2.10: Chapter 11 - The Warrant Requirement- Exceptions (Part 3)

Waiving the Warrant Requirement: Consent

As is true of most constitutional rights, the right to be free from warrantless searches can be waived. Police investigations rely every day on such consent. Owners of vehicles and luggage allow officers to search their effects, and occupants of houses allow officers to enter and look around. There is no dispute about the principle that genuine consent serves as a valid substitute for a search warrant. The controversial questions include what is necessary for consent to be valid, who may provide valid consent, and whether certain police tactics render otherwise-valid consent ineffective.

Supreme Court of the United States

Merle R. Schneckloth v. Robert Clyde Bustamonte

Decided May 29, 1973 – 412 U.S. 218

Mr. Justice STEWART delivered the opinion of the Court.

It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is “per se unreasonable … subject only to a few specifically established and well-delineated exceptions.” It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. The constitutional question in the present case concerns the definition of “consent” in this Fourth and Fourteenth Amendment context.

I

The respondent was brought to trial in a California court upon a charge of possessing a check with intent to defraud. He moved to suppress the introduction of certain material as evidence against him on the ground that the material had been acquired through an unconstitutional search and seizure. In response to the motion, the trial judge conducted an evidentiary hearing where it was established that the material in question had been acquired by the State under the following circumstances:

While on routine patrol in Sunnyvale, California, at approximately 2:40 in the morning, Police Officer James Rand stopped an automobile when he observed that one headlight and its license plate light were burned out. Six men were in the vehicle. Joe Alcala and the respondent, Robert Bustamonte, were in the front seat with Joe Gonzales, the driver. Three older men were seated in the rear. When, in response to the policeman’s question, Gonzales could not produce a driver’s license, Officer Rand asked if any of the other five had any evidence of identification. Only Alcala produced a license, and he explained that the car was his brother’s. After the six occupants had stepped out of the car at the officer’s request and after two additional policemen had arrived, Officer Rand asked Alcala if he could search the car. Alcala replied, “Sure, go ahead.” Prior to the search no one was threatened with arrest and, according to Officer Rand’s uncontradicted testimony, it “was all very congenial at this time.” Gonzales testified that Alcala actually helped in the search of the car, by opening the trunk and glove compartment. In Gonzales’ words: “[T]he police officer asked Joe [Alcala], he goes, ‘Does the trunk open?’ And Joe said, ‘Yes.’ He went to the car and got the keys and opened up the trunk.” Wadded up under the left rear seat, the police officers found three checks that had previously been stolen from a car wash.

The trial judge denied the motion to suppress, and the checks in question were admitted in evidence at Bustamonte’s trial. On the basis of this and other evidence he was convicted, and the California Court of Appeal for the First Appellate District affirmed the conviction. The California Supreme Court denied review.

Thereafter, the respondent sought a writ of habeas corpus in a federal district court. It was denied. On appeal, the Court of Appeals for the Ninth Circuit, relying on its prior decisions set aside the District Court’s order. The appellate court reasoned that a consent was a waiver of a person’s Fourth and Fourteenth Amendment rights, and that the State was under an obligation to demonstrate, not only that the consent had been uncoerced, but that it had been given with an understanding that it could be freely and effectively withheld. Consent could not be found, the court held, solely from the absence of coercion and a verbal expression of assent. Since the District Court had not determined that Alcala had known that his consent could have been withheld and that he could have refused to have his vehicle searched, the Court of Appeals vacated the order denying the writ and remanded the case for further proceedings. We granted certiorari to determine whether the Fourth and Fourteenth Amendments require the showing thought necessary by the Court of Appeals.

II

It is important to make it clear at the outset what is not involved in this case. The respondent concedes that a search conducted pursuant to a valid consent is constitutionally permissible. [W]e [have] recognized that a search authorized by consent is wholly valid. And similarly the State concedes that “[w]hen a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.”

The precise question in this case, then, is what must the prosecution prove to demonstrate that a consent was “voluntarily” given.

A

The most extensive judicial exposition of the meaning of “voluntariness” has been developed in those cases in which the Court has had to determine the “voluntariness” of a defendant’s confession for purposes of the Fourteenth Amendment.

Those cases yield no talismanic definition of “voluntariness,” mechanically applicable to the host of situations where the question has arisen. “The notion of ‘voluntariness,’” Mr. Justice Frankfurter once wrote, “is itself an amphibian.” It cannot be taken literally to mean a “knowing” choice. “Except where a person is unconscious or drugged or otherwise lacks capacity for conscious choice, all incriminating statements—even those made under brutal treatment—are ‘voluntary’ in the sense of representing a choice of alternatives. On the other hand, if ‘voluntariness’ incorporates notions of ‘but-for’ cause, the question should be whether the statement would have been made even absent inquiry or other official action. Under such a test, virtually no statement would be voluntary because very few people give incriminating statements in the absence of official action of some kind.” It is thus evident that neither linguistics nor epistemology will provide a ready definition of the meaning of “voluntariness.”

This Court’s decisions reflect a frank recognition that the Constitution requires the sacrifice of neither security nor liberty. The Due Process Clause does not mandate that the police forgo all questioning, or that they be given carte blanche to extract what they can from a suspect. “The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.”

In determining whether a defendant’s will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.¹

B

Similar considerations lead us to agree with the courts of California that the question whether a consent to a search was in fact “voluntary” or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent. As with police questioning, two competing concerns must be accommodated in determining the meaning of a “voluntary” consent—the legitimate need for such searches and the equally important requirement of assuring the absence of coercion.

In situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence. In the present case for example, while the police had reason to stop the car for traffic violations, the State does not contend that there was probable cause to search the vehicle or that the search was incident to a valid arrest of any of the occupants. Yet, the search yielded tangible evidence that served as a basis for a prosecution, and provided some assurance that others, wholly innocent of the crime, were not mistakenly brought to trial. And in those cases where there is probable cause to arrest or search, but where the police lack a warrant, a consent search may still be valuable. If the search is conducted and proves fruitless, that in itself may convince the police that an arrest with its possible stigma and embarrassment is unnecessary, or that a far more extensive search pursuant to a warrant is not justified. In short, a search pursuant to consent may result in considerably less inconvenience for the subject of the search, and, properly conducted, is a constitutionally permissible and wholly legitimate aspect of effective police activity.

But the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting “consent” would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed.

The approach of the Ninth Circuit finds no support in any of our decisions that have attempted to define the meaning of “voluntariness.” Its ruling, that the State must affirmatively prove that the subject of the search knew that he had a right to refuse consent, would, in practice, create serious doubt whether consent searches could continue to be conducted. There might be rare cases where it could be proved from the record that a person in fact affirmatively knew of his right to refuse—such as a case where he announced to the police that if he didn’t sign the consent form, “you [police] are going to get a search warrant;” or a case where by prior experience and training a person had clearly and convincingly demonstrated such knowledge. But more commonly where there was no evidence of any coercion, explicit or implicit, the prosecution would nevertheless be unable to demonstrate that the subject of the search in fact had known of his right to refuse consent.

The very object of the inquiry—the nature of a person’s subjective understanding—underlines the difficulty of the prosecution’s burden under the rule applied by the Court of Appeals in this case. Any defendant who was the subject of a search authorized solely by his consent could effectively frustrate the introduction into evidence of the fruits of that search by simply failing to testify that he in fact knew he could refuse to consent. And the near impossibility of meeting this prosecutorial burden suggests why this Court has never accepted any such litmus-paper test of voluntariness.

One alternative that would go far toward proving that the subject of a search did know he had a right to refuse consent would be to advise him of that right before eliciting his consent. That, however, is a suggestion that has been almost universally repudiated by both federal and state courts, and, we think, rightly so. For it would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning. Consent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway, or in a person’s home or office, and under informal and unstructured conditions. The circumstances that prompt the initial request to search may develop quickly or be a logical extension of investigative police questioning. The police may seek to investigate further suspicious circumstances or to follow up leads developed in questioning persons at the scene of a crime. These situations are a far cry from the structured atmosphere of a trial where, assisted by counsel if he chooses, a defendant is informed of his trial rights. And, while surely a closer question, these situations are still immeasurably, far removed from “custodial interrogation” where, in Miranda v. Arizona[, 384 U.S. 436 (1966)] we found that the Constitution required certain now familiar warnings as a prerequisite to police interrogation. Indeed, in language applicable to the typical consent search, we refused to extend the need for warnings.

Consequently, we cannot accept the position of the Court of Appeals in this case that proof of knowledge of the right to refuse consent is a necessary prerequisite to demonstrating a “voluntary” consent. Rather it is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced. It is this careful sifting of the unique facts and circumstances of each case that is evidenced in our prior decisions involving consent searches.

In short, neither this Court’s prior cases, nor the traditional definition of “voluntariness” requires proof of knowledge of a right to refuse as the sine qua non of an effective consent to a search.

C

It is said, however, that a “consent” is a “waiver” of a person’s rights under the Fourth and Fourteenth Amendments. The argument is that by allowing the police to conduct a search, a person “waives” whatever right he had to prevent the police from searching. It is argued that under the doctrine of Johnson v. Zerbst, 304 U.S. 458 (1938), to establish such a “waiver” the State must demonstrate “an intentional relinquishment or abandonment of a known right or privilege.”

But these standards were enunciated in Johnson in the context of the safeguards of a fair criminal trial. Our cases do not reflect an uncritical demand for a knowing and intelligent waiver in every situation where a person has failed to invoke a constitutional protection. As Mr. Justice Black once observed for the Court: “‘Waiver’ is a vague term used for a great variety of purposes, good and bad, in the law.” With respect to procedural due process, for example, the Court has acknowledged that waiver is possible, while explicitly leaving open the question whether a “knowing and intelligent” waiver need be shown.

The requirement of a “knowing” and “intelligent” waiver was articulated in a case involving the validity of a defendant’s decision to forego a right constitutionally guaranteed to protect a fair trial and the reliability of the truth-determining process. Johnson v. Zerbst dealt with the denial of counsel in a federal criminal trial.

Almost without exception, the requirement of a knowing and intelligent waiver has been applied only to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial. Hence, the standard of a knowing and intelligent waiver has most often been applied to test the validity of a waiver of counsel, either at trial, or upon a guilty plea. The guarantees afforded a criminal defendant at trial also protect him at certain stages before the actual trial, and any alleged waiver must meet the strict standard of an intentional relinquishment of a “known” right. But the “trial” guarantees that have been applied to the “pretrial” stage of the criminal process are similarly designed to protect the fairness of the trial itself.

There is a vast difference between those rights that protect a fair criminal trial and the rights guaranteed under the Fourth Amendment. Nothing, either in the purposes behind requiring a “knowing” and “intelligent” waiver of trial rights, or in the practical application of such a requirement suggests that it ought to be extended to the constitutional guarantee against unreasonable searches and seizures.

The protections of the Fourth Amendment are of a wholly different order, and have nothing whatever to do with promoting the fair ascertainment of truth at a criminal trial. Rather, the Fourth Amendment protects the “security of one’s privacy against arbitrary intrusion by the police ….” The Fourth Amendment “is not an adjunct to the ascertainment of truth.” The guarantees of the Fourth Amendment stand “as a protection of quite different constitutional values—values reflecting the concern of our society for the right of each individual to be let alone.”

