to the

extent relevant) principles of property law.

a. Asamatter of custom and experience, members of

our society generally understand that an invitation from

one cotenant to enter the premises is valid and effective

notwithstanding the absence or silence of other co-

tenants. No one invited to enter a home by one of its

occupants would think twice about entering without

separate or express consent from the other occupants.

The social guest invited by one spouse to come inside for

a cup of tea; the business visitor invited to pitch his

wares; the teenager invited inside by his highschool

classmate. Each of these individuals would understand

that—absent some contrary indication—an_ invitation

15

from one of the home’s inhabitants is no less valid than an

invitation from all.

b. That understanding finds expression in principles

of real property law as well. As a general matter,

cotenants may bring guests onto the premises (at least

absent objection from, or interference with the quiet

enjoyment of, other tenants). The law properly assumes

that, if one tenant issues an invitation, his cotenants have

no objection. See pp. 23-24, infra; cf. United States v.

Stone, 471 F.2d 170, 177 (7th Cir. 1972) (Swygert, J.,

dissenting) (“Basic to the third party consent rationale is

the premise that the absent party might, were he

present, consent to the search, in which event no consti-

tutional rights would be violated.”). In that sense, the

ordinary cotenancy relationship includes permission to

bring others into the abode. Contrast Stoner v.

California, 376 U.S. 483, 489 (1964) (while hotel guest

impliedly consents to entry by “maids, janitors, and

repairmen” in “the performance of their duties,” that

consent does not extend to the night clerk or the police).

As a result, one who shares his home with others,

gives them “joint access or control for most purposes,”

and leaves them in sole possession unattended,

“assume(s] the risk that one of their number might

permit the common area to be searched” in his absence.

Matlock, 415 U.S. at 172 n.7. In the context of chattels,

for example, this Court has concluded that a defendant

who not only allowed his cousin to use his duffel bag, but

also left the bag at his cousin’s house, “must be taken to

have assumed the risk that [his cousin] would allow

someone else to look inside.” Frazier v. Cupp, 394 U.S.

731, 740 (1969). That conclusion is fully consistent with

the understandings that members of society share when

multiple individuals inhabit a single home.

16

2. Shared Social Understandings Preclude Evx-

_ tending Matlock To Permit Entry Despite

Objection By A Present Occupant

The social understandings and legal rules that support

the result in Matlock, however, point in precisely the

opposite direction in this case. As a matter of social

custom and shared understanding, no person on the

doorstep of the home, invited to enter by one inhabitant

but confronted with objection from another, would think

it permissible to brush the objecting occupant aside and

enter nonetheless. Whether the potentia! visitor appears

for social or business purposes, the social custom is

clear—the objection of one cotenant renders the invita-

tion of the other ineffective. That is particularly true

when the invitee stands not on the threshold of the home

but on the threshold of a private bedroom.

Consistent with that understanding, concurrent own-

ership or possession also creates a concurrent right to

exclude.’ One cotenant has no right to exclude the other

cotenants—each has an equal right to full use and

enjoyment of the premises. But no cotenant may use the

property to inverfere with the quiet enjoyment of the

others either. 7 Powell on Real Property § 50.03{1]

(Michael Allen Wolf, ed., 2005) (“Each cotenant * * * has

the right to use and enjoy the entire property as if he or

she were the sole owner, limited only by the same right in

7 Powell on Real Property § 50.06[1) (‘In actions against outsiders

to try title, or for ejectment, or for possession, the individual tenant

in common may generally sue alone, with the outcome applicable to

all cotenants”); id. § 52.03[4] (“Each tenant by the entirety js entitled

to * * * protect it against outsiders * * * .”); 4 Thompson on Real

Property §& 31.07(d) (David A. Thomas, ed., 2004) (“Because each

joint tenant is entitled to possession of the whole, each is enabled to

defend the estate against strangers. Title may be vindicated and

trespassers removed from any part by an action of ejectment

brought by any joint tenant.”).

17

the other cotenants.”). That limit on each tenant’s use

forecloses tenants from bringing unwanted visitors onto

the property when objecting cotenants are present. As

one treatise observes:

A license * * * to a stranger, if availed of by the

licensee, does involve an interference with the

possession of the others, and the licensee can, it

would seem, justify his entry only on the theory

that the licensor had authority to act on behalf of

the others in granting such a license. In so far as

the license involves a permission merely to enter on

the land * * * an authority in one cotenant to grant

such a license in behalf of all might well be inferred,

but if one cotenant has implied authority to grant

the license, any other cotenant should have implied

authority to revoke it, the effect of which would be

that the license is valid only until one of the

cotenants expresses his dissent.

