Indiana Law Review Post-Georgia v. Randolph: An Opportunity to Rethink the Reasonableness of Third-Party Consent Searches Under the Fourth Amendment Daniel E. Pulliam* Introduction When police entered Kevin Henderson's southwest Chicago home on an autumn Sunday morning, he greeted them with profanity-laced instructions to leave. 1 Minutes later, the officers hauled him to jail for domestic battery. 2 Henderson's wife, Patricia, signed a consent-to-search form and led the officers to the home's attic. 3 The warrantless search turned up an assortment ofnarcotics, drug paraphernalia, and a variety of weapons in the attic, including an AR-15 automatic assault rifle and live ammunition, and a machete, a crossbow, additional ammunition, and an explosive device in the basement. 4 Prosecutors charged Kevin with possessing with intent to distribute narcotics and possessing weapons as a felon. 5 Consent searches as illustrated above implicate practical values as significant as nearly any other in Fourth Amendment jurisprudence and are likely law enforcement's prevailing method of conducting warrantless searches. 6 The U.S. Supreme Court has long deemed warrantless third-party consent searches reasonable for Fourth Amendment purposes,7 and until 2006, the Court steadily * J.D. Candidate, 2010, Indiana University School of Law—Indianapolis; B.A., 2004, Butler University, Indianapolis, Indiana. I would like to thank my patient, loving, life-long friend and wife Noelle Brooke for listening to me discuss this and for applying her attentive eye to multiple drafts. I would like to also thank Professor Joel Schumm for directing me towards source material for this topic and for serving as a sounding board for my multiple proposals, and Michelle Richey and Corrie Bilke for providing valuable feedback and editing. 1 . United States v. Henderson, No. 04 CR 697, 2006 U.S. Dist. LEXIS 88404, at * 1 -2 (N.D. 111. Nov. 29, 2006), reversed, 536 F.3d 776, 777 (7th Cir. 2008); see also Marc McAllister, What the High Court Giveth the Lower Courts Taketh Away: How to Prevent Undue Scrutiny ofPolice Officer Motivations Without Eroding Randolph Is HeightenedFourth Amendment Protections, 56 Clev. St. L. Rev. 663, 686-87 (2008) (discussing the district court's suggestion that the testifying officers altered their story regarding Henderson's salutation). 2. Henderson, 2006 U.S. Dist. LEXIS 88404, at *2. 3. Id. 4. Id at*2-3. 5. Id at *4. 6. See Joshua Dressler & Alan C. Michaels, Understanding Criminal Procedure 261 n.5 (4th ed. 2006) (citing Richard Van Duizend et al., The Search Warrant Process: Preconceptions, Perceptions, andPractices 2 1 ( 1 984) for the statistic that ninety-eight percent of warrantless searches are consent searches). 7. See United States v. Matlock, 415 U.S. 164, 171, 172 n.7 (1974); Charles R. Johnson, Recent Case, Henry v. Commonwealth, 175 S.E.2d416 (Va. 1970), 39 U. Cin. L. Rev. 807, 808 (1970) (noting that third-party consent doctrine is "an anomalous doctrine"). 238 INDIANA LAW REVIEW [Vol. 43:237 broadened this exception to the warrant requirement. 8 The Court has used a two- prong rationale in upholding third-party consent searches: (1) individuals who share a residence or an automobile assume the risk that the co-occupant could allow a search; and (2) a co-occupant has authority to consent in their own right. 9 Yet in 2006 the Court seemed to reverse course in Georgia v. Randolph. 10 A five-justice majority held that a co-occupant could not validly consent when another co-occupant: (1) is physically present; and (2) expressly refuses to consent at the home's entrance. 11 Soon after Randolph, critics predicted police would simply remove non-consenting co-occupants, despite the Court's suggestion in dicta that such tactics were impermissible. 12 Kevin's removal, along with other similar cases, illustrates the fulfillment of these predictions. 13 But courts have diverged and the circuit courts of appeals are split over whether Randolph bars searches when police obtain consent to search from a third-party in the absence ofthe non-consenting party. 14 The circuit split provides the Court with an opportunity to revisit and rejuvenate this maligned doctrine, 8. See Florida v. White, 526 U.S. 559, 569 (1999) (Stevens, J., dissenting) (noting that "exceptions have all but swallowed the [Fourth Amendment's] general rule" requiring warrants); Illinois v. Rodriguez, 497 U.S. 177, 198 (1990) (Marshall, J., dissenting) (allowing persons with mere apparent authority to consent to searches purges "some ofthe liberty" protected by the Fourth Amendment). 9. Dressler & Michaels, supra note 6, at 273. 10. Georgia v. Randolph, 547 U.S. 103, 121-22 (2006); see C. Dan Black, Note, Georgia v. Randolph: A Murky Refinement of the Fourth Amendment Third-Party Consent Doctrine, 42 GONZ. L. REV. 32 1 , 334 (2007) (noting that Randolph provides a "much needed refinement"). But see McAllister, supra note 1, at 668 (concluding that Randolph is not a "watershed case"). 11. Randolph, 547 U.S. at 122-23. 12. Id. at 121-22. See Stephanie M. Godfrey & Kay Levine, Much Ado About Randolph: The Supreme Court Revisits Third Party Consent, 42 TULSA L. REV. 731, 748 (2007), for the prediction that police would relocate a search's target to avoid Randolph's holding. See also Andrew Fiske, Disputed-Consent Searches: An Uncharacteristic Step Toward Reinforcing Defendants' Privacy Rights, 84 DENV. U. L. Rev. 721, 735 (2006) (arguing that Randolph incentivizes police to remove occupants "most likely to refuse a search"). 13. See United States v. Henderson, 536 F.3d 776, 777-78 (7th Cir. 2008), cert, denied, No. 08-9834, 2009 WL 1043883 (U.S. Oct. 5, 2009); see also United States v. Travis, 3 1 1 F. App'x 305, 310 (1 1th Cir. 2009) (holding that Travis's arrest was not for the purpose of avoiding his "possible objection"); United States v. McKerrell, 491 F.3d 1221, 1228-29 (10th Cir. 2007) (holding that there was no evidence police arrested McKerrell to avoid objections); United States v. Alama, 486 F.3d 1062, 1066-67 (8th Cir. 2007) (rejecting a claim that officers arrested Alama to avoid objections); United States v. Parker, 469 F.3d 1074, 1078-79 (7th Cir. 2006) (noting that although police arrested Parker before requesting a co-occupant's consent, there was no evidence they arrested him to coerce consent). 