Nor can it even be said that a search, as opposed to an eventual trial, is somehow “unfair” if a person consents to a search. While the Fourth and Fourteenth Amendments limit the circumstances under which the police can conduct a search, there is nothing constitutionally suspect in a person’s voluntarily allowing a search. The actual conduct of the search may be precisely the same as if the police had obtained a warrant. And, unlike those constitutional guarantees that protect a defendant at trial, it cannot be said every reasonable presumption ought to be indulged against voluntary relinquishment.

D

Much of what has already been said disposes of the argument that the Court’s decision in the Miranda case requires the conclusion that knowledge of a right to refuse is an indispensable element of a valid consent. The considerations that informed the Court’s holding in Miranda are simply inapplicable in the present case. In Miranda the Court found that the techniques of police questioning and the nature of custodial surroundings produce an inherently coercive situation.

In this case, there is no evidence of any inherently coercive tactics—either from the nature of the police questioning or the environment in which it took place. Indeed, since consent searches will normally occur on a person’s own familiar territory, the specter of incommunicado police interrogation in some remote station house is simply inapposite. There is no reason to believe, under circumstances such as are present here, that the response to a policeman’s question is presumptively coerced; and there is, therefore, no reason to reject the traditional test for determining the voluntariness of a person’s response.

It is also argued that the failure to require the Government to establish knowledge as a prerequisite to a valid consent, will relegate the Fourth Amendment to the special province of “the sophisticated, [the] knowledgeable and the privileged.” We cannot agree. The traditional definition of voluntariness we accept today has always taken into account evidence of minimal schooling, low intelligence, and the lack of any effective warnings to a person of his rights; and the voluntariness of any statement taken under those conditions has been carefully scrutinized to determine whether it was in fact voluntarily given.

E

Our decision today is a narrow one. We hold only that when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. Because the California court followed these principles in affirming the respondent’s conviction, and because the Court of Appeals for the Ninth Circuit in remanding for an evidentiary hearing required more, its judgment must be reversed.

Mr. Justice DOUGLAS, dissenting.

I agree with the Court of Appeals that “verbal assent” to a search is not enough, that the fact that consent was given to the search does not imply that the suspect knew that the alternative of a refusal existed. As that court stated:

“[U]nder many circumstances a reasonable person might read an officer’s ‘May I’ as the courteous expression of a demand backed by force of law.”

[W]hether Alcala knew he had the right to refuse, we do not know. All the Court of Appeals did was to remand the case to the District Court for a finding—and if necessary, a hearing on that issue.

I would let the case go forward on that basis. The long, time-consuming contest in this Court might well wash out. At least we could be assured that, if it came back, we would not be rendering an advisory opinion. Had I voted to grant this petition, I would suggest we dismiss it as improvidently granted. But, being in the minority, I am bound by the Rule of Four.

Mr. Justice BRENNAN, dissenting.

[T]he search of the vehicle can be justified solely on the ground that the owner’s brother gave his consent—that is, that he waived his Fourth Amendment right “to be secure” against an otherwise “unreasonable” search. The Court holds today that an individual can effectively waive this right even though he is totally ignorant of the fact that, in the absence of his consent, such invasions of his privacy would be constitutionally prohibited. It wholly escapes me how our citizens can meaningfully be said to have waived something as precious as a constitutional guarantee without ever being aware of its existence. In my view, the Court’s conclusion is supported neither by “linguistics,” nor by “epistemology,” nor, indeed, by “common sense.” I respectfully dissent.

Mr. Justice MARSHALL, dissenting.

I would have thought that the capacity to choose necessarily depends upon knowledge that there is a choice to be made. But today the Court reaches the curious result that one can choose to relinquish a constitutional right—the right to be free of unreasonable searches—without knowing that he has the alternative of refusing to accede to a police request to search. I cannot agree, and therefore dissent.

I believe that the Court misstates the true issue in this case. That issue is not, as the Court suggests whether the police overbore Alcala’s will in eliciting his consent, but rather, whether a simple statement of assent to search, without more, should be sufficient to permit the police to search and thus act as a relinquishment of Alcala’s constitutional right to exclude the police. This Court has always scrutinized with great care claims that a person has forgone the opportunity to assert constitutional rights. I see no reason to give the claim that a person consented to a search any less rigorous scrutiny. Every case in this Court involving this kind of search has heretofore spoken of consent as a waiver. Perhaps one skilled in linguistics or epistemology can disregard those comments, but I find them hard to ignore.

The Court assumes that the issue in this case is: what are the standards by which courts are to determine that consent is voluntarily given? It then imports into the law of search and seizure standards developed to decide entirely different questions about coerced confessions.

In contrast, this case deals not with “coercion,” but with “consent,” a subtly different concept to which different standards have been applied in the past. Freedom from coercion is a substantive right, guaranteed by the Fifth and Fourteenth Amendments. Consent, however, is a mechanism by which substantive requirements, otherwise applicable, are avoided. In the context of the Fourth Amendment, the relevant substantive requirements are that searches be conducted only after evidence justifying them has been submitted to an impartial magistrate for a determination of probable cause. There are, of course, exceptions to these requirements based on a variety of exigent circumstances that make it impractical to invalidate a search simply because the police failed to get a warrant. But none of the exceptions relating to the overriding needs of law enforcement are applicable when a search is justified solely by consent. On the contrary, the needs of law enforcement are significantly more attenuated, for probable cause to search may be lacking but a search permitted if the subject’s consent has been obtained. Thus, consent searches are permitted, not because such an exception to the requirements of probable cause and warrant is essential to proper law enforcement, but because we permit our citizens to choose whether or not they wish to exercise their constitutional rights. Our prior decisions simply do not support the view that a meaningful choice has been made solely because no coercion was brought to bear on the subject.

My approach to the case is straight-forward and, to me, obviously required by the notion of consent as a relinquishment of Fourth Amendment rights. I am at a loss to understand why consent “cannot be taken literally to mean a ‘knowing’ choice.” In fact, I have difficulty in comprehending how a decision made without knowledge of available alternatives can be treated as a choice at all.

