I recently finished a very rough draft of a new paper, Four Models of Fourth Amendment Protection, in which I explain the “reasonable expectation of privacy” test by relying on four competing models of Fourth Amendment protection. They are the norms model, which matches rules to social expectations; the privacy model, which attempts to measusure the invasiveness of law enforcement activity; the property model, which tracks property law; and the consequences model, which looks to the practical consequences of the court’s legal rule. In my paper, I argue that the Justices mix and match among all four models when they apply the “reasonable expectation of privacy” test, and that they have not chosen a single model for a very good reason: no single model consistently applied would generate a satisfactory set of results. As a result, existing Fourth Amendment law reflects an inevitable tension among these four different models.
Today’s opinions in Georgia v. Randolph provided an unusually clear demonstration of the competing models, albeit technically in the context of when a search is “reasonable” rather than the preliminary question of what is a “search.” For example, the majority opinion by Justice Souter rejects the property model in favor of the norms model. The key passage:
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. Cf. Rakas v. Illinois, 439 U. S. 128 , n. 12 (1978) (an expectation of privacy is reasonable if it has “a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society”). 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.
In his dissent, Chief Justice Roberts derides the norms model as “a hunch,” and instead would follow a privacy model: Having shared space with a third party, he argues, the person has given up their right to privacy and cannot object if the third party consents to a search. Roberts also relies on the consequences model, explaining his view that the majority’s rule is bad because it will impede domestic violence cases. Meanwhile, Justice Stevens and Justice Scalia duke it out in solo opinions on the role of the property model in Fourth Amendment law.
All of this is to suggest that there is a lot of interesting stuff in Randolph: it’s a pretty rich set of opinions at a variety of levels, and touches on a couple of major fault lines that I think are at the core of the modern Fourth Amendment. I hope to blog a lot about it (and Grubbs, too) over the next few days, as there are lot of tidbits in there to mull.
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I had a case on appeal in which the police entered a house without knocking, which had an open door. The mother was on the porch and the police claimed that she gave consent. That rationale seemed suspect and the court of appeals accepted the alternate rationale of the trial court, which was that the police could enter because of exigent circumstances. However, the police had not testified that they entered based on exigent circumstances. I believe that was simply a “logical” rationale proffered by the trial judge. I pointed out on appeal that the exigent circumstances have to be based on the police perspective at the time of entry and not later at trial. My client was upstairs in the bedroom when the police entered without knocking and announcing.
Though scenarios like those presented in Georgia v. Randolph are presumably rare, I wonder if anyone could shed some light on the practical concerns facing law enforcement who must apply 4th Amendment law while out in the field. (i.e. I wonder how the multitudes of concurrences and dissents in this case will muddle rather than clarify the application of the case to actual searches in the field.)
I will just note that during oral arguments, Justice Souter orginally made many of the critiques that found their way into C.J. Robert’s dissent. I suspect that looking forward to abortion cases may have played a role in the definition of privacy and equality in these cases.
Randolph won’t be hard to apply in the field: if there’s an objecting homeowner in the home, then you can’t search his home. That’s all. You don’t have to worry about what an absent homeowner might have wanted, and you don’t have to worry about what a present but silent homeowner secretly wants. “No” means “no” unless you’ve got a warrant or exigent circumstances. And cops don’t have to worry about what the dissenters said; they lost the day.
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Great case, great post, great issue.
Although I don’t take *too* much issue with the Opinion on it’s merits, I tend to agree with the Chief Justice’s dissent a little more. The arugment that shared areas of a cohabitated dwelling have a reduced expectation of privacy makes common sense to me. Anyone who is a lawful resident (or likewise in charge of the home at the time) should be able to give consent to search (a) the common areas and, (b) any area this is *their* private domain.
As the dissent suggests, if it is your perogative to conceal contraband in a shared home, you are wise to store it in a “private room or locked suitcase under the bed” where *your* privacy exectation is much greater.
I’m perplexed by Justice Roberts’ dissent in Georgia v. Randolph.
He begins by referring to “. . . cases in which abused spouses seek to authorize police entry into a home they share with a nonconsenting abuser.”
Of course, the police have to enter a home to search its innards, but entry and search are two very different acts.
Roberts goes on: “The majority’s rule apparently forbids police from entering to assist with a domestic dispute if the abuser whose behavior prompted the request for police assistance objects.”
Once again, Roberts seems to equate ‘entry’ with ‘search.’
Am I missing something here, or does Justice Roberts appear to be confused about the difference between entering a home and searching a home?
[OK Comments: Entering a home is the classic "search" of the home; traditionally, it is the act of entrace that is the search. What cases would you rely on to say that they are different?]
The majority opinion creates innumerable conundrums involving other Fourth Amendment rules, leading to serious practical difficulties for officers in the field. Two examples:
1) Two adults present at the home consent to the search, but the third adult — conceded by all to be an overnight guest — objects. Under “social norms,” or even a property model, the guest shouldn’t have standing. But Minnesota v. Olson (1990) tells us that overnight guests have an REP in the hosts’ home. Is the guest a “co-tenant”? What if the guest is a long-term guest? A close relative — say, the parent of the co-owner?
2) Now vary the hypo: the parties disagree about the status of the third adult, who claims to be a legal tenant/joint owner of the dwelling. Will there be a “reverse apparent authority” doctrine requiring officers to respect the objections of any adult who plausibly claims a certain quantum of social/property authority? If the officers ignore the objections, and it later emerges that the objector was lying, is the search proper?