1 4. See Henderson, 536 F.3d at 783 (noting that Henderson's case, UnitedStates v. Hudspeth, 5 1 8 F.3d 954 (8th Cir. 2008) (en banc) and UnitedStates v. Murphy, 5 1 6 F.3d 1 1 1 7 (9th Cir. 2008) are "materially indistinguishable" based on the case's facts); cases cited supra note 13; discussion infra Part IV.A. 2009] FOST-GEORGIA V. RANDOLPH 239 and Randolph opens the door for the Court to restore meaning to co-occupants' rights to be secure "against unreasonable searches and seizures." 15 This Note first analyzes the Fourth Amendment's history ofprotecting liberty and the development of third-party consent search doctrine. Part II examines Randolph, its undercutting of existing third-party consent doctrine, and lower courts' responses. Part III proposes a new approach for determining the reasonableness of third-party consent searches that endeavors to better support Fourth Amendment liberties. I. Diminishing Fourth Amendment Rights: "Nothing New Under the Sun"16 Over the centuries, legal systems have treated the right to be free from unreasonable government searches as anything but a jealously guarded liberty. 17 Government officials operating in societies ostensibly governed by the rule oflaw have authorized unfettered searches and seizures since the 1 500s. 18 Even after the courts and society recognized the danger of unrestricted searches, abuses continued to the extent that when thirteen of Great Britain's North American colonies declared independence, the revolution's leaders instituted limits on their government's search and seizure powers. 19 But U.S. courts have failed to consistently guard this liberty, particularly in its third-party consent doctrine. 20 A. A BriefHistory ofFourth Amendment Liberties The mid-sixteenth-century Tudor dynasty used broad search and seizure 15. U.S. Const, amend. IV; see Akhil Reed Amar, Fourth Amendment First Principles, 1 07 Harv. L. Rev. 757, 757 (1994) (offering that Fourth Amendment law "is an embarrassment"); Thomas P. Crocker, From Privacy to Liberty: The Fourth Amendment After Lawrence, 57 UCLA L. Rev. 1, 3-4 (2009) (proposing that the Supreme Court's "emphasis on liberty" in Lawrence v. Texas, 539 U.S. 558 (2003), "provides a fruitful way ofreorienting Fourth Amendment protections when considering particular kinds ofinterpersonal relationships" for the purposes ofre-considering the Court's third-party consent doctrine). 1 6. Ecclesiastes 1 :9 (New King James Version) ("That which has been is what will be, That which is done is what will be done, And there is nothing new under the sun."). 17. See Fredrick Seaton Siebert, Freedom of the Press in England 1 476- 1 776 : The Rise and Decline of Government Control 82 (1956). 18. See id. 19. See U.S. Const, amend. VI; see also Godfrey & Levine, supra note 12, at 732 (noting that "the British government's willingness to abandon [principles] for its own ends convinced the framers that more proactive steps were necessary to prevent similar abuses"). 20. See Schneckloth v. Bustamonte, 412 U.S. 218, 288-90 (1973) (Marshall, J., dissenting) (arguing "police always have the upper hand" in consent searches); Note, Retreat: The Supreme Court andthe New Police, 1 22 HARV. L. Rev. 1 706, 1 726 n. 1 28 (2009) (noting that both Randolph and the Court's 1966 decision in Miranda v. Arizona, 384 U.S. 436 (1966), "place[d] limits on police, but not on their discretion. They both create procedural hurdles, but once clear of them, police can largely act as they see fit"). 240 INDIANA LAW REVIEW [Vol. 43:237 powers to control printing presses. 21 Queen Mary I chartered a printing company with powers to "search whenever it shall please them in any place, shop, house, chamber, or building of any printer, binder or bookseller." 22 The system experienced some success, but within decades, the government's power diminished and individuals demanded "to see, to hear, and to know." 23 But nearly a century later, Parliament attempted to censor printers who criticized the legislative body by ordering searches and seizures. 24 The printers resisted, and after decades of suppression, efforts to control the press through search and seizure lost practical effectiveness as the searches' targets successfully obtained arrest warrants against the searchers through common-law courts. 25 British common law ultimately evolved to where authorities could only grant search warrants "for stolen goods," and courts deemed warrants "obnoxious" if they were not particularized as to the location. 26 In 1 604 in Semayne 's Case, 21 Sir Edward Coke famously said, "the house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose." 28 Nevertheless, the British readily discarded these principles for the convenience ofgovernment officials. 29 The "general warrant" granted government officers an expansive authority to search and seize an indeterminate number of persons and items and was the "most powerful legal weapon" against government critics. 30 British authorities used this legal bludgeon to have "the secret cabinets and bureaus . . . thrown open to . . . search and inspection . . . whenever the secretary of state [thought] fit to charge, or even to suspect, a person ... of a seditious libel." 31 Lord Chief Justice Pratt planted the seeds of the Fourth Amendment in 1763 when he recognized that the general warrant's power subverts liberty.32 The British government's abuses prompted Revolutionary leaders to enshrine protections against such abuses in a Bill of Rights. 33 John Adams reported that the Boston merchants' 1761 attempt to block new writs of assistance sparked the 2 1 . Siebert, supra note 1 7, at 82 . 22. Id at 82 (citing I A Transcript of the Registers of the Company of Stationers of London 1554-1640 xxxi (Edward Arber ed., 1950)). 23. Mat 86-87. 24. Id. at 175. 25. Mat 175-177. 26. Davis v. United States, 328 U.S. 582, 603-04 (1946) (Frankfurter, J., dissenting). 27. 77 Eng. Rep. 194, 195 (K.B. 1604). 