2 Herbert Thorndike Tiffany & Basil Jones, The Law of

Real Property § 457, at 274-75 (3d ed. 1939) (emphasis

added); see also Lloyd L. Weinreb, Generalities of the

Fourth Amendment, 42 U. Chi. L. Rev. 47, 63 (1974-75)

(“[Ojrdinarily, persons with equal ‘rights’ in a place

would accommodate each other by not admitting persons

over another’s objection while he was present.”).

Early cases reflect the same principle—even when

dealing with contexts other than the home. In Richey v.

Brown, 58 Mich. 435, 435 (1885), for example, a mother,

son, and daughter owned and resided on a farm as

tenants in common. The defendant, a resident of a neigh-

boring farm, sought consent from the son to enter onto

the land and cut timber, without seeking permission from

the mother or daughter. /d. at 436. As soon as the

mother and daughter learned of the defendant’s doings

on the premises, the mother notified the defendant to

“keep off the land.” /bid. Responding to a trespass

18

action, the defendant argued that he had received a

license from the son. The court held that, without valid

authority from the mother and sister, the son could not

“give a valid assent to the entry of the defendant upon

the premises for any such unlawful purpose.” /bid: See

also Moore v. Moore, 34 P. 90, 92 (Cal. 1893) (affirming

that one tenant-in-common’s “bare license” to “enter, oc-

cupy and cultivate” the land is not a defense to a suit for

ejectment, as “‘no action of a portion of several tenants in

common can impair the right of their cotenants’” (quot-

ing Mahoney v. Van Winkle, 21 Cal. 552, 553 (1863))).

Those cases, which deal with land, should make cases

like this one, which concern entry into the home over the

objection of a present cotenant, an a fortiori conclusion.

Just as one tenant cannot license strangers to enter and

use land to the detriment of the right of quiet enjoyment

of his cotenants, one tenant cannot license guests to enter

and destroy his cotenants’ quiet enjoyment of the home

over their objection. As explained below, that is par-

ticularly true in the context of marital tenancies. See pp.

21-22, infra.

3. The Rule Against Entry Over The Objection Of

A Present Occupant Serves Important Societal

Interests

The rule that a stranger cannot enter a home over the

objection of a present occupant serves numerous and

important social values.

First is keeping the peace. Where there is a dis-

agreement among cotenants about whether to permit a

licensee to enter, the risk of violence is greatly dimin-

ished if the status quo is maintained with the putative

licensee outside the home. As a Florida court observed,

“such a rule is more likely to promote peace and tran-

quility. When one of two joint occupants consents to a

search while the other is actively objecting, the

—_—_ *

19

possibility of an untoward confrontation cannot be

overlooked.” Lawton v. State, 320 So. 2d 463, 465 (Fla.

Dist. Ct. App. 1975). Faced with the potential for violent

confrontation, social custom and the law adhere to the

same principle: Where a co-equal inhabitant objects to

entry, entry is generally proscribed.

Second, the entry of strangers into the home creates

the potential for liability resulting from accidents or

dangerous conditions in the home. The risk of liability is

greater when the entrant is a licensee or invitee rather

than a trespasser. See W. Keeton et al., Prosser and

Keeton on the Law of Torts § 58, at 393 (5th ed. 1984).

Each cotenant who is present may be exposed to liability

because of accidents on the property. As a result, each

must be permitted to limit his liability by barring the

entry of strangers.

Third, the principle of self-determination and adher-

ence to the rule of law require the police to respect

individual choice. Just like anyone else in our society, the

police may seek voluntary consent to enter private

property. Under our system of government, the decision

whether to exclude—like many important and personal

decisions—is generally placed in the hands of the

individual rather than the government. When officers

seek consent to enter, that reinforces the sovereignty of

the individual over his personal property and private

affairs. See Erik Luna, Sovereignty and Suspicion, 48

Duke L.J. 789, 841 (1999). It sends an appropriate

message that, out of respect for individual sovereignty

and choice, the police no less than anyone else may seek

consent and arrive at an understanding that gives them

license to enter private premises. See Drayton, 536 U.S.

at 207.

Conversely, the police must respect the wishes of the

individual even if, contrary to their desires, the individual

withholds consent. (That excepts, of course, the consti-

20

tutionally provided alternative of seeking a warrant on

probable cause.) For the police openly to circumvent an

individual's express decision to refuse consent, without

resort to the legal process of seeking a warrant, under-

mines the sovereignty of the individual over his property

and the principle of individual choice. Moreover, it sends

precisely the wrong message-—that individual constitu-

tional choice will be respected only when it suits the

government’s purposes.

