Supremes: All Parties Must Consent to Warrantless Search

Lyle Denniston has an informative roundup of the opinions in today’s ruling in Georgia v. Randolph wherein, “The Supreme Court ruled 5-3 . . . that it is unconstitutional for police without a warrant to search a home, if two occupants are present at the time and one consents but the other objects. The search may not go forward in the face of that objection, but the occupant must be present to have the objection count, the Court said in a decision written by Justice David H. Souter.”

The ruling, which strikes me as more than reasonable, sparked three separate dissents:

Chief Justice John G. Roberts, Jr., in his first written dissenting opinion, said the majority fashioned a rule that “does not implement the high office of the Fourth Amendment, but instead provides protection on a random and happenstance basis, protecting, for example, a co-occupant who happens to be at the front door when the other occupant consents to a search, but not one napping or watching television in the next room….The cost of affording such random protection is great, as demonstrated by the recurring cases in which abused spouses seek to authorize police entry into a home they share with a non-consenting abuser.”


Roberts’ dissenting opinion was joined by Justice Antonin Scalia. Scalia and Justice Clarence Thomas each wrote a separate dissenting opinion. The separate opinions by Stevens and Scalia engaged in a minor spat over the concept of constitutional interpretation according to “original understanding” of meaning.

It seems to me, though, that Roberts’ example is precisely the sort of circumstance where “consent” is obviously not given on the part of the subject of the search. Surely, an abused spouse would still have the right to call the police and the police would be allowed to enter the door if she opened it for them and take any reasonable action based on things in their plain sight, let alone intervene to stop physical abuse. On the other hand, she clearly should not be entitled to give her enraged consent to the search of a room occupied by another person who has an interest in not being searched. It is, after all, people, not places, that are protected under the 4th Amendment.

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.

There are, as with most rights, exceptions that have arisen in the common law over the years. Consent is the most obvious of these. But the circumstances are constrained:

-Fourth Amendment rights, like other constitutional rights, may be waived, and one may consent to search of his person or premises by officers who have not complied with the Amendment. 79 The Court, however, has insisted that the burden is on the prosecution to prove the voluntariness of the consent 80 […] Additional issues arise in determining the validity of consent to search when consent is given not by the suspect but by a third party. In the earlier cases, third party consent was deemed sufficient if that party ”possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” 85 Now, however, actual common authority over the premises is no longer required; it is enough if the searching officer had a reasonable but mistaken belief that the third party had common authority and could consent to the search. 86 [emphasis added]

Obviously, this ruling changes much of the interpretation of third party consent. It seems to me to be moving in the right direction, though: toward improving the rights of the individual. And, presumably, a spouse or roommater–or someone reasonably believed to be acting in those capacities–could still give valid consent if the other party were not present.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. floyd says:

    does a warrant still require that which is to be searched for to be specified? how would that apply in a warrantless search circumstance?why would anyone give voluntary blanket search permission the government?does entry alone effectively reduce private property to the status of plain public view? and now for my comment; be aware that ounce in the “justice system”, there is no cheap or easy way out. “presuption of innocence” is the stuff of theory or fantasy in the real world.

  2. floyd says:

    “presuption” should have read “presumption”, sorry

  3. MrGone says:

    It’s just a shame that the so called “originalists” thought otherwise! It was clear in the hearings for both Roberts and Alito that they tend to side with the government/police position on these matters. Maybe you finally see what some of us were worried about with these guys. Then again, maybe not.

    Be careful what you wish for, they may be coming for you next…

  4. verve says:

    I’m a bit confused by your post and the third comment. The title of the post implies that both parties must consent, but in your first paragraph you say that an objection only counts if the objector is present at the door. From your quote of Roberts’ dissent, it sounds like he’s saying that is hogwash, both parties must consent, period. It sounds to me that Roberts’ interpretation provides greater safeguard to liberty, not the other way around as the third commenter suggests.

  5. James Joyner says:

    Roberts would permit one person, say a spouse, give consent to a warrantless search even if the other present party, say the other spouse, objected. The majority would not.

  6. The obvious solution to the problem would be to get a warrant!! Getting a warrant on an emergency basis is not difficult and the police can secure the area until the warrant arrives. Thus if the police are faced with a consent/no-consent warrantless search–just get a damn warrant!!!!!!!

  7. James Joyner says:

    Matt: Correctamundo.

  8. Mythilt says:

    My prediction…the moonbats will use this as another ‘impeach Bush’ rally point with regards to the NSA wiretaps.

  9. slickdpdx says:

    Consistently emphasized is the right of the tenant who does not consent. Consistently overlooked is the right of the consenting tenant. (At least you mentioned she was enraged – giving an equitable but not legal reason to disregard HER right to control the property.)
    One other point: Where does this line of thinking take you in trespass or theft cases? If one owner lets me in the premises or lets me use the car can the other successfully accuse me of theft or trespass? That doesn’t seem right.

  10. James Joyner says:

    slickdpdx: I don’t think your examples are parallel. The 4th Amendment protects persons from warrantless searches; that’s not a right that other persons can abrograte. There is no similar protection, so far as I’m aware, to ensure one’s roommate does not invite guests or your wife doesn’t lend out your car.

  11. slickdpdx says:

    Surely she has a right to invite others, even the police, to enter, use or examine her property.