28. Id. (instituting the "knock and announce" rule). 29. Godfrey & Levine, supra note 12, at 732-33. 30. Potter Stewart, The Road to Mapp v. Ohio andBeyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 COLUM. L. REV. 1365, 1369 (1983); see Black's Law Dictionary 1723 (9th ed. 2009). 31. United States v. U.S. Dist. Court (Keith), 407 U.S. 297, 327-28 (1972) (Douglas, J., concurring) (quoting Entick v. Carrington, 19 How. St. Tr. 1029, 1063, 95 Eng. Rep. 807 (K.B. 1765)). 32. Stewart, supra note 30, at 1370. 33. Godfrey & Levine, supra note 12, at 732-33. 2009] POST-GEORGIA V. RANDOLPH 241 "flame of fire," which bore "the Child Independence" that fifteen years later "grew up to manhood, and declared himself free." 34 At George Washington's urging, Congress passed a Bill ofRights that contained the Fourth Amendment, 35 which provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 36 The academy continues to debate the Fourth Amendment's original meaning. 37 Often forgotten is that past generations considered its protections "[s]o basic to liberty" that every state adopted its own version.38 Yet scholars observe that the erosion of Fourth Amendment liberties in favor of police convenience produces "frightening" semblances ofthe despised general warrants that prompted the adoption of the Fourth Amendment. 39 B. Early American Search and Seizure Jurisprudence The leading search and seizure case is Boyd v. United States,40 in which the U.S. Supreme Court held that "compulsory extortion" of a person's "private papers to be used as evidence to convict him" is no different from forcing individuals to testify against themselves in violation of the Fifth Amendment. 41 The Court, in language long substantively disregarded, recognized that "the [F]ourth and [FJifth [A]mendments run almost into each other" with regard to 34. 1 Wayne R. LaFave, Search and Seizure §1.1 (4th ed. 2009) (citing and quoting 1 C. Adams, The Life and Works of John Adams 247-48 (1 856)). A Writ of assistance was a legal device customs officials used to search for smuggled products in buildings. Id. 35. Id. 36. U.S. CONST, amend. IV. See James B. White, The Fourth Amendment as a Way of Talking About People: A Study of Robinson and Matlock, 1974 Sup. Ct. Rev. 165, 172 n. 14 (1974), who notes that the House's version of the Amendment differed from what the Senate ratified and the States' adopted, diminishing arguments that the framers found significance in the precise wording. 37. For an extensive Fourth Amendment analysis, see Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MlCH. L. Rev. 547, 552 (1999), who argues that the modern understanding of the Fourth Amendment is the product of unanticipated developments. 38. See Davis v. United States, 328 U.S. 582, 604 (1946) (Frankfurter, J., dissenting). 39. SeeNancy J. Kloster, Note, AnAnalysis ofthe GradualErosion ofthe FourthAmendment Regarding Voluntary ThirdParty Consent Searches: TheDefendant 's Perspective, 72 N.D. L. REV. 99, 123 (1996). 40. 116U.S.616(1886);^eCarrollv. United States, 267 U.S. 132, 147 (1925) (noting that Boyd is the leading case on search and seizure); see also In re January 1976 Grand Jury, 534 F.2d 719, 724 (1976) (same). 41. Boyd, 116 U.S. at 630. 242 INDIANA LAW REVIEW [Vol. 43 :237 searches and forcibly extorting testimony from criminal suspects. 42 Boyd and Mapp v. Ohio,43 where the Court applied the exclusionary rule to state courts through the Fourteenth Amendment's Due Process clause, raised the Fourth Amendment from "a dead letter."44 One of the Court's first consent search cases was Amos v. United States.45 Here, the Court rejected an argument that when a suspect's wife granted police access to the home she shared with the suspect, she "waived" the suspect's constitutional rights. 46 But in Davis v. United States 41 the Court held that a willing consent made a warrantless search reasonable under the Fourth Amendment. 48 In Davis, Justice Douglas distinguished Amos by noting that the search occurred in public during business hours and not in a private residence. 49 In dissent, Justice Frankfurter strongly objected to law enforcement's ability to skirt the limits of the warrant requirement by obtaining consent, reasoning that the Constitution did not "make it legally advantageous not to have a warrant, so that the police may roam freely" in search of evidence.50 Officers regularly seek consent for convenience's sake in lieu of getting a warrant. 51 Police perform over ninety percent of warrantless searches using consent. 52 Law enforcement talk openly about consent searches' benefits. One officer went so far as to state that officers are encouraged "to try to talk their way 42. Id. ; see Schneckloth v. Bustamonte, 4 1 2 U.S. 2 1 8, 246-47 ( 1 973) (noting that Miranda's rational, where statements obtained from a defendant unaware of his rights violated the Fifth Amendment privilege against self-incrimination, did not apply to consent searches). 43. 367 U.S. 643, 655 (1961). A main purpose of the rule is to deter police from excessive searches. See LaFave, supra note 34, § 1.1. Scholars criticize the rule because ofthe "pressure" to reduce the rule's reach. See James Boyd White, Comment, Forgotten Points in the 'Exclusionary Rule' Debate, 81 MiCH. L. Rev. 1273, 1281 (1983) (noting that courts do not administer the rule sensibly). 44. Mapp, 367 U.S. at 670 (Douglas, J., concurring) (citing Wolfv. Colorado, 338 U.S. 25, 47 (1949) (Rutledge, J., dissenting)); Abel v. United States, 362 U.S. 217, 255 (1960) (Brennan, J., dissenting). 45. 255 U.S. 313(1 92 1); see George C . Thomas III, Terrorism, Race and a New Approach to Consent Searches, 13 Miss. L.J. 525, 545 (2003) (noting that Amos is the earliest consent search case). 46. Amos, 255 U.S. at 317 (declining to consider whether the wife could waive her absent husband's constitutional rights because it was "perfectly clear" she was coerced). 47. 328 U.S. 582(1946). 48. Id. at 593. The District Court did not believe Davis's claim that the agents "threatened to break down the door" if he did not provide them access. Id. at 586-87. 49. Id. at 592. 50. Id. at 595 (Frankfurter, J., dissenting). 