Fourth, and finally, there are important social in-

terests that arise where one deals with the marital

household. (We set aside for the moment the various

indications in the record that respondent’s wife, by virtue

of separating from respondent and relocating a thousand

miles away in Canada, had abandoned her status as co-

equal tenant and assumed the status of overnight guest—

indications that, if considered by this Court, would

compel affirmance. See pp. 28-30, infra.) As explained in

Roberts v. United States Jaycees, 468 U.S. 609, 618

(1984): “The Court has long recognized that, because the

Bill of Rights is designed to secure individual liberty, it

must afford the formation and preservation of certain

kinds of highly personal relationships a substantial mea-

sure of sanctuary from unjustified interference by the

State.” This same interest in the highly private and

sensitive marital relationship is also reflected in common-

law principles, such as the privilege afforded confidential

marital communications. See pp. 12-13, supra. In that

context, neither spouse may testify to private commu-

nications over the other’s objection. The same rule

should apply here. If one spouse objects to the other’s

proposed intrusion into marital privacy, that objection

should be sustained. Failure to object, of course, can

result in forfeiture of the right, as in Matlock itself. But

where the objection is made, it must be respected.

21

Property law, to the extent relevant, also reflects the

special nature of the marital relationship. At common

law, there were three predominant structures of con-

current ownership: tenancy in common, joint tenancy,

and tenancy by the entirety. Tenancy in common, the

most common form of concurrent ownership today, is

characterized by separate fractional ownership by each

tenant. United States v. Craft, 535 U.S. 274, 279-80

(2002). There are no restrictions on who may enter into a

tenancy in common, and tenants in common may uni-

laterally alienate their own shares or place encumbrances

upon those shares. /bid. A joint tenancy is similar in

many respecis: There are no restrictions on who may

enter into a joint tenancy, and each joint tenant enjoys

certain rights in the property, including the right to

exclude. /bid. Unlike a tenancy in common, however,

each joint tenant possesses the entire estate, rather than

a fractional share, and a joint tenant also has a right of

automatic inheritance known as “survivorship.” /bid. In

order for one joint tenant to alienate his interest in the

tenancy, the tenancy must be converted to a tenancy in

common, though most States facilitate such alienation.

Tenancy by the entirety, in contrast, is a “unique sort

of concurrent ownership that can only exist between

married persons.” Craft, 535 U.S. at 280-81 (citing 4 G.

Thompson, Real Property § 33.02 (D. Thomas ed. 1994)).

One of the chief characteristics of a tenancy by the

entirety is that it cannot be severed unilaterally; nor can

a tenant’s interests be conveyed, leased, or transferred

unilaterally. Instead, transfer typically requires the

consent of both spouses or the ending of marriage in

divorce. /d at 281. The ability of tenants by the entirety

to introduce strangers to the household by alienating

their interests is therefore more limited than in other

contexts. Tenants in common can sell their interest and

thereby inject strangers into the property unilaterally;

22

tenants by the entirety may not. 7 Powell on Real

Property §§ 50.06|4|, 52.03|4|. Following those same

principles, many States also hold that neither spouse may

encumber the marital property through separate debts.

Id. § 52.03|3}; e.g., Beal Bank, SSB v. Almand & Assocs.,

780 So. 2d 45, 53 (Fla. 2001) (“{WJhen property is held as

a tenancy by the entireties, only the creditors of both the

husband and wife, jointly, may attach the tenancy by the

entireties property; the property is not divisible on behalf

of one spouse alone, and therefore it cannot be reached to

satisfy the obligation of only one spouse.”).

Addressing the “typical” modern tenancy by the en-

tirety, this Court has concluded that it accords each

spouse an individual right to exclude. Craft, 535 U.S. at

282-83. Indeed, the Court relied on that as a basis for

determining that the husband had a sufficient interest in

an entireties property for it to be subject to a tax lien. /d.

at 283 (“In determining whether respondent’s husband

possessed ‘property’ or ‘rights to property’ within the

meaning of 26 U.S.C. § 6321, we look to the individual

rights created by *** state law rules. According to

Michigan law, respondent’s husband had * * * the

following rights with respect to the entireties property:

*** the right to exclude third parties from it * * * .”)

(emphasis added). Advocating the same position, the

United States observed that “[eJach spouse has separate

rights in the present use of the property,” U.S. Br. at 13,

United States v. Craft, 535 U.S. 274 (2002) (No. 00-1831)

(emphasis added), and characterized the “right of each

spouse ‘to exclude others’ from property held in a

tenancy by the entirety” as “‘one of the most essential

sticks in the bundle of rights that are commonly charac-

terized as property,’” id. at 14 (quoting Dolan, 512 U.S.

at 384) (emphasis added).