I must conclude with some reluctance that when the Court speaks of practicality, what it really is talking of is the continued ability of the police to capitalize on the ignorance of citizens so as to accomplish by subterfuge what they could not achieve by relying only on the knowing relinquishment of constitutional rights. Of course it would be “practical” for the police to ignore the commands of the Fourth Amendment, if by practicality we mean that more criminals will be apprehended, even though the constitutional rights of innocent people also go by the board. But such a practical advantage is achieved only at the cost of permitting the police to disregard the limitations that the Constitution places on their behavior, a cost that a constitutional democracy cannot long absorb.

Notes, Comments, and Questions

The Court has affirmed the principles of Schneckloth v. Bustamonte repeatedly. The most prominent cases have involved searches aboard public buses.

The Court addressed consent searches on Greyhound buses in United States v. Drayton, 536 U.S. 194 (2002). There, the Court held that police officers could board a bus and ask for permission to search the property of passengers, as long as under the totality of the circumstances the officers obtained valid consent. The majority reiterated that officers need not advise passengers of their right to leave or to refuse consent. Previously, in Florida v. Bostick, 501 U.S.429 (1991), the Court held that officers may approach bus passengers at random to ask questions and request their consent to searches, provided “a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” See also Ohio v. Robinette, 519 U.S. 33 (1996) (rejecting rule created by Ohio judges that required officers at traffic stops to state “‘At this time you legally are free to go’ or [] words of similar import” before initiating extra questioning or seeking consent to search).

Consider the following scenarios:

A police officer assigned to be a “school resource officer” at a high school confronts a student who has been sent to the principal’s office for disrespectful classroom behavior. The officer says, “You must be on drugs to act so stupid. Let me see what’s in that backpack, and then you can go see the principal.” If the student hands over the backpack, does the officer have valid consent to search it? Why or why not?

A police officer has probable cause to believe that drugs are being stored at a certain house. The officer, without a warrant, knocks on the door. When someone answers, the officer says, “I could get a warrant to search this house for drugs, but I’d rather save myself the trouble. If you let me look around the house and I don’t find anything, I’ll move on to other business. But if you refuse, I’ll be back soon with a warrant, and my partner and I will search this place from top to bottom.” If the person at the door admits the officer inside, does the officer have valid consent to enter and search the house? Why or why not?

Now imagine that two people are present when police request consent to enter a home. One person consents while the other says, “Stay out!” Consent or no consent? Why or why not? The Court addresses this issue in the next case.

Supreme Court of the United States

Georgia v. Scott Fitz Randolph

Decided March 22, 2006 – 547 U.S. 103

Justice SOUTER delivered the opinion of the Court.

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. The question here is whether such an evidentiary seizure is likewise lawful with the permission of one occupant when the other, who later seeks to suppress the evidence, is present at the scene and expressly refuses to consent. We hold that, in the circumstances here at issue, a physically present co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him.

I

Respondent Scott Randolph and his wife, Janet, separated in late May 2001, when she left the marital residence in Americus, Georgia, and went to stay with her parents in Canada, taking their son and some belongings. In July, she returned to the Americus house with the child, though the record does not reveal whether her object was reconciliation or retrieval of remaining possessions.

On the morning of July 6, she complained to the police that after a domestic dispute her husband took their son away, and when officers reached the house she told them that her husband was a cocaine user whose habit had caused financial troubles. She mentioned the marital problems and said that she and their son had only recently returned after a stay of several weeks with her parents. Shortly after the police arrived, Scott Randolph returned and explained that he had removed the child to a neighbor’s house out of concern that his wife might take the boy out of the country again; he denied cocaine use, and countered that it was in fact his wife who abused drugs and alcohol.

One of the officers, Sergeant Murray, went with Janet Randolph to reclaim the child, and when they returned she not only renewed her complaints about her husband’s drug use, but also volunteered that there were “‘items of drug evidence’” in the house. Sergeant Murray asked Scott Randolph for permission to search the house, which he unequivocally refused.

The sergeant turned to Janet Randolph for consent to search, which she readily gave. She led the officer upstairs to a bedroom that she identified as Scott’s, where the sergeant noticed a section of a drinking straw with a powdery residue he suspected was cocaine. He then left the house to get an evidence bag from his car and to call the district attorney’s office, which instructed him to stop the search and apply for a warrant. When Sergeant Murray returned to the house, Janet Randolph withdrew her consent. The police took the straw to the police station, along with the Randolphs. After getting a search warrant, they returned to the house and seized further evidence of drug use, on the basis of which Scott Randolph was indicted for possession of cocaine.

He moved to suppress the evidence, as products of a warrantless search of his house unauthorized by his wife’s consent over his express refusal. The trial court denied the motion, ruling that Janet Randolph had common authority to consent to the search.

The Court of Appeals of Georgia reversed and was itself sustained by the State Supreme Court, principally on the ground that “the consent to conduct a warrantless search of a residence given by one occupant is not valid in the face of the refusal of another occupant who is physically present at the scene to permit a warrantless search.” The Supreme Court of Georgia acknowledged this Court’s holding in Matlock [, 415 U.S. 164 (1974)] 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” and found Matlock distinguishable just because Scott Randolph was not “absent” from the colloquy on which the police relied for consent to make the search. The State Supreme Court stressed that the officers in Matlock had not been “faced with the physical presence of joint occupants, with one consenting to the search and the other objecting.” It held that an individual who chooses to live with another assumes a risk no greater than “‘an inability to control access to the premises during [his] absence,’” and does not contemplate that his objection to a request to search commonly shared premises, if made, will be overlooked.