51. 4 LaFave, supra note 34, §8.1. 52. Dressler & Michaels, supra note 6, at 26 1 n.5 (citing Van Duizend, supra note 6, at 21); Paul Sutton, The Fourth Amendment in Action: An Empirical View ofthe Search Warrant Process, 22 CRIM. L. BULL. 405, 415 (1986). 2009] POST-GEORGIA V. RANDOLPH 243 into a search." 53 But according to the New Jersey Attorney General's Office, consent searches are not effective because most "do not result in a positive finding" ofcriminal activity. 54 Consent searches encourage distrust ofthe judicial system, and no one has empirically validated the claim that consent searches produce efficient results. 55 Critics condemn consent searches arguing that no one would consent willingly to a search that uncovers criminal activity. 56 Courts exalt the form of a person's consent—an expression ofwords that seem to suggest consent despite the circumstances—over a genuine consent.57 In Schneckloth v. Bustamonte,5* in which the Court held that the State did not have to demonstrate that an individual had knowledge of the right to refuse consent to a warrantless search, 59 Justice Thurgood Marshall said in dissent that consent searches permit a "game of blindman's buff, in which the police always have the upper hand, for the sake of nothing more than the convenience of the police." 60 Justice Douglas, in his own dissent, noted that reasonable individuals might "read an officer's 'May V as the courteous expression of a demand backed by force of the law." 61 Some scholars have called for a "per se ban on" the use of consent searches. 62 Others have 53. Kate Shatzkin & Joe Hallinan, Highway Dragnets Seek Drug Couriers—Police Stop Many Carsfor Searches, SEATTLE TIMES, Sept. 3, 1992, at B6. See Kathy Barrett Carter, Senate Panel to Look at Profiling Bans, STAR-LEDGER, May 9, 2002, at 45 (quoting former New Jersey Governor James E. McGreevey describing consent searches as "valuable" police tools). 54. Peter Verniero & Paul H. Zoubek, Office of the Att'y Gen. of the State of N.J., Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling 28 (1999), http://www.state.nj.us/lps/intm_419.pdf. 55 . Marcy Strauss, Reconstructing Consent, 92 J. CRIM. L. &CRIMINOLOGY 211, 260 (200 1 ) (noting that the "magnitude of [the police's] interests are unclear"). 56. See id at 211-12 (arguing that "most people don't willingly consent"); Jay-Z, 99 Problems, on THE BLACK ALBUM (Roc-A-Fella/Def Jam 2004) ("'Well, do you mind if I look round the car a littl' bit?' . . . And I know my rights so you gon' need a warrant for that . . . Nah, I ain't pass the bar but I know a little bit. Enough that you won't illegally search my shit."). 57. See Lloyd L. Weinreb, Generalities ofthe Fourth Amendment, 42 U. Chi. L. Rev. 47, 56- 57 (1974) (noting that little weight should be given to a person's consent "if he extends the invitation to a policeman sitting on his chest and pounding his head on the steps"). 58. 412 U.S. 218 (1973). 59. Id. at 248-49. The Court also held that the State must demonstrate that the consent was granted voluntarily and not the product of express or implied duress or coercion. Id. at 248. 60. Id. at 289-90 (Marshall, J., dissenting). 61. Id. at 275-76 (Douglas, J., dissenting) (citing Bustamonte v. Schneckloth, 448 F.2d 699, 701 (9th Cir. 1971)). Justice Douglas seems less excited about consent searches in Schneckloth than he was as the author ofthe majority in Davis v. United States, 328 U.S. 582, 593-94 (1946). See supra notes 47-49 and accompanying text. 62. See Strauss, supra note 55, at 271 . But see Orin S. Kerr, The Casefor the Third-Party Doctrine, 107 MICH. L. REV. 561, 562 (2009); Note, The Fourth Amendment and Antidilution: Confronting the Overlooked Function ofthe Consent Search Doctrine, 119 HARV. L. Rev. 2187, 2197-98 (2006) (arguing consent searches gives people "power to stand up for their own rights"). 244 INDIANA LAW REVIEW [Vol. 43:237 63 called for the elimination of consent searches in only specific situations. C. Third-Party Consent: Undermining Fourth Amendment Liberty Protections Third-party consent searches draw on an ancient tactic employed by government officials to implicate individuals in crime. 64 One of the earliest recorded third-party consent searches occurred when Joseph, Egypt's overseer, ordered his steward to plant his silver goblet in his youngest brother's food bag. 65 As the brothers left Egypt, the steward stopped and accused them ofgoblet theft.66 The brothers, astonished by the accusation, consented to a search and promised to be Joseph's slaves if the steward found the goblet in their belongings. 67 The text does not suggest whether the youngest brother objected, or whether he knew the silver goblet was in his sack, but the goblet's discovery provides an example of how third-party consent could cause harsh consequences.68 The brothers returned to face their brother, but fortunately for them, Joseph maintained the ruse only temporarily. 69 For individuals in U.S. criminal justice systems, third-party consent searches have lasting consequences not likely contemplated when individuals agree to share property with their roommate, friend, or spouse. The Supreme Court has paid little attention to third-party consent searches, despite their controversial nature. 70 Initially, the Court seemed reluctant to sanction third-party consent searches. 71 In Chapman v. United States,12 the Court rejected landlord-tenant law as a means to decide whether an owner's consent to a search ofa tenant's home made the search valid.73 The Court held that allowing warrantless searches under a property owner's authority reduced "the Fourth Amendment to a nullity," as tenants' privacy would be subject to an owner's 63. Christo Lassiter, Eliminating Consentfrom the Lexicon of Traffic Stop Interrogations, 27 Cap. U. L. Rev. 79, 133-34 (1998). 64. See Genesis 44:1-13. 65. Id. at 1-21; see Alan M. Dershowitz, The Genesis of Justice: Ten Stories of Biblical Injustice that Led to the Ten Commandments and Modern Morality and Law 186-87(2000). 66. Genesis 44:6. 67. Mat 8-9. 