INTRODUCTION

In Georgia v. Randolph, the United States Supreme Court held that "a physically present co-occupant's stated refusal to permit entry prevails, rendering [a] warrantless search unreasonable and invalid as to him." (1) In Randolph, the Court attempted to draw a fine line to

avoid undercutting earlier cases where the defendant was not on the premises but was in a nearby squad car (2) and where the "defendant was actually asleep in the apartment, and the police might have roused him with a knock on the door." (3) The Court drew the line by stating that "if a potential defendant with self-interest in objecting is in fact at the door and objects, the cotenant's permission does not suffice for a reasonable search, whereas the potential objector, nearby ... loses out." (4)

The result in Randolph is correct but for different reasons than the Court stated. Although the Court's holding was correct concerning the primary question whether one co-tenant's consent overrides another's objection, the Court erred when it attempted to "tie up loose ends" to prevent undercutting the holding in United States v. Matlock. (5) In Randolph, the Court held that a warrantless entry and search is unreasonable "when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects." (6) The Court should have gone one-step further and stated that if the co-occupant is in the abode or on the premises but not consulted, then the warrantless entry and search is unreasonable in that situation as well.

The Randolph holding raises several concerns. First, the Court created an inadequate standard that will not have uniform application. (7) In order to negate a co-tenant's consent to entry, the other tenant must be physically present at the moment consent is given and expressly refuse to give consent. (8) The application of this rule will be arbitrary because of the physically present and express refusal requirements. Furthermore, the Court's attempt to "tie up loose ends" supports a holding that is extremely favorable to the consenting party. For instance, the Randolph rule gives the consenting party a sword with which to strike the non-consenting party. Randolph will impact the consent exception to the warrant requirement of the Fourth Amendment and will affect citizens through real world application.

This Note addresses several issues raised by the Randolph decision. The first section discusses the legal background. The second section discusses the facts, holding, and reasoning of Randolph. The third section analyzes the opinion, including the vague and random standard created by Randolph; the "loose ends" that Randolph created; the alternate, more compelling reasons for the holding; and the future impact of the decision, especially on the consent exception.

BACKGROUND INFORMATION

The Fourth Amendment is unique in that it originated directly from the experiences of the American colonists. (9)

   The right of the people to be secure in their persons,
   houses, papers, and effects against unreasonable
   searches and seizures shall not be violated, and no
   Warrants shall issue, but upon probable cause, supported
   by Oath or affirmation and particularly describing
   the place to be searched and the persons or
   things to be seized. (10)

The founding fathers included the Fourth Amendment to protect colonists from invasions into their lives and homes. (11) These invasions were common under the British government and were often justified by utilizing a writ of assistance. (12) A writ of assistance was similar to a warrant except that it was generally open-ended, gave officers of the crown unlimited right to search any person or place, and required all parties to support the officer. (13) The writ of assistance's normal use was in support of customs and excise inspections. (14) This encumbrance of personal liberty showed the founding fathers the need to protect against a government with virtually unlimited powers to invade its citizens' privacy.

During the century following the adoption of the Constitution, few cases involving Fourth Amendment issues reached the Supreme Court. (15) Nonetheless, the Constitution's prohibition against unreasonable searches and seizures began to change as the economic and social face of the nation changed. (16) The Court faced social circumstances unforeseen by the founding fathers and made difficult choices concerning the rights of citizens against unreasonable searches and seizures. (17) The heart of the Fourth Amendment remains that "[a] search without warrant not based upon probable cause is per se unreasonable." (18) Although, "the police may forego both probable cause and a warrant ... [w]hen a person gives the police consent to enter." (19)

In 1946, in Zap v. United States, the Court opened the door to the consent exception when it held that Fourth Amendment protection, like other constitutional rights, could be waived. (20) However, Zap and the other early Fourth Amendment cases used the term waiver rather than consent. The Court continued to use the word waiver as a synonym for consent until 1973. The Court made this change to avoid any suggestion that valid consent requires a warning of the right to withhold consent. (21)

Mapp v. Ohio (22) is another important case in the application of the Fourth Amendment to criminal trials. In Mapp, the defendant was arrested for possession of obscene material, which the police seized during a warrantless search. (23) Despite the warrantless seizure, the trial court allowed the evidence to be introduced. (24) The United States Supreme Court reversed the decision (25) and held that "all evidence obtained by an unconstitutional search and seizure [is] inadmissible in a federal court regardless of its source." (26) Thus, Mapp set the stage by stating that any evidence obtained in violation of the Fourth Amendment is not admissible at trial. (27)

