Randolph v. State

• Decision Date: 01 December 2003
• Docket Number: No. A03A0906.,A03A0906.
• Citation: 590 S.E.2d 834,264 Ga. App. 396
• Parties: RANDOLPH v. The STATE.
• Court: Georgia Court of Appeals

590 S.E.2d 834

264 Ga. App. 396

RANDOLPH v. The STATE.

No. A03A0906.

Court of Appeals of Georgia.

December 1, 2003.

Collier & Gamble, Wilbur T. Gamble III, Dawson, for appellant.

Cecilia M. Cooper, Dist. Atty., Richard E. Thomas, for appellee.

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 Matlock.¹¹ 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

...