68. Id. at 1 1 - 1 2 ("Then each man speedily let down his sack to the ground, and each opened his sack. So he searched.") (New King James Version). 69. Mat 44:13-45:1. 70. See 4 LaFave, supra note 34, § 8.3; see also Note, Consent Searches: A Reappraisal After Miranda v. Arizona, 67 COLUM. L. Rev. 130, 148 (1967) (noting that co-occupant consent search admissibility problems are "most perplexing"). 71. See 4 LaFave, supra note 34, § 8.3. 72. 365 U.S. 6 1 ( 1 96 1 ). Chapman was the first third-party consent case since Amos forty years earlier. See 4 LaFave, supra note 34, § 8.3; supra notes 45-50 and accompanying text. 73. Chapman, 365 U.S. at 612, 617. 2009] FOST-GEORGIA V. RANDOLPH 245 discretion. 74 But since the 1960s, the Court has framed Fourth Amendment liberties as a tension between privacy rights and the fact that individuals surrender some of those rights by sharing property. 75 In Stoner v. California™ the Court held that the Fourth Amendment protects hotel guests against searches of their rooms despite a desk clerk's consent. 77 The Court concluded that Fourth Amendment rights would not "be eroded by strained applications of the law of agency or by unrealistic doctrines of 'apparent authority."' 78 The Court held that only the hotel guest's rights were at stake, and thus, only the guest could waive that right. 79 Legal scholars have noted that Stoner "could have sounded the death knell" of third-party consent searches if lower courts interpreted the decision to hold that third-party consent searches were valid only if "the consenting party was actually an agent of the nonconsenting party." 80 But in Frazier v. Cupp? x the Supreme Court adjusted its approach by launching the assumption of risk theory. 82 Since the 1974 decision in United States v. Matlock* 2, the Supreme Court has held that a co-occupant's consent validates warrantless entries and searches. 84 Police arrested Matlock in the front yard ofa home he rented with his girlfriend.85 The officers knew that Matlock lived there, but did not ask him if they could search. 86 Instead, Matlock's girlfriend, wearing a robe and holding her son, allowed the officers to search, which turned up $4,995 in a diaper bag. 87 In abandoning Stoner™ the Court held that consent from an individual 74. Id. at 617 (quoting Johnson v. United States, 330 U.S. 10, 14 (1948) (alteration omitted)). 75. See Comment, Third Party Consent to Search and Seizure, 33 U. Cm. L. Rev. 797, 810 (1966); see also John D. Castiglione, Human Dignity Under the Fourth Amendment, 2008 Wis. L. Rev. 655, 659 (2008) (noting that reasonableness analysis has "devolve[d] into little more than an awkward balancing exercise between the needs of law enforcement and the interests ofprivacy"). 76. 376 U.S. 483 (1964). 77. Mat 488-89. 78. Mat 488. 79. Id. at 489. 80. See Steven H. Bow, Case Comment, Relevance of the Absent Party's Whereabouts in Third Party Consent Searches, 53 B.U. L. Rev. 1087, 1 104 (1973); Comment, supra note 75, at 801-03 (describing the agency principles as applied in the third party consent context). 81. 394 U.S. 731 (1969). 82. Id. at 740 (holding that people assume "the risk" that a third party will allow someone else to search shared property). The Court did not have to overrule Stoner because the police wanted to search a bag they believed the consenting party owned. 4 LaFave, supra note 34, § 8.3. 83 . 4 1 5 U.S . 1 64 ( 1 974); see Sharon E. Abrams, Comment, Third-Party Consent Searches, the Supreme Court, and the Fourth Amendment, 75 J. CRIM. L. & CRIMINOLOGY 963, 964 (1984) (noting that Matlock was the Court's first third-party consent case). 84. See Matlock, 415 U.S. at 1 71 ; see also U.S. Const, amend. IV. 85. Matlock, 415 U.S. at 166. 86. Id. 87. Id. at 166-67. 88. 4 LaFave, supra note 34, § 8.3. 246 INDIANA LAW REVIEW [Vol. 43:237 possessing "common authority"justifies warrantless searches.89 In a footnote, the Court adopted a two-prong rule. 90 First, "common authority" could not be based on a "mere property interest [that] a third party has in the property." 91 Instead, the Court based "common authority" on "mutual use of the property by persons generally having joint access or control for most purposes." 92 The "common authority" made reasonable a co-occupant's consent to the search "in his own right." 93 Second, the Court recognized that co-occupants assume "the risk that one of their number might permit the common area to be searched."94 In 1990, the Court extended Matlock's first prong in Illinois v. Rodriguez. 95 Gail Fischer told police that Edward Rodriguez assaulted her earlier that day in an apartment that she referred to as "our" apartment. 96 Fischer told the officers that Rodriguez was asleep in the apartment and consented to unlock the door to have Rodriguez arrested. 97 The officers entered without a warrant and saw drug paraphernalia and cocaine. 98 Police found Rodriguez asleep in the bedroom with more cocaine, and the State charged him with possession with intent to deliver. 99 At trial, Rodriguez moved to suppress the evidence, claiming that Fischer lacked the authority to consent to the entry because she moved out of the apartment weeks earlier. 100 The trial court agreed, finding that Fischer was merely an "infrequent visitor," and rejected the State's argument that as long as police reasonably believed Fischer had authority to consent, the police did not violate the Fourth Amendment. 101 The U.S. Supreme Court reversed the trial court, holding that a third party's apparent authority, as judged by the police, could make a search reasonable despite the fact that the third party lacked actual authority. 102 Despite this expansion, the approach had a problem: if police requested 89. Matlock, 415 U.S. at 171. 90. Matl72n.7. 91. Id. 92. Id 93. Id.; see Bow, supra note 80, at 1 108 (noting that privacy expectations allow courts to "dilute or devalue" a non-consenter's "rights in order to add substance to the consenting party's independent right" to consent to a search). 