What constitutes consent? The Court answered this question in 1973, after police acquired consent to search a vehicle during a routine traffic stop and discovered illegal checks. (28) The Supreme Court held that "when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that [the State] demonstrate that the consent was in fact voluntarily given." (29) The Court further defined voluntariness as "a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate knowledge as a prerequisite to establishing voluntary consent." (30) Thus, consent is voluntarily granting the government access to your home and effects despite your right to withhold such access. (31)

One year after establishing the definition of consent, the Supreme Court faced another important Fourth Amendment question. In Matlock, the question before the Court was "whether the evidence presented ... with respect to the voluntary consent of a third party to search the living quarters of the respondent was legally sufficient to render the seized materials admissible in evidence at the respondent's criminal trial." (32) In Matlock, the Court took the consent exception in an interesting direction when it held that "the voluntary consent of any joint occupant of a residence to search the premises jointly occupied is valid against the co-occupant, permitting evidence discovered in the search to be used against him at a criminal trial." (33)

In Matlock, a suspected bank robber was detained in a squad car while police officers approached his residence and obtained consent to search the house from the woman with whom he lived. (34) Matlock is important because the Court recognized that a co-tenant's consent to a search is enough to satisfy the consent exception, even though the other tenant is not consulted. (35)

In 1989, the Supreme Court took the rule in Matlock one step further by holding:

   [T]o satisfy the "reasonableness" requirement of the Fourth
   Amendment, what is generally demanded of the many factual
   determinations that must regularly be made by ... the police
   officer conducting a search or seizure under one of the exceptions
   to the warrant requirement--is not that they always be correct, but
   that they always be reasonable. (36)

In Rodriguez, the Court faced a situation where the police, after being called to a woman's house and meeting her, noticed that she had been abused. (37) The woman stated that she had been assaulted by Edward Rodriguez earlier in the day, that the accused was asleep at the apartment, that the apartment was "our" apartment, and that she kept clothes and furniture in the apartment. (38) Without the police obtaining a warrant, the woman unlocked the door and consented to the officers entering the apartment. (39) Once inside, the officers saw in plain view "drug paraphernalia and containers filled with white powder" that later proved to be cocaine. (40) "The officers arrested the accused and seized the drugs and related paraphernalia." (41)

Rodriguez is important in the legal evolution of the consent exception because it clarified what the Fourth Amendment does and does not guarantee by stating that the exclusionary rule guarantees the defendant that "no evidence seized in violation of the Fourth Amendment will be introduced at ... trial unless [the defendant] consents." (42) While the Fourth Amendment guarantees that "no [government] search will occur that is 'unreasonable.' There are various elements, of course, that can make a search of a person's house 'reasonable' one of which is the consent of the person or his co-tenant." (43)

In 1990, the Court faced another consent question in Minnesota v. Olson. (44) In Olson, the respondent was suspected of driving the getaway car used in a robbery-murder. (45) The police recovered the murder weapon and apprehended one of the suspected murderers. (46) Later, the police converged on the home where they believed Olson was staying. (47) They telephoned the home and told one of the residents that Olson should come out. (48) Then "the detective heard a male voice say, 'tell them I left."' (49) Without seeking permission, the police entered the home, found Olson hiding in a closet, and arrested him. (50) The district court convicted Olson of murder, armed robbery, and assault. (51) The Minnesota Supreme Court reversed, ruling that Olson had "sufficient interest in the ... home to challenge the legality of his warrantless arrest there [and] that the arrest was illegal because there were no exigent circumstances to justify a warrantless entry." (52) The United States Supreme Court affirmed the state supreme court and held that "O1son's status as an overnight guest is alone enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable." (53) Thus, the consent exception became more complex as the law developed to recognize that "overnight houseguests have a legitimate expectation of privacy in their temporary quarters because 'it is unlikely that [the host] will admit someone who wants to see or meet with the guest over the objection of the guest.'" (54)

Although the Court had taken steps to clarify the scope of the consent exception, it had yet to address the question of whether consent is valid when given by one co-tenant over the express refusal of another present co-tenant. (55) Four federal appellate courts previously answered the question, and all held that consent remains effective in the face of an express objection. (56) Only one state court that addressed the same issue reached the conclusion that consent is not effective in the face of an express objection. (57)

STATEMENT OF THE CASE

A. Relevant Facts

Scott Randolph and his wife, Janet, separated in late May of 2001. (58) Janet returned to their residence on July 4, and on the morning of July 6, complained to the police about a domestic dispute. (59) Janet told the police that Scott had taken their son away. (60) When the officers reached the house, Janet told them that her husband used cocaine. (61) Scott returned shortly after the police arrived and explained that he took his son to a neighbor's house because he was afraid Janet would leave with his son. (62) Scott adamantly denied using cocaine. (63) One of the officers, Sergeant Murray, went with Janet to pick up her son, and when they returned, Janet renewed her complaints about Scott's drug use and suggested that the officers search the house. (64)