We granted certiorari to resolve a split of authority on whether one occupant may give law enforcement effective consent to search shared premises, as against a co-tenant who is present and states a refusal to permit the search. We now affirm.

II

To the Fourth Amendment rule ordinarily prohibiting the warrantless entry of a person’s house as unreasonable per se, one “jealously and carefully drawn” exception recognizes the validity of searches with the voluntary consent of an individual possessing authority. That person might be the householder against whom evidence is sought or a fellow occupant who shares common authority over property, when the suspect is absent, and the exception for consent extends even to entries and searches with the permission of a co-occupant whom the police reasonably, but erroneously, believe to possess shared authority as an occupant. None of our co-occupant consent-to-search cases, however, has presented the further fact of a second occupant physically present and refusing permission to search, and later moving to suppress evidence so obtained. The significance of such a refusal turns on the underpinnings of the co-occupant consent rule, as recognized since Matlock.

A

The defendant in that case was arrested in the yard of a house where he lived with a Mrs. Graff and several of her relatives, and was detained in a squad car parked nearby. When the police went to the door, Mrs. Graff admitted them and consented to a search of the house. In resolving the defendant’s objection to use of the evidence taken in the warrantless search, we said 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.”

The constant element in assessing Fourth Amendment reasonableness in the consent cases, then, is the great significance given to widely shared social expectations, which are naturally enough influenced by the law of property, but not controlled by its rules. Matlock accordingly not only holds that a solitary co-inhabitant may sometimes consent to a search of shared premises, but stands for the proposition that the reasonableness of such a search is in significant part a function of commonly held understanding about the authority that co-inhabitants may exercise in ways that affect each other’s interests.

B

Matlock’s example of common understanding is readily apparent. When someone comes to the door of a domestic dwelling with a baby at her hip, as Mrs. Graff did, she shows that she belongs there, and that fact standing alone is enough to tell a law enforcement officer or any other visitor that if she occupies the place along with others, she probably lives there subject to the assumption tenants usually make about their common authority when they share quarters. They understand that any one of them may admit visitors, with the consequence that a guest obnoxious to one may nevertheless be admitted in his absence by another. As Matlock put it, shared tenancy is understood to include an “assumption of risk,” on which police officers are entitled to rely, and although some group living together might make an exceptional arrangement that no one could admit a guest without the agreement of all, the chance of such an eccentric scheme is too remote to expect visitors to investigate a particular household’s rules before accepting an invitation to come in. So, Matlock relied on what was usual and placed no burden on the police to eliminate the possibility of atypical arrangements, in the absence of reason to doubt that the regular scheme was in place.

It is also easy to imagine different facts on which, if known, no common authority could sensibly be suspected. A person on the scene who identifies himself, say, as a landlord or a hotel manager calls up no customary understanding of authority to admit guests without the consent of the current occupant. A tenant in the ordinary course does not take rented premises subject to any formal or informal agreement that the landlord may let visitors into the dwelling, and a hotel guest customarily has no reason to expect the manager to allow anyone but his own employees into his room. In these circumstances, neither state-law property rights, nor common contractual arrangements, nor any other source points to a common understanding of authority to admit third parties generally without the consent of a person occupying the premises. And when it comes to searching through bureau drawers, there will be instances in which even a person clearly belonging on premises as an occupant may lack any perceived authority to consent; “a child of eight might well be considered to have the power to consent to the police crossing the threshold into that part of the house where any caller, such as a pollster or salesman, might well be admitted,” but no one would reasonably expect such a child to be in a position to authorize anyone to rummage through his parents’ bedroom.

C

To begin with, it is fair to say that a caller standing at the door of shared premises 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.” Without some very good reason, no sensible person would go inside under those conditions.

Unless the people living together fall within some recognized hierarchy, like a household of parent and child or barracks housing military personnel of different grades, there is no societal understanding of superior and inferior, a fact reflected in a standard formulation of domestic property law, that “[e]ach cotenant … has the right to use and enjoy the entire property as if he or she were the sole owner, limited only by the same right in the other cotenants.” [T]here is no common understanding that one co-tenant generally has a right or authority to prevail over the express wishes of another, whether the issue is the color of the curtains or invitations to outsiders.

D

Since the co-tenant wishing to open the door to a third party 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 in the absence of any consent at all. Accordingly, in the balancing of competing individual and governmental interests entailed by the bar to unreasonable searches, the cooperative occupant’s invitation adds nothing to the government’s side to counter the force of an objecting individual’s claim to security against the government’s intrusion into his dwelling place.

E

There are two loose ends, the first being the explanation given in Matlock for the constitutional sufficiency of a co-tenant’s consent to enter and search: it “rests … on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right ….” If Matlock’s co-tenant is giving permission “in his own right,” how can his “own right” be eliminated by another tenant’s objection? The answer appears in the very footnote from which the quoted statement is taken: the “right” to admit the police to which Matlock refers is not an enduring and enforceable ownership right as understood by the private law of property, but is instead the authority recognized by customary social usage as having a substantial bearing on Fourth Amendment reasonableness in specific circumstances. Thus, to ask whether the consenting tenant has the right to admit the police when a physically present fellow tenant objects is not to question whether some property right may be divested by the mere objection of another. It is, rather, the question whether customary social understanding accords the consenting tenant authority powerful enough to prevail over the co-tenant’s objection. The Matlock Court did not purport to answer this question.

The second loose end is the significance of Matlock and Rodriguez after today’s decision.² Although the Matlock defendant was not present with the opportunity to object, he was in a squad car not far away; the Rodriguez defendant was actually asleep in the apartment, and the police might have roused him with a knock on the door before they entered with only the consent of an apparent co-tenant. If those cases are not to be undercut by today’s holding, we have to admit that we are drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.