This Court, of course, has rejected the view that the

boundaries of lawful police conduct should be set by

23

reference to hoary rules of real property. Matlock, 415

U.S. at 172 n.7. One could hardly expect an officer on the

scene to make fine distinctions among tenants in com-

mon, joint tenants, and tenants by the entirety. But

constitutional limits on police invasions into personal

privacy are informed by the understandings society

shares and respects as legitimate, and property law often

reflects those principles. Here, there can be little dispute

that a stranger at the door is not licensed to push his way

into the house past an objecting cotenant, much less

press his way into the marital bedroom past an objecting

spouse, merely because another purports to consent.

The same rule should apply to the police.

4. The Property Cases Cited By Petitioner And Its

Amici Do Not Support A Contrary Rule

Respondent and its amici cannot seriously contest the

social custom and shared understanding described above.

Nowhere do they identify a social understanding that

strangers may push their way into the marital abode past

a present and objecting spouse at the putative invitation

of the other. Perhaps recognizing that defect, the United

States argues (in a footnote) that real property principles

in fact privilege individual cotenants to insert strangers

into the household over the objection of present and

objecting cotenants. U.S. Br. at 16 n.4.

The argument is not well founded. The cases and cited

authorities stand for a much more limited (and less

controversial) proposition. First, for the most part, they

address the situation where one “tenant in common”

invites a guest or business visitor onto the property with

the acquiescence of or in the absence of another tenant.

See Granger v. Postal Tele. Co., 50 S.E. 193 (S.C. 1905)

(where one tenant in common granted permission to

defendant company to construct and maintain telegraph

lines on the property with the knowledge and consent of

24

the plaintiff cotenant, there is no trespass); Dinsmore v.

Renfroe, 225 P. 886 (Cal. Ct. App. 1924) (plaintiffs,

tenants in common, not present and objecting to the

entry of a stranger). Those cases may recognize the

ability of cotenants to authorize entry despite “non-

consenting cotenants,” 86 C.J.S., Tenancy in Common

§ 135, at 391 (1997), but even that rule is far from

uniformly accepted, ibid. (“some authority” holds that “a

tenant in common cannot license a third person to enter

*** as against the rights of non-assenting cotenants”);

pp. 16-17, supra. In any event, those authorities merely

address “nonconsenting tenants,” i.e., cases where the

consent of another cotenant was not obtained before

entry. They do not address cases where, as here, the

other cotenant is present and expressly objects to entry

because it will interfere with his quiet enjoyment. The

rule for express objections is very different: A license to

enter is “valid only until one of the cotenants expresses

his dissent.” 2 Tiffany & Jones, supra, § 457, at 275.

Other cases support the corresponding rule that, once

an invitee has entered with valid permission, he cannot

be converted into a trespasser and forcibly ousted by a

late-arriving cotenant. See Causee v. Anders, 20 N.C.

388 (1839); Buchanan v. Jencks, 96 A. 307 (R.1. 1916); see

also 86 C.J.S., supra, at 391. That too is consistent with

social understandings and the dominant societal interest

in maintaining the peace. One who enters a home with

consent surely does not do so with the expectation that he

will be assaulted (as in Causee) if another tenant arrives

later and objects to the invitation. Nor does one who

enters under license expect to become the defendant in a

trespass action for damages merely because late-arriving

tenants disagree with the first tenant’s decision to admit

him (as in Jencks).

But that hardly suggests that an invitee can enter into

the home in the first place when another cotenant is

25

present and objecting to entry. None of the cases or

treatises cited by the United States articulate that rule;

they at best address the circumstance of a non-assenting

tenant who raises objections after the fact. Where a

cotenant is present and objects to entry, the cases

generally favor—consistent with the strong interest in

avoiding violent confrontation—preserving the status

quo and disallowing self-help to alter the situation. When

a cotenant is present and objecting, the visitor is not

permitted to push his way inside past the objector, since

such entry may create confrontation. Conversely, when

the visitor has already entered the premises, his “license”

may be withdrawn, but the dissenting cotenant cannot

engage in self-help to eject the visitor forcibly, as that too

could create the potential for undesirable confrontation.

