When You Refuse to Consent to a Police Search, Can Your Spouse
Override That Refusal:

THE U.S. SUPREME COURT TAKES AN IMPORTANT FOURTH AMENDMENT CASE

Last month, the Supreme Court decided to review Georgia v. Randolph.
The case asks the following question: if a husband refuses to give
police consent to search his house, may the police get consent from
his wife and then go ahead with the search?

This question is important because a large number (perhaps the
overwhelming majority) of warrantless searches are conducted on the
basis of consent. The more flexible the concept of "consent,"
therefore, the more searches the police can perform, without a
warrant, without probable cause, and without any real basis for
believing that criminal activity is afoot.

Why Police Want Your Consent

Ordinarily, police must have a good reason to invade your privacy. If
an officer wants to search your home, for example, the Fourth
Amendment requires that she first obtain a warrant, after
demonstrating to a neutral magistrate that she has probable cause to
believe that she will find evidence of crime there. In the absence of
a warrant (or an emergency explaining the failure to obtain a
warrant), the police officer violates your constitutional right
against unreasonable searches and seizures when she crosses the
threshold of your home.

And even with a warrant, the officer must limit the scope of her
search to the areas where the evidence she seeks might reasonably be
located. In other words, she can't search your desk drawers for a
stolen big-screen television.

But all of that changes when you consent. Once you give a police
officer permission to search your home, you relieve her of the
obligation to obtain a warrant and probable cause. You relieve her, as
well, of the obligation to limit the scope of her search to correspond
with her basis for suspecting wrongdoing.

A simple "go ahead" in response to the question, "do you mind if I
look around?" converts what would have been an unlawful invasion of
privacy into entirely legal activity. It forfeits the Fourth Amendment
objections you might otherwise have had to the search.

So it is clear why police seek consent for searches -- it saves them a
lot of trouble, and it opens doors that the Constitution otherwise
keeps firmly shut. But why does anyone consent?

Why People Give Consent

As I elaborated in greater detail in an earlier column, the main
reason people consent to searches is that they do not know any better.
To many, a police officer's request for consent may sound like an
empty gesture that does not truly allow for a negative response. The
person to be searched may well hear an implicit "we could do this the
easy way (with consent) or the hard way (without consent) -- it is up
to you" in the police question. Who would prefer "the hard way" in the
face of those alternatives?

But don't police tell the suspect that he has the right not to be
searched? After all, when a suspect is arrested, he is told -- before
any interrogation may take place -- that he has the right to remain
silent. Doesn't the "consent search" scenario require essentially the
same thing?

The Supreme Court has said no. According to the Court, the fact that a
person might not know that he has the right to refuse consent to a
search is merely one factor in the determination of whether his
consent is voluntary. The Court has reasoned that the police need not
give warnings (to eliminate any doubt about the suspect's knowledge of
her rights), because warnings might detract from the informality of an
otherwise friendly interaction between civilians and the police.

The Supreme Court has explained that "the community has a real
interest in encouraging consent, for the resulting search may yield
necessary evidence for the solution and prosecution of crime."
Furthermore, the Court has concluded, it would be "thoroughly
impractical" to require an effective warning about the right to refuse.

Third Party Consent

It is with this perspective on consent searches -- as desirable events
that should be understood to have occurred whenever plausible -- that
the Supreme Court addressed the question of third party consent. Third
party consent occurs when the person who gives police permission to
perform a search is not the same person as the target of the search or
the defendant in the later criminal prosecution.

You may have a roommate, for example, with whom you share a kitchen,
bathroom, and living room in a two-bedroom apartment. The police
suspect that the roommate possesses marijuana and has hidden it in the
home you share. They either lack probable cause, and thus lack grounds
for a search warrant, or do not want to bother to try convincing a
judge that they are entitled to one. And they also believe that you
are more likely to consent to a search of the common areas of the
dwelling than your roommate is. So they ask for your consent to a
search of the living room and bathroom.

You might say yes, because you either don't mind or don't think you
have a choice. The police then search the medicine cabinet in your
bathroom to find evidence connected to your roommate. Perhaps they
find something. Perhaps they do not. Either way, legally, they have
not violated the Fourth Amendment.

But what if it turns out that you didn't have actual authority to
consent to the search of the medicine cabinets? Perhaps you and your
roommate agreed that you would use the shelves on the wall, and your
roommate would use the medicine cabinet, because he has an
embarrassing infection and doesn't want his medications to be visible.

According to the Court, a lack of actual authority doesn't matter
either. As long as the police reasonably believed that you had
authority to consent and that your general consent to the search of
the bathroom contemplated the medicine cabinet as well, the police
have done nothing illegal.

Disputes Between Those with Common Authority: The
Government's Side

It is in this context that the issue of disputes between people with
common authority over the premises arises. The police receive consent
to search from someone other than the search target or future
defendant. But this time, the police have already requested consent
from the target and received a negative response. Should the police be
able to proceed with a search on the basis of the third party consent
they subsequently obtain from a roommate or spouse?

It may seem obvious that the answer is yes - and that the case is
therefore a slam-dunk for the government. If the well-established
legal rule is that police need consent from only one party with common
authority, then it follows logically that the existence of a
nonconsenting other person with common authority is irrelevant.