This is the line we draw, and we think the formalism is justified. So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant’s permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant’s contrary indication when he expresses it. For the very reason that Rodriguez held it would be unjustifiably impractical to require the police to take affirmative steps to confirm the actual authority of a consenting individual whose authority was apparent, we think it would needlessly limit the capacity of the police to respond to ostensibly legitimate opportunities in the field if we were to hold that reasonableness required the police to take affirmative steps to find a potentially objecting co-tenant before acting on the permission they had already received. There is no ready reason to believe that efforts to invite a refusal would make a difference in many cases, whereas every co-tenant consent case would turn into a test about the adequacy of the police’s efforts to consult with a potential objector. Better to accept the formalism of distinguishing Matlock from this case than to impose a requirement, time consuming in the field and in the courtroom, with no apparent systemic justification. The pragmatic decision to accept the simplicity of this line is, moreover, supported by the substantial number of instances in which suspects who are asked for permission to search actually consent, albeit imprudently, a fact that undercuts any argument that the police should try to locate a suspected inhabitant because his denial of consent would be a foregone conclusion.

III

This case invites a straightforward application of the rule that a physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant. Scott Randolph’s refusal is clear, and nothing in the record justifies the search on grounds independent of Janet Randolph’s consent. The State does not argue that she gave any indication to the police of a need for protection inside the house that might have justified entry into the portion of the premises where the police found the powdery straw (which, if lawfully seized, could have been used when attempting to establish probable cause for the warrant issued later). Nor does the State claim that the entry and search should be upheld under the rubric of exigent circumstances, owing to some apprehension by the police officers that Scott Randolph would destroy evidence of drug use before any warrant could be obtained.

The judgment of the Supreme Court of Georgia is therefore affirmed.

Chief Justice ROBERTS, with whom Justice SCALIA joins, dissenting.

The Court creates constitutional law by surmising what is typical when a social guest encounters an entirely atypical situation. The rule the majority fashions does not implement the high office of the Fourth Amendment to protect privacy, 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. And 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 nonconsenting abuser.

The correct approach to the question presented is clearly mapped out in our precedents: The Fourth Amendment protects privacy. If an individual shares information, papers, or places with another, he assumes the risk that the other person will in turn share access to that information or those papers or places with the government. And just as an individual who has shared illegal plans or incriminating documents with another cannot interpose an objection when that other person turns the information over to the government, just because the individual happens to be present at the time, so too someone who shares a place with another cannot interpose an objection when that person decides to grant access to the police, simply because the objecting individual happens to be present.

A warrantless search is reasonable if police obtain the voluntary consent of a person authorized to give it. Co-occupants have “assumed the risk that one of their number might permit [a] common area to be searched.” Just as Mrs. Randolph could walk upstairs, come down, and turn her husband’s cocaine straw over to the police, she can consent to police entry and search of what is, after all, her home, too.

* * *

As the Randolph majority noted, police may rely on the “consent of an occupant who shares, or is reasonably believed to share, authority over the area in common.” In other words, warrantless entry is valid—that is, reasonable—“when based upon the consent of a third party whom the police, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not do so.” Illinois v. Rodriguez, 497 U.S. 177 (1990) (emphasis added).

In Randolph, the Court decided that when one occupant consents to a search and another occupant concurrently refuses consent, the refusal gets priority. A clever student might ask, what happens if the occupant who refuses consent somehow disappears from the scene? If he takes a short walk, for example, or is rushed to the hospital after suffering a heart attack, does his refusal keep working?

Supreme Court of the United States

Walter Fernandez v. California

Decided Feb. 25, 2014 – 571 U.S. 292

Justice ALITO delivered the opinion of the Court.

Our cases firmly establish that police officers may search jointly occupied premises if one of the occupants consents. In Georgia v. Randolph we recognized a narrow exception to this rule, holding that the consent of one occupant is insufficient when another occupant is present and objects to the search. In this case, we consider whether Randolph applies if the objecting occupant is absent when another occupant consents. Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present. We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared.

I

A

The events involved in this case occurred in Los Angeles in October 2009. After observing Abel Lopez cash a check, petitioner Walter Fernandez approached Lopez and asked about the neighborhood in which he lived. When Lopez responded that he was from Mexico, Fernandez laughed and told Lopez that he was in territory ruled by the “D.F.S.,” i.e., the “Drifters” gang. Petitioner then pulled out a knife and pointed it at Lopez’ chest. Lopez raised his hand in self-defense, and petitioner cut him on the wrist.

Lopez ran from the scene and called 911 for help, but petitioner whistled, and four men emerged from a nearby apartment building and attacked Lopez. After knocking him to the ground, they hit and kicked him and took his cell phone and his wallet, which contained $400 in cash.

A police dispatch reported the incident and mentioned the possibility of gang involvement, and two Los Angeles police officers, Detective Clark and Officer Cirrito, drove to an alley frequented by members of the Drifters. A man who appeared scared walked by the officers and said: “‘[T]he guy is in the apartment.’” The officers then observed a man run through the alley and into the building to which the man was pointing. A minute or two later, the officers heard sounds of screaming and fighting coming from that building.

After backup arrived, the officers knocked on the door of the apartment unit from which the screams had been heard. Roxanne Rojas answered the door. She was holding a baby and appeared to be crying. Her face was red, and she had a large bump on her nose. The officers also saw blood on her shirt and hand from what appeared to be a fresh injury. Rojas told the police that she had been in a fight. Officer Cirrito asked if anyone else was in the apartment, and Rojas said that her 4–year–old son was the only other person present.

After Officer Cirrito asked Rojas to step out of the apartment so that he could conduct a protective sweep, petitioner appeared at the door wearing only boxer shorts. Apparently agitated, petitioner stepped forward and said, “‘You don’t have any right to come in here. I know my rights.’” Suspecting that petitioner had assaulted Rojas, the officers removed him from the apartment and then placed him under arrest. Lopez identified petitioner as his initial attacker, and petitioner was taken to the police station for booking.

