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Quinlan's Legal Tip: Consent to search

A recent court decision handed down by the State of Georgia revealed a split in the judicial circuits concerning the important issue of whether police can search a residence without a warrant when one resident consents but another does not.

In State v. Randolph, the police went to Randolph's house as part of a police investigation, and after speaking with him, asked if they could search his house. When Randolph refused to allow them to search, the police obtained his wife's consent and then conducted the search.

Before trial, Randolph asked the trial court to suppress the evidence found inside his house, arguing that the warrantless search violated his Fourth Amendment rights because he refused consent. The Georgia Supreme Court ultimate agreed with him.

In the 1974 case, U.S. v. Matlock, the U.S. Supreme Court held that the police could conduct a warrantless search based on the knowing and voluntary consent of a person with common authority over the residence, and evidence discovered during the search could be used against other cohabitants. The GA Supreme Court, however, cited a couple of state court decisions in support of the view that the Matlock ruling was applicable only where the non-consenting resident was not at the house when the other inhabitant consented. The court ruled that where more than one person with common authority over a residence was present when police wanted to conduct a warrantless search, the officers had to receive the consent of each of them.

Three Georgia Supreme Court justices disagreed with the ruling, arguing that the consent of one occupant with common authority over the residence was sufficient, regardless of whether other occupants were present at the time. In support of their argument, they cited decisions from the First, Fourth, Fifth, Seventh, Ninth, 10th, and 11th U.S. Circuit Courts, which they said contradicted the court's decision. Georgia is in the 11th Circuit.

Due to the far reaching implications of this issue regarding the Fourth Amendment's restrictions on investigative procedures, Quinlan will keep you updated on developments. A full analysis of this case will appear in the January edition of Quinlan's Search and Seizure Law Bulletin. Please see www.quinlan.com for subscription information.


Source: State v. Randolph, Supreme Court of Georgia, S04G0674 (2004).

see also: U.S. v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

IMPORTANT: Quinlan’s tips are strictly for informational purposes only.

State laws may be more restrictive of investigative procedures, and federal circuit courts sometimes differ in their interpretations of current federal law. Whenever you are unclear about proper procedure, be sure to ask an attorney in your jurisdiction.

About the author

Quinlan Publishing Group in Boston offers critical and timely law enforcement information to its newsletter subscribers through a variety of publications. Summaries of important court cases, legal compliance information, technology updates, grants and funding information, news updates and helpful tips make up the content of these monthly newsletters. The newsletter titles are: Investigative Stops Bulletin; Search & Seizure Law Bulletin; Narcotics Law Bulletin; Police Department Disciplinary Law Bulletin; Police Grievances Law Bulletin; Arrest Law Bulletin; and Law Enforcement Management Bulletin.
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