Randolph v. State

590 S.E.2d 834, 264 Ga. App. 396, 2004 Fulton County D. Rep. 262, 2003 Ga. App. LEXIS 1499

• Court: Court of Appeals of Georgia
• Decided: December 1, 2003
• Docket: A03A0906
• Status: Published

Opinions

Ruffin, Presiding Judge.

This case addresses the critical issue of the authority of police officers to conduct a warrantless search of a marital residence when, after one spouse refuses, the other spouse grants consent to search the home. Does the latter’s consent supersede the first spouse’s objection? The trial court concluded that it did, and it denied a motion to suppress. For reasons that follow, we disagree with the trial court and thus reverse.

The material facts are not in dispute. Scott Randolph and his wife were having marital problems and separated in late May 2001. Mrs. Randolph took a great deal of her clothing and went with their son to her parents’ home in Canada. Mr. Randolph continued to reside at the marital residence in Americus, Georgia. On or about July 4, 2001, Mrs. Randolph and the child returned to their house in Americus.

On July 6, 2001, Mrs. Randolph reported a domestic disturbance, and the police responded at around 9:00 a.m. When the officers arrived, Mrs. Randolph appeared very upset and complained that her husband had taken their child away from the house. She also accused Mr. Randolph of using large amounts of cocaine, thereby causing financial problems for the family. Shortly thereafter, Mr. Randolph returned to the house without the child. He explained that he had taken the child to a neighbor’s house because he was concerned that his wife was going to leave the country with the child again. He also accused his wife of being highly inebriated and an alcoholic. Sergeant Brett Murray accompanied Mrs. Randolph to the neighbor’s house to retrieve the child.

After they returned to the Randolph residence, Murray confronted Mr. Randolph about his wife’s allegations concerning his cocaine use and asked for consent to search the residence. When Mr. Randolph responded with an unequivocal “no,” Murray turned to Mrs. Randolph and asked for her consent. Readily agreeing to the search, Mrs. Randolph took Murray to an upstairs bedroom. Peering in the doorway, the officer observed a “piece of cut straw” on a dresser in the room. Upon closer examination, the officer observed some white residue on the straw, which he believed had been used for ingesting cocaine.

Murray collected an evidence bag and called the district attorney’s office. Upon reaching the district attorney’s office, he was instructed to stop the search and obtain a warrant. Mrs. Randolph then informed him that she was withdrawing her consent to search the house.

Murray, accompanied by the Randolphs, then took the straw and residue to the police station and obtained a warrant to search the house. During the ensuing search, numerous drug-related items were seized. Ultimately, an indictment was returned charging Mr. Randolph with possession of cocaine. He moved to suppress evidence of the drugs, claiming that search of the residence over his express objection violated his Fourth Amendment rights. The trial court denied the motion, and we granted Mr. Randolph’s application for interlocutory appeal.

1. It is well established that “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.”¹ This is so because it is reasonable to expect that a co-habitant with the authority to give such consent might, in fact, exercise that authority.² And the touchstone of Fourth Amendment jurisprudence is reasonableness.³

We are now presented with the question of whether it is reasonable for one occupant to believe that his stated desire for privacy will be honored, even if there is another occupant who could consent to a search. Notably, neither our Supreme Court nor the United States Supreme Court has addressed the precise issue before us, although United States v. Matlock⁴ is exceedingly close. However, at least one jurisdiction has concluded that it is reasonable for an occupant to believe his wishes will be honored as, “‘ordinarily, persons with equal rights in a place would accommodate each other by not admitting persons over another’s objection while he was present.’ ”⁵ Indeed, if one person with equal rights in a place refuses to honor a co-occupant’s objection, such refusal hints of underlying trouble in the relationship and should raise a question as to why consent was given.⁶ Accordingly, we find this reasoning persuasive.

Moreover, we find it inherently reasonable that police honor a present occupant’s express objection to a search of his dwelling, shared or otherwise. One who grants consent to search may subsequently withdraw such consent, thereby terminating law enforcement officers’ authority to search.⁷ Inherent in the power to grant consent is the power to vitiate that consent. Who, then, may terminate the search? Is it limited to the consenting co-occupant? Or, may an objecting co-occupant exercise his competing right to be free from the search? We believe the answer to this last question is an unequivocal “yes.” If “common authority” is the basis for allowing one co-occupant to consent to a search on behalf of all occupants, it seems reasonable that “common authority” should permit a co-occupant to exercise privacy rights on behalf of all occupants.