After Scott refused Sergeant Murray's request to search the house, Janet consented and took the officers to a room that she claimed to be Scott's room. (65) The sergeant found a part of a drinking straw and a chalky substance. (66) Suspecting the substance was cocaine, the sergeant went to get an evidence bag and to call for further instructions. (67) Upon the sergeant's return, Janet rescinded her consent, but the sergeant collected the evidence anyway and took the Randolphs to the police station. (68) The police officers then obtained a search warrant and collected further drug-use evidence from the Randolphs' house. (69) As a result, "Scott was indicted for possession of cocaine." (70)

B. Procedural Posture

The trial court denied a motion to suppress the evidence, ruling that Janet had common authority over the residence to consent to the search. (71) The court of appeals reversed, and the state supreme court affirmed the court of appeals. (72) The state supreme court affirmed "on the ground that 'the consent to conduct a warrantless search of a residence given by one occupant is not valid in the face of the refusal of another occupant who is physically present at the scene to permit a warrantless search."' (73) The United States Supreme Court granted certiorari "to resolve a split of authority on whether one occupant may give law enforcement effective consent to search shared premises," even though a co-tenant is present and expressly refuses to permit the search. (74)

C. Reasoning

The Supreme Court affirmed the state supreme court, stating that "[t]his case invites a straightforward application of the rule that a physically present inhabitant's express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant." (75) The Court reasoned that "the assumption tenants usually make about their common authority when they share quarters" is that "any one of them may admit visitors." (76) The Court relied heavily on the holding from Matlock and did not stray from the rule that one assumes the risk that someone whom a co-tenant may not wish to enter his dwelling, may be admitted in his absence. (77) The holding in Matlock did not fully answer the question at hand because Matlock did not address whether a consenting tenant's authority overrides a co-tenant's express objection. (78) Based on a cursory examination of Matlock, the answer seems to be yes; however, the Court distinguished Matlock from the present case based on the physical presence of the objecting co-tenant. (79) Scott was a part of the conversation and expressly refused to allow police to search his home. (80) The Randolph Court emphasized "It]he State Supreme Court stressed that the officers in Matlock had not been 'faced with the physical presence of joint occupants, with one consenting and the other objecting.'" (81)

Although Randolph was the first time that the Court dealt directly with this question, it "took a step toward the issue in an earlier case dealing with the Fourth Amendment rights of a social guest arrested at premises the police entered without a warrant or benefit of any exception to the warrant requirement." (82) The Court held previously that "overnight houseguests have a legitimate expectation of privacy ... because 'it is unlikely that [the host] will admit someone who wants to see or meet with the guest over the objection of the guest.'" (83) Thus, the Court reasoned that if this expectation of privacy extends to a temporary guest, then the expectation should certainly extend to a co-habitant. (84)

If it would have held otherwise, the Court would have abandoned the "centuries-old principle of respect for the privacy of the home." (85) The Court further stated that our national history is replete with the understanding "that a man's house is his castle." (86) The Court attempted to avoid undercutting Matlock and Rodriguez by stating that "if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant's permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out." (87) The Court supported its premise by declaring that "there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant's permission when there is no fellow occupant on hand, [and] the other according dispositive weight to the fellow occupant's contrary indication when he expresses it." (88)

ANALYSIS

The Fourth Amendment guarantees that people are "secure in their persons, houses, papers, and effects against unreasonable searches and seizures." (89) To ensure this protection, the Fourth Amendment must have a fluid and uniform means of application. This section sets forth three problems with the holding in Randolph and explores the future implications of the holding. First, the holding created a vague and ambiguous judicial standard that will have no fluidity in its application. Second, the Court created more loose ends than it tied up by creating a system that allows an officer to bypass a potentially objecting tenant. Third, the holding in Randolph gave government agents the ability to manipulate a situation into an opportunity to trample the constitutional rights of another. Finally, this section analyzes the implications of the holding and its effect on future Fourth Amendment jurisprudence.

A. Creating a Vague and Random Standard

A primary issue raised by Randolph is whether the standard can be applied consistently. (90) The dissent briefly touched on this issue when arguing that the holding created a vague and random standard. (91) The dissent further stated that because the holding leads to a random application of the Fourth Amendment, one party's consent is enough to satisfy the requirements of the Fourth Amendment, even in the face of an express refusal. (92) The dissent's logic, however, is inherently flawed by the use of the premise that the holding creates a vague standard in support for the wrong cause. An important issue discussed in this Note is that the Court's error in reasoning will inevitably lead to a randomized application of the Fourth Amendment due to the Court mistakenly trying to avoid undercutting Matlock and Rodriguez.