94. Matlock, 415 U.S. at 1 72 n.7; see Virginia Lee Cook, Third-Party Consent Searches: An Alternative Analysis, 41 U. Cm. L. Rev. 121, 131-32 (1973) (noting that assumption of risk is inadequate because co-occupants generally are "unaware that they can refuse"). But see Abrams, supra note 83, at 983 (noting that "assumption ofrisk" could mean that non-consenters do not have privacy). 95. 497 U.S. 177, 179, 186 (1990). 96. Mat 179. 97. Id. 98. Mat 180. 99. Id. 100. Id. 101. Id. 102. Mat 186. 2009] FOST-GEORGIA V. RANDOLPH 247 consent to search and one co-occupant refused while another consented, applying the Matlock rationale no longer seemed so reasonable. Logically, Matlock dictated that the non-consenter assumed the risk that co-occupants could consent. Thus the warrantless search would be reasonable under Matlock's rationale. But this is not what the Supreme Court concluded in 2006 in Georgia v. Randolph. m II. Georgia v. Randolph: Third-Party Consent Doctrine Shifts Course Before 2006, the Supreme Court's third-party consent doctrine appeared to reinstate the hated general warrant. 104 Police merely had to find someone who appeared to them to have common authority over an area and convince them to agree to a search without informing them of their right to refuse, and courts would deem the search reasonable. 105 Although the Court had not definitively declared whether a present co-occupant could prevent such searches, the issue seemed all but decided for finding such warrantless searches reasonable. 106 But in 2006, the Supreme Court decided otherwise in its hotly contested five-to-three Georgia v. Randolph decision. 107 Not only did the Court find a search in the face of an express reftisal of consent unreasonable, the Court also adjusted its approach to third-party consent searches, 108 suggesting that the time was ripe for a complete overhaul of the tattered doctrine. A. Georgia v. Randolph: The Road to "Widely Shared Social Expectations "109 Scott Randolph separated from his wife, Janet, when she moved to Canada with their son in May 2001, but about three months later, she returned to their Georgia home. 110 Janet called the police early one morning to report that Scott took their son. 111 When the officers arrived, Janet told them about their marital troubles, her trip to Canada, and that Scott's cocaine habit caused them financial problems. 112 Not much later, Scott returned, told the police officers that he took their son to a neighbor's house because he worried that Janet would take him to Canada again, that he did not use cocaine, and that it was his wife who was the drag abuser. 113 103. 547 U.S. 103, 120 (2006); see supra text accompanying note 11. 104. Kloster, supra note 39, at 123. 105. See Rodriguez, 497 U.S. at 185-86. 106. See Posting of Orin Kerr to the Volokh Conspiracy, http://www.volokh.com/ posts/ 1 1 3 1 323472.shtml (Nov. 6, 2005, 1 8:3 1 ) (predicting that the Supreme Court would not likely limit or overrule the broad Matlock interpretation). 107. Randolph, 547 U.S. at 105 (Alito, J., did not participate). 108. Id. at 136-37 (Roberts, C.J., dissenting). 109. Id. at 111 (majority opinion). 1 10. Id. at 106. It not clear whether she returned to reunite with Scott or get property. Id. 111. Mat 107. 112. Id. 113. Id. 248 INDIANA LAW REVIEW [Vol. 43:237 After an officer retrieved their son, Janet claimed that there was evidence of Scott's drug habit in the home, but when the officer asked Scott to consent to a search, he "unequivocally refused." 1 M The officer turned to Janet who "readily" consented and took the officer to the upstairs bedroom where the officer found a powdery residue that he suspected was cocaine. 115 Scott, Janet, and the officer went to the police station, where the State indicted Scott for cocaine possession after a subsequent search ofthe home, authorized by a warrant, turned up copious amounts of drug-related items. 116 The trial court denied Scott's motion to suppress the evidence as a product of an invalid warrantless search due to his refusal to consent, ruling that Janet had the necessary authority to consent to the initial search. 117 The Georgia Court of Appeals reversed, holding that "'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." 118 The court further held that the Fourth Amendment protected "the right to be free from police intrusion, not the right to invite police into one's home," and that it would be "disingenuous to conclude" that Scott waived his rights. 119 The Georgia Supreme Court affirmed the Court of Appeals's reversal in a brief opinion that distinguished Rodriguez and Matlock on the basis that the police faced physically present co-occupants. 120 The court held that when a co- occupant was present and capable ofobjecting, the police were required to obtain the co-occupant's consent because holding otherwise exalted expediency over Fourth Amendment liberties. 121 B. The U.S. Supreme Court's Ruling When the U.S. Supreme Court granted certiorari in Georgia v. Randolph, some scholars predicted that the Court would reverse the Georgia Supreme Court, because the Court had long held "that anyone with common authority over a space can consent to a police search." 122 Instead, the U.S. Supreme Court adopted the Georgia Court of Appeals's bright-line rule: 123 if both parties are present, a 114. Id. 115. Id 116. Id. 117. Mat 107-08. 118. Randolph v. State, 590 S.E.2d 834, 838 (Ga. Ct. App. 2003) (quoting Lawton v. State, 320 So. 2d 463, 465 (Fla. Dist. Ct. App. 1975)). 119. Id. 120. State v. Randolph, 604 S.E.2d 835, 836-37 (Ga. 2004). 121. Id at 837 (concurring with and quoting State v. Leach, 782 P.2d 1035, 1040 (Wash. 1989)). 122. Kerr, supra note 106 (citing United States v. Matlock, 415 U.S. 164 (1974)). 123. See Georgia v. Randolph, 547 U.S. 103, 122-23 (2006); Jason M. Ferguson, Randolph v. Georgia: The Beginning ofa New Era in Third-Party Consent Cases, 3 1 NOVAL. Rev. 605, 622 2009] VOST-GEORGIA V. RANDOLPH 249 co-occupant's consent cannot take precedence over another co-occupant's refusal. 124 The Court used a "widely shared social expectations" framework 125 in deciding that Fourth Amendment reasonableness dictates that "a physically present co-occupant's stated refusal to permit entry prevails" over another co- occupant's consent. 