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Georgia v. Randolph and Consent to Search One’s Home

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9 Responses

  1. Orin Kerr says:

    Dan,

    In the framework of my “Four Models” draft, you have bypassed the norms model (Souter) and the privacy model (Roberts) by applying the consequences model.

    Given that, I’m curious — do you think Matlock was correctly decided?

  2. Yes, to some extent. To the extent to which the police in good faith are at a house, have a basis for entering and searching, and believe that the person at the door has authority to allow the cops to enter, yes. [In the blockquote above from my earlier post, I explain my rationale.] The issue that I haven’t thought about is the merit of a rule in which the cops ask the person at the door: “Is anybody else home who has authority over these premises? Can you please call him/her to the door?” This might be a good idea (1) for safety purposes; (2) to ensure that all folks consent. But there does come a point when obtaining the consent of people not present becomes impractical.

  3. Marty Lederman says:

    Orin: Of course Matlock was correctly decided, because a caller standing at the door of shared premises would have complete confidence that

    one occupant’’s invitation was a sufficiently good reason to enter when the caller had previosuly confined the fellow tenant to custody in a parked police car.” Without some very good reason, no sensible person would fail to go inside once having bothered with detaining the suspect in a police car, unbeknownest to the occupant making the invitation.
    ;-)

    I think it’s fair to say that this Court would have decided Matlock the other way — which makes this the rare and notable instance in which this Court is more pro-defendant than was the early-1970′s Court.

    But of course, I would say that, because I assured Tom G. (Randolph’s counsel) and anyone else who would listen, that reversal was a sure bet in light of Matlock.

  4. Andrew says:

    Unfortunately, the three little pigs scenario may not be applicable. You may have a wolf and a sheep in the house, and the wolf refuses entry to a pig.

    My point being that wives are often at a disadvantage in relation to their husbands, and a friendly neighborhood policeman can help a wife to confront the husband. It seems important to bear in mind that the wife has an important right here. She has a right to live in a house free of illicit drugs, and a right to raise her children in a lawful environment. That right should not be disparaged.

    Justice Breyer’s opinion stated that the “totality of the circumstances” should be considered in order to determine whether the Constitution allows a wife to invite a policeman indoors over the objections of her husband and without a warrant. How refreshing it would be if the Court would acknowledge a critical element in the “totality of the circumstances”: local trespass law. Does local trespass law allow a wife to hire a private detective, and invite him indoors over the objection of her husband? Usually local law does allow that. If so, isn’t it clearly unreasonable to forbid poor women the same opportunity to have the law enforced in their households, even though poor women cannot afford a private detective?

    We hear all the time that SCOTUS shouldn’t interpret the Constitution based on foreign law. Well, how about local law? Doesn’t that count for anything?

    And another thing. The majority in the Randolph case thought the search was unreasonable, and the minority thought it was reasonable. Does that mean that the majority was calling the minority “unreasonable”? Why didn’t Justice Souter come right out and say so? If he cannot bring himself to do so, then I don’t think he really has standing to call the police and state of Georgia unreasonable.

  5. Andrew says:

    Gee, I didn’t mean to kill the thread.

  6. Frank says:

    Do you think the case has any implications for “digital privacy”? This article suggests so:

    http://www.wired.com/news/columns/1,70520-0.html

    but in such hedged terms that it’s not very helpful.

  7. l says:

    hello i read your article and i can relate to it i dont know my rights i read the article but my husband was charged money laundry and drugs i sighned a consent for to search my home not knowing i can refuse i was scare and i sighn they seized some of my property to the last dollar in my purse left in the house with 2 girls one severly handicap and with no car my daughter is under medication and at the moment they were there i felt that i may need to take her to hospital and only to find out vechiles were gone they dint even tell me,this happen march 27 2006 again i dont know my rights i cant afford a lawyer im working and trying to sale my house before i lose it i cant keep up with payments 2 marshalls came to my house trying cut a deal they want to know were my husband is they warned that if they catch anywere near i would be in trouble too can u tell if i have any rights by the way the house is under my name i would appreciate any information.i can swear that i heard them say “we have a warrant to searh your u need to signe here first to search for illegal drugs,im a mess i feel like virus to society ,i know there still following me orande they watch my house and anyone that comes near im afraid i may lose my job because of there sudden needs to talk to be they have only come once since the incident but im afraid they will come back the threaten to talk to friends and family co workers everyone and that scares me

  8. george says:

    My case is a little different, but not much. The police pulled me over in my neighborhood, without a warrant, asking me for consent. After refusal, I was detained and kept away from my house. The police then called my house, told my wife I was in a car accident in order to get her away from the house, the pulled her over and handcuffed her, drove her around under she consented. My understanding that one has to be present, but I was asked first and then kept away from my house; which is in my name, not hers. But the other part is the police can’t detain a person away in order to get a consent.

    I would really love information from all knowledgeable persons. They are trying

  9. George says:

    I believe I have a potential civil lawsuit against the governmental agencies for violating my rights under this ruling