Approximately one hour after petitioner’s arrest, Detective Clark returned to the apartment and informed Rojas that petitioner had been arrested. Detective Clark requested and received both oral and written consent from Rojas to search the premises. In the apartment, the police found Drifters gang paraphernalia, a butterfly knife, clothing worn by the robbery suspect, and ammunition. Rojas’ young son also showed the officers where petitioner had hidden a sawed-off shotgun.

B

Petitioner was charged with robbery, infliction of corporal injury on a spouse, cohabitant, or child’s parent, possession of a firearm by a felon, possession of a short-barreled shotgun, and felony possession of ammunition.

Before trial, petitioner moved to suppress the evidence found in the apartment, but after a hearing, the court denied the motion. Petitioner then pleaded nolo contendere to the firearms and ammunition charges. On the remaining counts—for robbery and infliction of corporal injury—he went to trial and was found guilty by a jury. The court sentenced him to 14 years of imprisonment.

The California Court of Appeal affirmed. Because Randolph did not overturn our prior decisions recognizing that an occupant may give effective consent to search a shared residence, the court agreed with the majority of the federal circuits that an objecting occupant’s physical presence is “indispensable to the decision in Randolph.” And because petitioner was not present when Rojas consented, the court held that petitioner’s suppression motion had been properly denied.

The California Supreme Court denied the petition for review, and we granted certiorari.

II

A

“Consent searches are part of the standard investigatory techniques of law enforcement agencies” and are “a constitutionally permissible and wholly legitimate aspect of effective police activity.” It would be unreasonable—indeed, absurd—to require police officers to obtain a warrant when the sole owner or occupant of a house or apartment voluntarily consents to a search. The owner of a home has a right to allow others to enter and examine the premises, and there is no reason why the owner should not be permitted to extend this same privilege to police officers if that is the owner’s choice. Where the owner believes that he or she is under suspicion, the owner may want the police to search the premises so that their suspicions are dispelled. This may be particularly important where the owner has a strong interest in the apprehension of the perpetrator of a crime and believes that the suspicions of the police are deflecting the course of their investigation. An owner may want the police to search even where they lack probable cause, and if a warrant were always required, this could not be done. And even where the police could establish probable cause, requiring a warrant despite the owner’s consent would needlessly inconvenience everyone involved—not only the officers and the magistrate but also the occupant of the premises, who would generally either be compelled or would feel a need to stay until the search was completed.

B

While consent by one resident of jointly occupied premises is generally sufficient to justify a warrantless search, we recognized a narrow exception to this rule in Georgia v. Randolph. The Court reiterated the proposition that a person who shares a residence with others assumes the risk that “any one of them may admit visitors, with the consequence that a guest obnoxious to one may nevertheless be admitted in his absence by another.” But the Court held that “a physically present inhabitant’s express refusal of consent to a police search [of his home] is dispositive as to him, regardless of the consent of a fellow occupant.” The Court’s opinion went to great lengths to make clear that its holding was limited to situations in which the objecting occupant is present.

III

In this case, petitioner was not present when Rojas consented, but petitioner still contends that Randolph is controlling. He advances two main arguments. First, he claims that his absence should not matter since he was absent only because the police had taken him away. Second, he maintains that it was sufficient that he objected to the search while he was still present. Such an objection, he says, should remain in effect until the objecting party “no longer wishes to keep the police out of his home.” Neither of these arguments is sound.

We first consider the argument that the presence of the objecting occupant is not necessary when the police are responsible for his absence. In Randolph, the Court suggested in dictum that consent by one occupant might not be sufficient if “there is evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection.” We do not believe the statement should be read to suggest that improper motive may invalidate objectively justified removal. Hence, it does not govern here.

This brings us to petitioner’s second argument, viz., that his objection, made at the threshold of the premises that the police wanted to search, remained effective until he changed his mind and withdrew his objection. This argument is inconsistent with Randolph’s reasoning in at least two important ways. First, the argument cannot be squared with the “widely shared social expectations” or “customary social usage” upon which the Randolph holding was based.

It seems obvious that the calculus of this hypothetical caller would likely be quite different if the objecting tenant was not standing at the door. When the objecting occupant is standing at the threshold saying “stay out,” a friend or visitor invited to enter by another occupant can expect at best an uncomfortable scene and at worst violence if he or she tries to brush past the objector. But when the objector is not on the scene (and especially when it is known that the objector will not return during the course of the visit), the friend or visitor is much more likely to accept the invitation to enter. Thus, petitioner’s argument is inconsistent with Randolph’s reasoning.

Second, petitioner’s argument would create the very sort of practical complications that Randolph sought to avoid. The Randolph Court recognized that it was adopting a “formalis[tic]” rule, but it did so in the interests of “simple clarity” and administrability.

The rule that petitioner would have us adopt would produce a plethora of practical problems. For one thing, there is the question of duration. Petitioner argues that an objection, once made, should last until it is withdrawn by the objector, but such a rule would be unreasonable. Suppose that a husband and wife owned a house as joint tenants and that the husband, after objecting to a search of the house, was convicted and sentenced to a 15–year prison term. Under petitioner’s proposed rule, the wife would be unable to consent to a search of the house 10 years after the date on which her husband objected. We refuse to stretch Randolph to such strange lengths.

Nor are we persuaded to hold that an objection lasts for a “reasonable” time. “[I]t is certainly unusual for this Court to set forth precise time limits governing police action” and what interval of time would be reasonable in this context? A week? A month? A year? Ten years?

Petitioner’s rule would also require the police and ultimately the courts to determine whether, after the passage of time, an objector still had “common authority” over the premises, and this would often be a tricky question. Suppose that an incarcerated objector and a consenting co-occupant were joint tenants on a lease. If the objector, after incarceration, stopped paying rent, would he still have “common authority,” and would his objection retain its force? Would it be enough that his name remained on the lease? Would the result be different if the objecting and consenting lessees had an oral month-to-month tenancy?