126 Justice Souter's majority opinion in Randolph distinguished Matlock and Rodriguez on the basis that Randolph was physically present when he refused to consent. 127 Under his "widely shared social expectations" framework, Souter deemed that visitors to a shared residence "would have no confidence that one occupant's invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, 'stay out.'" 128 Justice Souter admitted that if Matlock and Rodriguez were not "undercut by" Randolph's holding, the Court was "drawing a fine line" because requiring police to locate suspects in order to obtain their consent "would needlessly limit the capacity ofthe police to respond to ostensibly legitimate opportunities in the field." 129 Yet in oral arguments, Justice Souter said that Matlock and Rodriguez would "become almost silly cases" ifthe Court accepted Randolph's "argument that the presence of the person there expressing an objection is what makes the difference" because Matlock and Rodriguez "rest upon an assumption that is clearly contrary to fact." 130 That false assumption was that the defendants in Matlock and Rodriguez supposedly gave up their Fourth Amendment right by failing to be present when the police requested the co-occupant to consent because Matlock was in a nearby police car, and Rodriguez was sleeping in the home. 131 It remains to be seen whether other justices agree with Justice Souter's assertion that Matlock and Rodriguez would become "silly cases" if an express objection by a present co-occupant make searches conducted with the consent of another co-occupant per se unreasonable. Despite the Court's efforts to preserve Matlock and Rodriguez, Randolph places a crippling limitation on the concept that "authority to consent over a common area constitutes an actual individual right." 132 In addition, Randolph (2007). 124. Randolph, 547 U.S. at 120; see Jason E. Zakai, Note, You Say Yes, But Can I Say No?: The Future ofThird-Party Consent Searches After Georgia v. Randolph, 73 BROOK. L. REV. 42 1, 444-47 (noting that courts interpret "express refusal" strictly and "physically present" narrowly). 125. Randolph, 547 U.S. at 1 1 1. 126. Id. at 106. 127. Mat 120-21. 128. Matll3. 129. Mat 121-22. 130. Transcript of Oral Argument at 46-47, Randolph, 547 U.S. 103 (No. 04-1067). 131. See Tracey Maclin, The Good and Bad News About Consent Searches in the Supreme Court, 39 McGEORGE L. REV. 27, 69-70 (2008). 1 32. Shane E. Eden, Student Article, Picking the Matlock: Georgia v. Randolph and the U.S. Supreme Court 's Re-Examination ofThird-Party-ConsentAuthority in Light ofSocial Expectations, 52 S.D. L. Rev. 171, 177 (2007). 250 INDIANA LAW REVIEW [Vol. 43:237 appears "to alter, if not in part overrule" Rodriguez by failing to discuss "the reasonableness ofthe officer's conduct." 133 Matlock's first prong seemed to give co-occupants unlimited authority to consent to searches, but Justice Souter's opinion limits that right in concluding that the right is "not an enduring and enforceable ownership right" limited "by customary social usage." 134 The fact that Justice Souter hardly addressed the Matlock's second prong to determine whether Randolph assumed the risk that his co-occupant would consent to a warrantless search suggests that prong is possibly a dead letter. 135 Chief Justice Roberts recognized as much in arguing in dissent that the Court "should acknowledge that a decision to share . . . necessarily entails the risk that those with whom we share may in turn choose to share . . . with the police."136 The decision, although sensible, only narrowly protects the Fourth Amendment liberties of individuals who share, leaving ample ways for police to circumvent the substantive protections the decision attempted to implement. 137 III. The Circuit Split on Randolph's Rule Scholars predicted the confusion surrounding lower courts' interpretations of Randolph}™ The most perplexing involve facts similar to Kevin Henderson's: police remove a non-consenting co-occupant, obtain another co-occupant's consent, and gather evidence against the removed, non-consenting party. 139 Removing the non-consenting party thwarts Randolph and places the resulting 1 33. Ferguson, supra note 123, at 638. Abrams, supra note 83, at 977, notes that Matlock does not allow presence and objection to bar searches because that would mean that rights end when people leave, "an anomaly" the Court would not create. Yet, Randolph created that anomaly. See Randolph, 547 U.S. at \20-2\; see also, Scott P. Johnson, The Judicial Behavior ofJustice Souter in Criminal Cases and the Denial ofa Conservative Counterrevolution, 7 PIERCE L. REV. 1,14 (2008) (noting that "Randolph appeared to contradict precedent"). 134. Randolph, 547 U.S. at 120-21. 135. See id. at 128 (Roberts, C.J., dissenting). 136. Id. at 142. 137. See Godfrey & Levine, supra note 1 2, at 73 1 . 138. See George M. Dery, III & Michael J. Hernandez, Blissful Ignorance? The Supreme Court's Signal to Police in Georgia v. Randolph to Avoid Seeking Consent to Search from All Occupants of a Home, 40 CONN. L. Rev. 53, 83 (2007) (concluding that Randolph "offered arguments that caused more questions than answers"); Madeline E. McNeeley, Case Note, Validity ofConsent to Warrantless Search ofResidence when Co-Occupant Expressly Objects, 74 TENN. L. Rev. 259, 274 (2007) (concluding that Randolph abandoned "sound legal theory and reasoning in favor of conjecture and assumptions"). 139. United States v. Henderson, 536 F.3d 776, 777-78 (7th Cir. 2008); see United States v. Ryerson, 545 F.3d 483, 489 (7th Cir. 2008) (holding that defendant's absence due to an arrest did not place the case under Randolph because the police did not arrest him to avoid objections); United States v. Chisholm, CR 07-795 (NGG)(MDG), 2008 U.S. Dist. LEXIS 106474, at *59 (E.D.N.Y. Oct. 29, 2008) (holding that the search ofChisholm's bedroom dressers, after his arrest, was valid because the consenter had authority to consent to search those areas). 2009] POST-GEORGIA V. RANDOLPH 251 search under Matlock. 140 This tactic' s reasonableness has yet to be determined. 141 At least five justices believe that broadening of the third-party consent doctrine hit a speed bump and perhaps a roadblock. 