After all, there is little difference between the target's saying "no"
to a request for consent, on the one hand, and the target's not being
asked or given an opportunity to say "yes," on the other -- either
way, the target has not given anyone permission to search his home. If
his consent is needed for a search, then the search is illegal. If it
is not, then the search is fine.

Consider an analogy. You own a car. Someone who lives down the street
from you decides to "borrow" that car. You leave your key in the
ignition because it saves time when you're in a rush. Your neighbor
gets into your car and drives around on various errands during the
day, without ever asking you for permission or otherwise getting your
authorization. That person has illegally taken possession of your car.
It is no defense, moreover, for the person to say "well, you never
said that I couldn't borrow it." The default rule is that he cannot
borrow it -- it takes an affirmative act by you to change that default.

Therefore, the "borrower's" failure to obtain your permission to use
the car is equivalent to his having expressly asked to borrow it and
received a clear "no" in response.

In the same way, the government could argue, the failure to give
consent for a search is legally indistinguishable from an affirmative
response of "no" to a request for consent. If the former does not
preclude third party consent, then the latter -- where police ask the
target and he says "no" before they go to the roommate or spouse --
should not either.

Disputes Between Those with Common Authority: The Other
Side

But this argument for the government -- persuasive on the surface --
is flawed.

Consider what happens when you share common authority over premises
with another person. You can invite friends over to the house. You can
authorize guests to use the bathroom or sit in the living room, and
you can do these things without calling your roommate or spouse to
make sure he's okay with it. But that is not because "yes" necessarily
trumps "no" when it comes to understandings and expectations about
shared spaces.

Rather, it is because the default of "no permission" changes when one
of the people with common authority over the premises grants someone
permission to enter -- whether a friend or a neighbor or the police.
Once one of you invites a person in, the default becomes permission.

Consider again the car analogy. Your neighbor still wants to borrow
your car, and he still has not asked for your permission. This time,
however, he has asked your spouse, who co-owns the vehicle, and your
spouse has said "okay." In this scenario, if your neighbor claimed
that "your spouse said I could borrow the family car," and you
believed that claim, then you would no longer have any reason to
complain about your neighbor's actions. Your spouse, in other words,
has the implicit authority to speak for both of you when someone
requests permission to use your joint property.

Unless you say otherwise, your spouse's permission thus counts as
permission from both of you. That is why your failure to raise an
objection to the neighbor's borrowing the car -- recall the "you never
said no" defense -- is meaningful when the other joint owner has said
"yes," in a way that it is not when neither of you has granted permission.

If instead, however, your neighbor has asked you first and you have
said no, his subsequently going to your spouse and getting permission
would present a very different set of circumstances. Your spouse now
no longer speaks for both of you, even implicitly, because you have
already made your wishes known to the neighbor.

By failing to accept your refusal, the neighbor -- at the very least -
has behaved improperly by seeking a different "ruling" from your
spouse. You could now understandably complain about the neighbor's
actions and say "I already told you no. Going to my spouse to ask for
permission was out of line."

Now return to the consent search case. When the police officer asks
you whether it is okay if she looks in the bathroom, your affirmative
response speaks for both you and your roommate. If, however, your
roommate has already refused consent, then you can no longer speak for
him.

The question, at that point, really does become whether "yes" can
trump "no" -- rather than whether people with common authority can
consent to searches and entries on each other's behalf (prior law
makes clear that they can).

The Court Should Rule Against the State

Let us take a step back and consider how important it is for police to
be able to perform consent searches. The Supreme Court seems to think
it is essential, saying that "a search authorized by a valid consent
may be the only means of obtaining important and reliable evidence."
But is the Court right to value consent searches so highly?

Consent searches that could not otherwise take place -- that is,
searches that are not supported by probable cause, a warrant, or some
other measure of reasonableness -- are, by that very index, unlikely
to yield results. They are based on hunches and other unsubstantiated
police guesses and thus, they frequently end with a needless invasion
of privacy coupled with the waste of precious police time.

These fruitless "consent" searches typically happen below our radar,
because police have no incentive to tell us about them, and they only
rarely cause the sort of injury that would motivate a lawsuit. In the
unusual case in which police guess correctly, we hear about the
consent search, and that selective revelation conveys the misleading
impression that something appropriate and reliable must have motivated
the search in the first place.

The invasion of privacy, moreover, can be substantial, because people
rarely feel that they have the right or the option of saying no when
police ask for permission to search, no matter how extensively. And
over time, police may come to feel entitled to get consent, which only
emboldens them to ask for permission to search on flimsier grounds and
with a greater air of legal rectitude.

But that is all set by existing Supreme Court precedents. The question
now before the Court is a relatively narrow one: whether police should
be able to "cheat" when it comes to consent -- ask dad, and when he
says no, just go to mom or grandma, etc., until they hear the answer
they want.

As rare as it is for people to exercise their right to privacy in the
face of police "requests" for forfeiture, those assertions -- when
they do occur -- deserve respect. If the Court holds otherwise, it
will further whittle away the right against unreasonable searches and
seizures -- the right to make police accumulate probable cause and
seek a warrant from a neutral magistrate before showing up at your
doorstep or your car window, hoping to look around.

Though the Court seems so far to have been mesmerized by the "need" to
search without any basis for believing the search will yield results,
it should wake up from its trance and close the door to your private
spaces.

Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B.
Lacey Scholar at Rutgers Law School in Newark. Her columns on criminal
law and procedure, among other subjects, may be found in the archive
of her work on this site.