Finally, the cases cited by the United States al! involve

tenants in common, not marital cotenants, and most

involve entry onto land rather than into the home.

Where the occupants are involved in the more intimate

marital relationship, the law is more protective of their

privacy and interests in the home. See pp. 21-23, supra.

It is, moreover, inconsistent with the respect society

accords the marital relationship for police to create or

exploit fissures in the marital bond by pitting spouses

against each other, seeking one spouse’s consent to

overturn the other’s refusal. This Court ought not adopt

a rule that encourages such tactics.

C. The Law Enforcement Interest Is Dwarfed By

The Corresponding Intrusion On Privacy, Safety,

And Other Societal Values

There can be no dispute that consent searches, as a

general matter, serve important law enforcement in-

terests. But that interest is certainly not so great that it

counsels in favor of extending the doctrine to validate

searches where the police ask the defendant for consent

26

and consent is withheld. Indeed, extending the concept

of consent that far would aid law enforcement only in

those cases where the interest in intruding on personal

privacy is particularly slight—where there is no probable

cause to suspect a crime and no exigency.

Where the police have a genuine need to enter the

home against the citizen’s wishes, the system established

by the Framers, as well as this Court’s cases, provide a

mechanism to accommodate that need. Where the

officers have probable cause, they may seek a warrant

and enter the home. Indeed, when it comes to entering

the home, there is a strong presumption in favor of

requiring officers to obtain a warrant issued on probable

cause by a neutral, detached judicial officer. Payton v.

New York, 445 U.S. 573, 586 (1980) (“It is a ‘basic

principle of Fourth Amendment law’ that search»s and

seizures inside a home without a warrant are pre-

sumptively unreasonable.” (quoting Coolidge v. New

Hampshire, 403 U.S. 443, 477-78 (1971))). Where there

are exigent circumstances such as hot pursuit, the police

may dispense with the warrant requirement and pursue

the fleeing suspect into the home. Warden, Md.

Penitentiary v. Hayden, 387 U.S. 294, 298 (1967). And

where the police fear that an individual—tipped off to

their presence by the request for consent or some other

event—may destroy evidence while they obtain a

warrant, the police may briefly detain that individual

outside the home to prevent such destruction while the

warrant is being obtained. ///inois v. McArthur, 531 U.S.

326, 333 (2001).

For that reason, petitioner (Br. at 17) errs in asserting

that the rule set forth by the Supreme Court of Georgia

would “thwart the ability of law enforcement officials to

locate and seize evidence of a crime before evidence is

destroyed.” This Court’s decisions already address that

circumstance. Where there is sufficient reason to believe

—— ow.

27

contraband is present, the officers can obtain a warrant.

And where there is sufficient reason to fear the evi-

dence’s destruction before a warrant can be obtained, as

in McArthur, supra, the police may act reasonably to

prevent the destruction.

Indeed, there appears to be only one circumstance in

which this Court’s cases would frustrate entry—where

the police cannot obtain a warrant issued on probable

cause and they lack sufficient grounds to seek war-

rantless entry by reason of exigent circumstance. But in

that circumstance—where the police do not have

sufficient grounds for believing that a crime is being

committed, and no exigency exists—the law enforcement

interest in entering the home is virtually nonexistent.

The police may have a sufficient interest to ask for

consent to search. But they do not have a sufficient

interest to warrant disregarding the citizen’s decision to

refuse that consent. That is particularly true where, as

here, the police seek to enter the most private of

locations, the home (and within it the bedroom). The

sanctity of the home protected by the Fourth Amend-

ment, the dominion our society affords citizens over their

property, and the principle of self-determination implicit

in the concept of consent should not be sacrificed for

what amounts to the scantest of law enforcement needs.

It therefore comes as no surprise that the leading

legal commentators have almost uniformly reached the

same conclusion as the Supreme Court of Georgia in this

case. “When two or more persons have equal use of a

place in which both are present, the consent of one does

not normally eliminate the need for the consent of the

other(s) before a search is made.” Weinreb, 42 U. Chi. L.

Rev. at 63; 4 Wayne R. LaFave, Search and Seizure

§ 8.3(d), at 159 (4th ed. 2004) (Requiring the consent of

_both occupants has “somewhat greater appeal” because

“the risk assumed by joint occupancy is merely an

28

inability to control access to the premises during one’s

absence.”); see also 4 Thompson on Real Property

§ 31.07(d), at 51 (David A. Thomas, ed., 2004) (“The

consent [of one joint tenant to a police search] is

generally not valid to permit a search if another joint

tenant, present at the same time, objects.”). That

conclusion is mandated by the social understandings that

society accepts as legitimate. It is reflected in principles

of real property law. It is supported by basic principles

of self-determination. And it is compelled by any sensible

balancing between individual liberty and law enforce-

ment need.