Another problem concerns the procedure needed to register a continuing objection. Would it be necessary for an occupant to object while police officers are at the door? If presence at the time of consent is not needed, would an occupant have to be present at the premises when the objection was made? Could an objection be made pre-emptively? Could a person like Scott Randolph, suspecting that his estranged wife might invite the police to view his drug stash and paraphernalia, register an objection in advance? Could this be done by posting a sign in front of the house? Could a standing objection be registered by serving notice on the chief of police?

Finally, there is the question of the particular law enforcement officers who would be bound by an objection. Would this set include just the officers who were present when the objection was made? Would it also apply to other officers working on the same investigation? Would it extend to officers who were unaware of the objection? How about officers assigned to different but arguably related cases? Would it be limited by law enforcement agency?

If Randolph is taken at its word—that it applies only when the objector is standing in the door saying “stay out” when officers propose to make a consent search—all of these problems disappear.

Putting the exception the Court adopted in Randolph to one side, the lawful occupant of a house or apartment should have the right to invite the police to enter the dwelling and conduct a search. Any other rule would trample on the rights of the occupant who is willing to consent. Such an occupant may want the police to search in order to dispel “suspicion raised by sharing quarters with a criminal.” And an occupant may want the police to conduct a thorough search so that any dangerous contraband can be found and removed. In this case, for example, the search resulted in the discovery and removal of a sawed-off shotgun to which Rojas’ 4–year–old son had access.

Denying someone in Rojas’ position the right to allow the police to enter her home would also show disrespect for her independence. Having beaten Rojas, petitioner would bar her from controlling access to her own home until such time as he chose to relent. The Fourth Amendment does not give him that power.

The judgment of the California Court of Appeal is affirmed.

Justice GINSBURG, with whom Justice SOTOMAYOR and Justice KAGAN join, dissenting.

This case calls for a straightforward application of Randolph. The police officers in Randolph were confronted with a scenario closely resembling the situation presented here. After Walter Fernandez, while physically present at his home, rebuffed the officers’ request to come in, the police removed him from the premises and then arrested him, albeit with cause to believe he had assaulted his cohabitant, Roxanne Rojas. At the time of the arrest, Rojas said nothing to contradict Fernandez’ refusal. About an hour later, however, and with no attempt to obtain a search warrant, the police returned to the apartment and prevailed upon Rojas to sign a consent form authorizing search of the premises.

In this case, the police could readily have obtained a warrant to search the shared residence. The Court does not dispute this, but instead disparages the warrant requirement as inconvenient, burdensome, entailing delay “[e]ven with modern technological advances.”

Although the police have probable cause and could obtain a warrant with dispatch, if they can gain the consent of someone other than the suspect, why should the law insist on the formality of a warrant? Because the Framers saw the neutral magistrate as an essential part of the criminal process shielding all of us, good or bad, saint or sinner, from unchecked police activity.

I would honor the Fourth Amendment’s warrant requirement and hold that Fernandez’ objection to the search did not become null upon his arrest and removal from the scene. “There is every reason to conclude that securing a warrant was entirely feasible in this case, and no reason to contract the Fourth Amendment’s dominion.”

Notes, Comments, and Questions

Justice Souter, who wrote for the majority in Randolph, retired before Fernandez was decided. In addition, Justice Kennedy, who voted with the Randolph majority, supported the Fernandez majority in its limitation of the holding of Randolph to its unusual facts. Justice Breyer, who concurred with the Court’s judgement in Randolph but did not endorse all of the majority’s reasoning, also joined Justice Alito’s majority opinion in Fernandez. In short, while Randolph remains good law, its reasoning may not have support from a current majority of the Court, and its holding is unlikely to be applied to new fact patterns.

Beyond the somewhat esoteric questions presented by Randolph and Fernandez, the broader issue of consent inspires intense disagreements. In particular, dissenting Justices question whether people can really “terminate encounters” with police officers as easily as majority opinions seems to suggest, and they argue that refusing consent is not always practical (or even possible), particularly among portions of the populations already uneasy with police. Observers note that gender, among other factors, affects whether one has the confidence to deny consent. See David K. Kessler, Free to Leave? An Empirical Look at the Fourth Amendment’s Seizure Standard, 99 J. Crim L. & Criminology 51 (2009) (reporting on random survey of Boston residents concerning sidewalks and buses, finding that “women and young people feel less free to leave than other groups”).

On the other hand, robust cooperation with police is essential to the prevention and detection of crime. If police needed a warrant every time they searched a car, bag, or house, investigations would be slowed considerably. This reality encourages Justices to avoid placing high hurdles in the path of officers who seek consent from members of the public.

The Authority of Co-Occupants and Co-Owners to Consent to Searches

Students, generally familiar with shared housing, frequently ask about the scope of authority possessed by a co-occupant to consent to searches of shared living quarters. In particular, when two or more students share a common living room and kitchen yet have individual bedrooms, can one resident of a shared apartment allow police to search the entire premises? The answer is that residents may authorize searches of areas over which they have control, whether sole control or shared control. Accordingly, in the apartment described above, a resident could permit police to search the living room, the kitchen, and her own personal bedroom, but she would not have authority to authorize searches of someone else’s bedroom.

The same principle applies to items that are shared or are lent by an owner to another person. Someone permitted to use and carry a backpack—whether the sole owner, a co-owner, or a borrower—may authorize police to search the bag.

Recall that police can rely on apparent authority—a search is reasonable as long as officers reasonably believe they receive valid consent. Nonetheless, officers should be careful when entering shared premises with consent to learn what areas are controlled by the consenting resident.