Such result is particularly reasonable in this case, which also involves a marital dispute. When possible, Georgia courts strive to promote the sanctity of marriage and to avoid circumstances that create adversity between spouses.⁸ Allowing a wife’s consent to search to override her husband’s previous assertion of his right to privacy threatens domestic tranquility.⁹

In resolving this issue, Judge Phipps’ special concurrence favors a case-by-case analysis. However, it is incumbent upon this Court to provide as much guidance as practicable to those officers confronted with the daily task of balancing citizens’ Fourth Amendment privacy interests against the officers’ duty to investigate crime. And a bright-line rule requiring police to obtain a warrant in the face of competing responses to requests for consent provides a clear guideline for law enforcement. Such rule should not unduly hamper law enforcement, as generally a warrant is the rule rather than the exception.

The cases the special concurrence cites to support a case-by-case analysis are not persuasive. In several of those cases, the victim was in imminent danger, and the exigent circumstances exception likely would permit a warrantless search.¹⁰ And if there is no imminent danger, a law enforcement officer should be required to obtain a warrant.

The dissent, with verbal ease, but without verbal economy, is not persuasive either. Although the dissent accuses the Court of misconstruing Matlock and “conflat[ing] two factors” in Fourth Amendment jurisprudence — an individual’s waiver of privacy and the subsequent effect of such waiver — such is not so. To the contrary, it is the dissent that has misconstrued Matlock, expanding it in a manner that is inconsistent with the Fourth Amendment. This case is both legally and factually distinguishable from Matlock11 Here, Mr. Randolph 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. We should first assess the right asserted before concluding that the right has been waived.

According to our interpretation — one that is consistent with Fourth Amendment principles — Matlock and its progeny stand for the proposition that, in the absence of evidence to the contrary, there is a presumption that a co-occupant has waived his right of privacy as to other co-occupants. However, when police are confronted with an unequivocal assertion of that co-occupant’s Fourth Amendment right, such presumption cannot stand. After all, the right involved is the right to be free from police intrusion, not the right to invite police into one’s home. Thus, the issue is not Mrs. Randolph’s right to consent to a search, but whether she may waive her husband’s right to be free from the search. Given Mr. Randolph’s unequivocal assertion of that right, it seems disingenuous to conclude that he waived it.

We are not the first Court to reach this result, despite the dissent’s suggestion to the contrary.¹² As artfully stated by a Florida court,

if the Fourth Amendment means anything, it means that the police may not undertake a warrantless search of defendant’s property after he has expressly denied his consent to such a search. Constitutional rights may not be defeated by the expedient of soliciting several persons successively until the sought-after consent is obtained.¹³

Nonetheless, the dissent’s position has its allure: if a co-occupant has assumed the risk that another co-occupant will permit a search of an area, he no longer has a reasonable expectation of privacy in that area. But the risk assumed by a co-occupant is that, in the absence of evidence to the contrary, the other co-occupant might grant consent to search.¹⁴

The dissent, passionate it its quest, poignant in its resolve, and even practicable in its approach, peers myopically at the problem presented. This Court should not read the Fourth Amendment from a perspective of impoverishment, but from the vantage point of proper respect for a fundamental right. The type of seemingly innocuous encroachment advocated by the dissent is that which the United States Supreme Court alluded to when it wrote:

It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.¹⁵

Given our charge to construe the Fourth Amendment expansively, we conclude that Mr. Randolph’s exercise of his Fourth Amendment right should be honored.

2. On appeal, the State argues that even if Mrs. Randolph lacked authority to consent, the search was nonetheless valid. Citing Illinois v. Rodriguez,¹⁶ the State contends that the search was permissible because the police had a good faith belief that Mrs. Randolph had authority.

In Illinois v. Rodriguez, the defendant had severely beaten his girlfriend. She went to her mother’s home and summoned the police. She then took the police to the defendant’s apartment, told them that she lived there with him, unlocked the door with a key, and gave them permission to enter. Unbeknownst to the police, the girlfriend had in fact moved out of the apartment several weeks earlier. The Supreme Court nonetheless held the warrantless entry valid, because it was based upon the consent of a third party whom the police reasonably believed to possess common authority over the premises. Rodriguez is distinguishable, because the police here knew the facts before conducting the search.

Although the United States Supreme Court adopted a “good faith” exception to the exclusionary rule of the Fourth Amendment in United States v. Leon,17 the Supreme Court of Georgia later concluded in Gary v. State¹⁸ that in Georgia a defendant’s statutory right to exclusion of evidence has no “good faith” exception. Therefore, consistent with both Rodriguez and Gary, we must determine the validity of the search based on the facts known to the officer at the time of the search. If we conclude from those facts that the search was not valid, we cannot uphold it on grounds that, under the facts, the officer may have drawn a good faith legal conclusion contrary to our own.

3. The State also argues that even if the warrantless search was invalid, the evidence was admissible under either the “independent source” exception or the “inevitable discovery” exception to the exclusionary rule.

