One roommate tells police to STAY OUT while the other consents to a search of home? Randolph

Scott Randolph was arrested for drug possession after police found cocaine in his home. The police did not have a warrant to search the home, but Randolph’s wife consented to the search. BUT! Randolph was also present at the time of the search and he objected to the police request to search.

At trial, Scott argued that the search was unconstitutional because of his objection, while the prosecution argued that the consent of his wife was sufficient.

In United States v. Matlock, the Supreme Court held that a consent to search by one who possesses common authority over premises is valid as against an absent nonconsenting person with whom that authority is shared. But in this case, both co-occupants are present.

It is fair to say that a caller standing at the door of a shared premises would typically not go inside despite one co-occupant’s invitation if the other occupant stood there saying, “Stay out”. The visitor’s reticence would reflect the common understanding that one co-tenant generally has no right to prevail over the express wishes of another, an understanding which is, in fact, borne out in property law. Since the co-tenant wishing to open the door to a third party thus has no recognized authority in law or social practice to prevail over a present and objecting co-tenant. His disputed invitation without more gives a police officer no better claim to reasonableness in entering than the officer would have had in the absence of any consent at all.

The Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained. Illinois v. Rodriguez, 497 U. S. 177 (1990); United States v. Matlock, 415 U. S. 164 (1974). The Court held that a physically present co-occupant stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him.

Full opinion here: Georgia v. Randolph, 547 U.S. 103 (2006),

Anton Vialtsin, Esq.
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