142 The following three cases present an opportunity to explain how far Fourth Amendment protections extend in contested-consent searches. 143 1 40. Dery & Hernandez, supra note 1 38, at 55 (noting that Randolph "sends a signal to police to move people as if they were pieces on a chessboard" by making routine the moving of"persons away from seeing or hearing what occurs at the front door of the home"). 141 . Compare Henderson, 536 F.3d at 785 (limiting Randolph to situations where the non- consenting co-occupant is present), with United States v. Murphy, 5 1 6 F.3d 1117,11 24-25 (9th Cir. 2008) (holding that searches are invalid when a co-occupant objects regardless of location). 142. See McAllister, supra note 1, at 704; see also Zakai, supra note 124, at 464-65 (noting that third-party consent search doctrine changed as a result ofRandolph). 143. The five justices who form Randolph's majority, written by Justice Souter, include the three conventionally liberal justices: Stevens, Ginsburg, and Breyer. Georgia v. Randolph, 547 U.S. 103, 105 (2006); see Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court 327 (2007) (noting that justices Stevens, Souter, Ginsburg, and Breyer are the Court's four liberals "by contemporary standards"). The Court's swing member, Justice Kennedy, see id., joined silently, Randolph, 547 U.S. at 105, but it was Justice Breyer's concurrence that drew attention as Randolph's swing vote. See Ferguson, supra note 1 23, at 64 1 (noting that ChiefJustice Roberts's dissent suggests "Justice Breyer may have been initially inclined to support" the dissenters because "Roberts states that Justice Breyer, 'joins what becomes the majority opinion'" (quoting Randolph, 547 U.S. at 142 (Roberts, C.J., dissenting))). With the election ofDemocrat Barack Obama, the Court is poised to shift, but not necessarily in favoring an expansive role for the Court's Randolph decision. See Adam Liptak, To Nudge, Shift or Shove the Supreme Court Left, N.Y. TIMES, Feb. 1, 2009, at WK1 (suggesting that the next justices that are likely to retire after Souter are Stevens and Ginsburg). The author ofthe Randolph opinion retired and was replaced. See Michael A. Fletcher & Paul Kane, Successor to Souter Anticipated by October, Wash. POST, May 2, 2009, at AOL The two other liberal justices most comfortable with the Randolph decision (Justice Stevens's concurrence focused on criticizing Justice Scalia's "originalist" theory ofconstitutional interpretation, see Randolph, 547 U.S. at 123- 24 (Stevens, J., concurring)) are predicted to be the next retirees. These predictions make an expansive vision ofRandolph seem bleak. See Godfrey & Levine, supra note 12, at 750 (noting that the Court may decide "to emphasize the case-specific nature"). In addition, liberal journalists have cited Justice Sotomayor as having "a troubling record on criminal justice" issues. See James Ridgeway, The Progressive Case Against Sotomayor, MOTHER JONES (July 16, 2009), available at http://www.motherjones.com/politics/2009/07/progressive-case-against-sotomayor. Yet ChiefJustice Roberts indicated that he believed it was time to re-think Fourth Amendment jurisprudence, Randolph, 547 U.S. at 137, and Justice Alito, who was "something of a mystery when . . . nominated," Elliott M. Davis, Note, The Newer Textualism: Justice Alito 's Statutory Interpretation, 30 HARV. J.L. & Pub. POL'Y 983, 983 (2007), did not participate. Randolph, 547 U.S. at 123. A clue to the future of Randolph might be found in Justice Alito's 1985 application for a Justice Department promotion, where he wrote that his motivation for attending law school was partially based on his disapproval of the Warren Court. See Oyez.org, Samuel A. Alito, Jr., http://www.oyez.org/justices/samuel_a_alitoJr/ (last visited Mar. 1, 2009). During his 252 INDIANA LAW REVIEW [Vol. 43:237 A. Randolph Broadly Interpreted In United States v. Murphy, 144 police confirmed their suspicion that Stephen Murphy manufactured methamphetamine after detectives observed two individuals purchasing related ingredients and followed them to a storage unit used by Murphy. 145 After the individuals left the storage unit, a narcotics detective observed Murphy closing the unit's roll-up door. 146 When the detective knocked on the door, Murphy pulled the door up, and the detective saw a meth lab. 147 The detective arrested Murphy, read him his Miranda rights, conducted a protective sweep of the unit, and, after Murphy refused to consent to a full search of the unit, hauled him to jail. 148 A couple of hours later, narcotics detectives contacted the unit's renter, Dennis Roper, who told the detectives that he did not know about the lab, but permitted Murphy to stay there. 149 After the detectives arrested Roper on outstanding warrants, he signed a consent form for the officers to search the units where the detectives found and seized the lab. 150 At trial, Murphy contested the validity of Roper's consent on the basis that it could not overrule his refusal to consent. 151 The prediction that officers would adapt to Randolph by merely removing the non-consenter proved correct initially. 152 The district court denied Murphy's motion based on Matlock's two prongs: warrantless searches consented to by a co-occupant are reasonable, despite another co-occupant's refusal, because (1) a co-occupant has a right to permit a search and (2) the other co-occupant assumes the risk that the other confirmation hearings, Justice Alito maintained that those statements were merely an attempt to get a political job in a conservative administration. Id. Ifthe Court declines to extend the Randolph rule, the state high courts are more than capable ofestablishing an approach to contested third-party consent situations that protects its citizens from intrusive government searches. See discussion infra Part IV.D. 144. United States v. Murphy, No. CR 04-30057-AA, 2005 WL 2416828 (D. Or. Sept. 30, 2005), aff'd in part, rev 'd in part, 5 1 6 F.3d 1 1 1 7 (9th Cir. 2008). 145. Idatn. 146. Id. 147. Id. 148. Id. 149. Id. 150. Id.DX.n-2. 151. /