The independent source doctrine stems from Murray v. United States.19 In that case, several law enforcement agents conducted an illegal search of a warehouse and observed but did not seize evidence that was in plain view. The agents later obtained a warrant to search the warehouse. In obtaining the warrant, they neither mentioned the prior illegal entry nor relied on any observations made during the entry. In execution of the warrant, the agents then seized the evidence they had observed earlier. The Supreme Court held that suppression of the evidence was not required if the government could establish that the warrant was in fact a genuinely independent source for its discovery.²⁰ Murray is distinguishable because the State has not shown that it established probable cause for issuance of the warrant in this case independently of facts revealed by the unlawful search. “The admissibility of [evidence] under the ‘independent 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. [Cits.]”²¹

Under the inevitable discovery doctrine, the State must show (1) that evidence derived from police error or illegality would have been ultimately or inevitably discovered by lawful means, and (2) that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the illegal conduct.²² Given the State’s failure to show that the evidence would have ultimately been discovered, this argument lacks merit.

Judgment reversed.

Smith, C. J., Miller and Ellington, JJ., concur and concur specially. Phipps, J, concurs specially. Andrews, P. J., and Blackburn, P. J., dissent.

1 United States v. Matlock, 415 U. S. 164, 170 (94 SC 988, 39 LE2d 242) (1974).

2 Id. at 171, n. 7.

3 See Padron v. State, 254 Ga. App. 265, 268 (1) (562 SE2d 244) (2002).

4 Supra.

5 (Punctuation omitted.) State v. Leach, 113 Wash.2d 735, 739-741 (782 P2d 1035) (1989) (quoting 3 W. LaFave, Search and Seizure).

6 The facts of this case illustrate the problem with dueling responses to a request for consent to search. The Randolphs were clearly at odds, hurling accusations of wrongdoing at one another. Thus Mrs. Randolph’s motive for consenting to the search in the face of her husband’s refusal is troubling. Under these circumstances, it is preferable that a neutral magistrate determine whether Mrs. Randolph’s accusations were founded or whether they stemmed from the ongoing altercation.

7 See Montero v. State, 245 Ga. App. 181, 184 (537 SE2d 429) (2000) (defendant “was as free to withdraw his consent to search ... as he was not to give such consent in the first place”).

8 See Robeson v. Intl. Indem. Co., 248 Ga. 306, 308-309 (3) (282 SE2d 896) (1981) (policy rationale supporting interspousal tort immunity doctrine).

9 Granted, the Randolphs appear to have a dearth of marital harmony. However, the fact that Mrs. Randolph subsequently withdrew her consent to search suggests that the relationship may not have been entirely acrimonious.

10 See Lawler v. State, 276 Ga. 229, 233 (4) (b) (576 SE2d 841) (2003) (“[t]he need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal”).

11 Furthermore, I am unpersuaded that we are bound in this case by federal law. Randolph raised both federal and Georgia constitutional grounds in his motion to suppress. Assuming, for the sake of argument, that federal law dictates the result advocated by the dissent, it does not automatically follow that Georgia law requires the same result. See Powell v. State, 270 Ga. 327, 330 (3) (510 SE2d 18) (1998) (“the ‘right to be let alone’ guaranteed by the Georgia Constitution is far more extensive tha[n] the right of privacy protected by the U. S. Constitution”) (emphasis supplied).

12 See Leach, supra; Silva v. State, 344 S2d 559 (Fla. 1977); Smith v. State, 465 S2d 603 (Fla. App. 1985); In the Matter of the Welfare of D. A G, 484 NW2d 787 (Minn. 1992) (although several of these cases have been questioned, legal research shows that the cases retain precedential value. Moreover, the cases serve to illustrate that there is, in fact, a split of authority as to how Matlock should be interpreted).

13 (Punctuation omitted.) Lawton v. State, 320 S2d 463, 465 (Fla. App. 1975).

14 See Matlock, supra at 170.

15 (Punctuation omitted.) Coolidge v. New Hampshire, 403 U. S. 443, 454 (91 SC 2022, 29 LE2d 564) (1971).

16 497 U. S. 177 (110 SC 2793, 111 LE2d 148) (1990).

17 468 U. S. 897 (104 SC 3405, 82 LE2d 677) (1984).

18 262 Ga. 573 (422 SE2d 426) (1992).

19 487 U. S. 533 (108 SC 2529, 101 LE2d 472) (1988).

20 Price v. State, 270 Ga. 619, 622-623 (2) (513 SE2d 483) (1999).

21 Waldrip v. State, 267 Ga. 739, 750-751 (18) (482 SE2d 299) (1997).

22 Taylor v. State, 274 Ga. 269, 274 (3) (553 SE2d 598) (2001).