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Who Can Consent to Search (podcast transcript)

Good afternoon, my name is John Besselman.  I am a Branch Chief in the Legal Division, Federal Law Enforcement Training Center.  Welcome to Podcast number one in which we will be discussing Georgia vs. Randolph, a Supreme Court case decided March 22nd of this year.  I am sitting here with Tim Miller, a Senior Instructor in Legal Division.  Hello, Tim.

Miller:  Sir, how are you?

Besselman:  Can you tell us a little about yourself, Tim?

Miller:  Well sir, I’ve been a Senior Instructor within the Legal Division for almost two years now.

Besselman:  As far as your duties here, we teach a lot of 4th Amendment, don’t we?

Miller:  Yes sir, we do.

Besselman:  And, in the process of doing that, can you tell the folks what we teach on the 4th Amendment as it relates to consent?

Miller:  Well, the 4th Amendment protects people from unreasonable searches and seizures.  I tell my students that the 4th Amendment is triggered by a government intrusion into a place where somebody has a reasonable expectation of privacy.  Now, once the 4th Amendment is triggered, the search -- the following search must be reasonable.  To be reasonable, courts like to see agents get judicial permission, or a search warrant, before going inside this place. Warrantless searches and seizures are per se unreasonable.  But again, under the 4th Amendment the operative word is always reasonableness. Consent is a reasonable exception to the warrant requirement. With voluntary consent from someone who has actual or apparent authority over the place to be searched, agents do not need probable cause or a warrant.  Now, a couple of things about consent.  First the consent has to be voluntary.  The person giving the consent has to voluntarily consent.  Consent, well, it’s determined from the totality of the facts and circumstances.  Looking at a person’s age, his education; is he under the influence of narcotics or alcohol?  And finally, you know, was the person told that he had the right to refuse consent?  And then finally, the consent has to be given by someone with either actual or apparent authority over the place to be searched. I mean, actual authority: does the person actually own or control the place to be searched?  For example, you own your home; you can obviously consent to a search of your home.  Or, maybe two people might share a place where there is a reasonable expectation of privacy, a husband and wife.  Either the husband or the wife could probably consent to a search of their home.

Besselman:  Now, actually, co-tenancy is the issue involved in Georgia vs. Randolph.  Could you tell us a little bit about the fact pattern of that case?

Miller:  Yes sir, I can.  The -- in this case, the issue really became this.  You’ve got two people occupying a home.  One person consents to a search while the other one does not.  The facts are really kind of simple.  You got a husband and wife that shared a house.  This husband and wife, they’re in a child custody dispute.  The police were called to the house.  The wife told the police there was drug evidence inside the house and consented to a search.  Now, her husband was also present and the husband adamantly refuses any consent.  The holding in the case, well, you know, you have to remember this -- the operative word for a 4th Amendment search is reasonableness.  And, the court, the Supreme Court said this: a warrantless search of a shared home for evidence over the express refusal of consent by a physically present resident is not reasonable.  In that particular case, in this particular situation, the Supreme Court says that you’ve got to get a -- should have, should have got a warrant.

Besselman:  How will this decision alter how the FLETC teaches Federal law enforcement -- law enforcement officers?

Miller:  Obviously sir, you know you got two people present.  Both have actual authority over the place to be searched, the home for example.  And, one person consents but the other refuses.  You’re probably going to need judicial permission to get inside -- to get inside that home.  But, I’ll tell you this, you know Randolph, this case does not change the law with respect to exigencies.  For example, you know, if there is no time to get a warrant, if there is no reason -- if the cops don’t have time to get a warrant, then they may be able to avoid getting one.  For example, if there’s probable cause to believe the time necessary to get a warrant will result in the destruction or removal of the evidence, then the police can forgo the need for a warrant.

Besselman:  The court also talked a little bit about domestic violence situations in its opinion.  Did … I assume that would fit in some other circumstance like an exigency?

Miller:  Yes sir.  Of course, if the police have a reasonable belief that somebody inside -- that their lives are in danger, then, of course as long as the police can articulate it, then they can go inside and in that particular case there wouldn’t be time to get a warrant.

Besselman: Okay. This case then limits its holding to consent if I understood it correctly, is that what your opinion would be?

Miller:  Yes sir, it does.  I‘d like to add one final note here. And that is, what happens here if a consenting party is present and a potentially non-consenting party is absent?  Do you have to go and find and ask the potentially non-consenting party before you can go inside?  And, the Supreme Court here said “no,” so as long as there is no evidence that the police physically removed a potentially objecting party from the home for the sake of avoiding the objection.  Then, the consent from one party should be sufficient.

Besselman:  Well, that sounds like we have this particular issue covered.  Appreciate your time this afternoon, Tim.  Again, we’re talking about Georgia vs. Randolph, a recent Supreme Court decision, and if you would like to know more, you may reach us at fletc.gov and my name is John Besselman, Branch Chief, Legal Division at the Federal Law Enforcement Training Center.  And, have a good afternoon.