Mark asks a number of questions regarding situations involving three people, but we cannot necessarily rely upon Randolph for deciding these case. As Breyer said in his concurrance, the court decided the case before it and not some other case.
With that having been said, we could reasonably consider the case where there are two adults, one of whom is the owner and the other a guest. Does the norms model hold that the guest has a right to object?
On the other hand, even if the owner has superior authority, it would be difficult for police to establish who was authorized to grant consent over such objection.
The safest approach for police in this situation would be to obtain a warrant absent exigent circumstances, and I would think the same goes in the case of three or more inhabitants where no obvious authority exists for one to override the objections of another.
I will give you the reaction of some folks in the lower courts — this decision was “stupid.” Why?
One gets the impression that the justices don’t understand how this will operate in reality. This isn’t going to be operative where nice people (like themselves) without anything to hide live. This is going to make policing far more difficult on the front lines of lower middle class and poor neighborhoods and give people an easier time of victimizing people who live in their homes — and I am not talking abouit merely domestic violence.
Thus, as a policy decision (because that is what it is), it is dumb. It allows a criminal to essentially veto law enforcement entry into a home where others may be present, thus making it easier for criminals to use their houses (houses where wives and children may be present) to engage in drug running, prostitution, and a series of other criminal acts. Thus, this decision, if read rationally, allows victimization of more women, children and others in the household.
The theory behind the decision is suspect. In most situations where the police are called to a joint tenancy, a tenant who has done something wrong will not agree to any search — or any entry for that matter. So, one person desperately may want the police in and to open up areas that the person has a perfect right to enter as a joint tenant, while the other does not. Further, there is no reason for the police or the courts to assume anything else. Thus, there would logically be a presumption that if another person lives in a house, permission by one person — an adult who has full access to the house — cannot give the police authority to enter the house. This effectively changes all the rules regarding joint tenancy and ownership to give each party a veto (the logic would suggest an implicit veto) on what the other does with and in terms of disclosure about property — even though the opinion says it should be worked out by the people themselves. In essence, the Court holds that a spouse (in most cases this will be a woman) can have his or her equal rights to provide access to friends — or anyone he or she wants in to help protect her (which is what the police supposedly would do) — vetoed by a miscreant husband or wife (and probably cannot overcome that veto). In essence, the Court hold that in this situation, the wrongdoer is given superior rights in a cotenancy over someone trying to prevent crime and perhaps protect him or herself and family. The logic of this position effectively creates an inferior status for women who, for some reason, are not named as property owners — which many lower middle class and middle class women would not be. It thus further indicates, to me at least, that the majority is divorced from the reality of every day life of most Americans.
Think about it this way: even though a woman (in most cases) might have an equitable right to the property as joint property, the husband can veto her rights because he sets the terms on which access can be granted. This is problemmatic both because it discriminates against women (mainly) but also because it changes the balance of rights generally recognized under property laws and domestic relations laws.
The ultimate logic of this position is that searches of property cannot be done without a warrant. Period. The owner or a tenant of property would never consent to a search — and since they have the right to veto any search or entry, before the police can enter anyplace, they will have to get a warrant.
To the extent that this case is limited to its facts and is not taken further, it is even DUMBER. So, the only cases in which they can’t search, even when invited in, are where one person standing there objects? Think about it. How often is that going to happen with nice people who are not victimizing their family and have nothing to hide? Hmmm?
There are a variety of other problems with the decision, some of which are discussed in the main dissent, some are not. But this is not a victory for freedom or privacy, it is a victory for reality-free theory.
I’ve blogged on Georgia v. Randolph, in connection with its seeming holding that one of two concurrent owners of a house can block entry by police against the desire of the other owner, while under property law generally he cannot block entry by anybody else in the world that the other owner wants to let in (in fact, the other owner can even lease out the common premises to some obnoxious third party and keep the rent money, so long as the first owner can still use the property too). My blog’s point is that this shows the amazing, self-satisfied, ignorance of all 8 of the Supreme Court justices (9 if we count O’Connor) on the subject of property law. Does anyone have any thoughts on that point? (as opposed to the broader point of whether Georgia v. Randolph was rightly decided) Or any good cases on use rights of cotenants?
See http://www.rasmusen.org/x/2006/03/25/georgia-v-randolph- property-law-and-con-law
Upon hearing this case, my first instinct was to refer back to the co-tenancy law that we discussed in my 1L property course. While I understand the decision based on Prof. Kerr’s 4-models understanding of the 4th Amendment, I am baffled by how willing the majority was to dispense with the rights of co-tenants.
Their assertion that no reasonable person would enter against the wishes of a co-tenant seems superfluous to me, and a way of dancing the real issue of whether the co-tenant has the RIGHT to invite somebody in against the co-tenant’s wishes. If the co-tenants each own 100% of the tenancy interest, then logically neither can exclude the guest of another, especially if that guest’s presence is non-rival.
There are many cases where co-tenants, joint tenants, and tenants-in-common have had to let their co-owners of interest let people onto the shared parcel where the first co-owner objected to the guest’s or guests’ presence. This case seems to carve out a troubling exception to the general co-tenant rule, and not just for the spousal abuse reasons that Breyer was concerned about.
To paraphrase Dennis Miller, “but that’s just my property rights absolutist position… I could be wrong.”
PS — Prof Kerr, is there any way to add a preview button?