D. The Record Indicates That Mrs. Randolph’s Con-

nection To The Property Was Insufficient To

Elevate Her Decision Over Respondent’s

Finally, petitioner overlooks two other factors ren-

dering the search unreasonable in this case: Mrs.

Randoph’s attenuated relationship to the home, and

evidence that—whatever Mrs. Randolph’s relationship to

the home generally—the bedroom searched was not an

area under her common control.

1. While the Georgia Supreme Court resolved this

case under the assumption that Mrs. Randolph and her

husband had equal rights and control over the home, Pet.

App. 1, the record indicates that such was not the case—

and that the police knew that. As explained above, Mrs.

Randolph had separated from her husband and moved

hundreds of miles away, with her son and many of her

belongings, about a month before the search took place.

She had, moreover, recently returned for only a couple

days for the apparently limited purpose of collecting

additional belongings. See pp. 2-3, supra. Given her

separation from her husband, her abandonment of the

home, and the limited purpose of her return, Mrs.

Randolph was more akin to an overnight guest than a co-

wot

29

equal tenant, and her interest in the property was

therefore inferior to that of the home's principal

occupant, respondent.

It is well established that the consent of a mere visitor

is ineffective over the objection of the home’s primary

occupant. As a leading treatise explains, objection by a

present person with a superior interest trumps a consent

given by a person with an inferior interest. See 4

LaFave, supra, § 8.3(d), at 160 (“[A]n objection by the

person with the superior interest would prevail over a

consent given by a person with a lesser interest.”) (citing

cases); Lucero v. Donovan, 354 F.2d 16, 20-21 (9th Cir.

1966) (holding that police search was unlawful where a

“welcome visitor” consented to a warrantless search over

a resident’s protest and demand for a warrant). Here,

the police knew facts that, at the very least, cast doubt on

the extent of Mrs. Randolph’s interest in the property.

10/2/03 Tr. at 14-15. ;

This case, in any event, is utterly unlike //linois v.

Rodriguez, 497 U.S. 177 (1990). The police here did not

merely make a mistake of fact regarding whether some-

one was a cotenant (much less a mistake based on

misrepresentations by the person purporting to give

consent). Instead, the police willfully chose to ignore

respondent’s express and unequivocal decision to refuse

consent and to seek consent from another person instead.

Because the Fourth Amendment proscribes that effort to

bypass respondent’s decision, because it offends the

social understandings we all share, and because it under-

mines important social values (including respect for

individual sovereignty and maintaining the domestic

peace), that tactic cannot be upheld.

2. Petitioner’s position is defective for a second

reason. It is well established that a third party cannot

validly consent to the search of an area over which he has

ne common control, even if that area is within shared

30

premises. 4 LaFave, supra, § 8.3(e), at 167. In Matlock,

for example, this Court focused on whether the occu-

pant’s “relationship to the east bedroom” was sufficient

to afford him authority to give valid consent to a search

of that room. 415 U.S. at 167. The question thus was not

whether the occupant had control over the entire house

in general, but whether there was “common authority,”

“mutual use,” or “joint access or control” over the specific

location in question. /d. at 171 & n.7. Here, the record

evidence indicates that the bedroom where the police

found the straw and white residue was known to the

officer as “Mr. Randolph's bedroom,” not the couple’s

bedroom. Because it has not been established that Mrs.

Randolph had common control over the bedroom, her

consent cannot validate the search.

CONCLUSION

The judgment of the Supreme Court of Georgia should

be affirmed.

Respectfully submitted.

PAMELA HARRIS JEFFREY A. LAMKEN

CO-CHAIR, AMICUS COMMITTEE Counsel of Record

NATIONAL ASSOCIATION OF HEATHER S. ALLEN

CRIMINAL DEFE? .E LAWYERS KEVIN T. JACOBS

1150 18th St. NW, Ste. 950 BAKER BOTTs L.L.P.

Washington DC 20036 1299 Pennsylvania Ave., NW

(202) 872-8600 Washington, D.C. 20004-2400

(202) 689-7700

Counsel for

National Association of Criminal Defense Lawyers

SEPTEMBER 1, 2005