The enforcement of laws should not be arbitrary in how they are applied or whom they protect, especially in regards to the Fourth Amendment because it is a cornerstone of our Constitution. In addition, "it is beyond dispute that the home is entitled to special protection as the center of the private lives of people." (93) Therefore, the courts must limit exceptions and protect the Fourth Amendment by imposing "limits on search-and-seizure powers in order to prevent arbitrary and oppressive interference by enforcement officials." (94) The Randolph holding accomplished this goal by recognizing the right of a present co-occupant to expressly refuse entry despite another's consent. (95) At the same time, the majority's reasoning set the Fourth Amendment on a slippery slope that may lead to a broadening of the consent exception and a randomized application.

The Randolph Court correctly held that "a physically present inhabitant's express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant." (96) Although this holding is correct, the rule does not go far enough in ensuring the protection of a citizen's Fourth Amendment right to be protected from unreasonable searches and seizures or in ensuring a uniform application of the Fourth Amendment. The Court noted that the Fourth Amendment protects a present objector, but "the potential objector, nearby ... loses out." (97) The Court failed to address this anomaly of why the nearby co-tenant should lose out while a present objector does not. One's ability to control his home cannot be "subordinated to a joint occupant [while he] remains on the premises and is able to object to access by others." (98)

Respecting a tenant's wishes when he expressly refuses consent does not aid criminal activity as the dissent suggests. (99) The cases cited by the dissent do not support its view "that recognizing limits on merely evidentiary searches would compromise the capacity to protect a fearful occupant." (100) In addition, forcing a person "to be subjected to a warrantless search in his [or her] home without his [or her] consent [takes away] some of the liberty that the Fourth Amendment was designed to protect." (101) Thus, despite the dissent's fears of increased criminal activity, respecting a tenant's wishes will further the goals of the Fourth Amendment, which are aided by tightening an exception and ensuring that "[t]he fight of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures continues." (102) In its attempt to draw a fine line and not undercut earlier cases, the Court drew a wavering line and broadened the consent exception so as to result in a vague and random application. (103)

When only one person is present at the premises, then that person's consent is understandably sufficient if the government agents reasonably believe that person has authority over the premises. (104) To ask police to hunt down the other co-tenant, or possibly even co-tenants, is too much of a burden. However, despite its reasoning, the majority does not sufficiently address what happens if the co-tenant is asleep, in another room, or even in the backyard, but the co-tenant is certainly present in the sense that he is only a few feet away. (105) Therefore, the Court erred when it tried to avoid undercutting Matlock, where the defendant was in a squad car not far away, and Rodriguez, where the defendant was asleep in the apartment and could have been awakened. (106) The Court reasoned that such "formalism is justified ... [if] there is no evidence that the police have removed the potentially objecting tenant ... [to avoid] a possible objection." (107) Through its reasoning, the Court ensured that the future application of its holding to other consent cases will be random.

Furthermore, by creating a randomized application of the Fourth Amendment, the Court departed from its longstanding view that a magistrate's determination is preferable to the "hurried action of officers ... who ... make arrests." (108) The random application inevitably resulting from the Court's reasoning is unacceptable because it turns a protection guaranteed by the Constitution into a game of chance.

The founding fathers did not have this type of haphazard application in mind. At the time they drafted the Constitution, the husband was "'the master of the house' ... [and whether he] consented or objected, his decision would control." (109) Today, "the male and the female are equal partners," (110) but in the scope of American history, this societal change is recent. The Court failed to consider how recent the societal change was. At the time the Fourth Amendment was ratified, each household had an ultimate decision-maker, who was consulted on all issues dealing with the home. The founding fathers thought that each household would always have an ultimate decision-maker to make decisions on behalf of the household. The error of the Court in attempting to draw a fine-line without undercutting earlier cases is highlighted when one considers, in terms of consent, the contemporaneousness of the societal change, which equated the husband and wife. If a cotenant is present, he or she should be consulted.

The dissent correctly noted that the Randolph holding provided Fourth Amendment "protection on a random and happenstance basis." (111) The Randolph rule protects "a co-occupant who happens to be at the front door when the other occupant consents to a search, but not one napping or watching television in the next room." (112) Such random protection comes at a great cost. (113) Even though the dissent argued for the exact opposite of what this Note suggests, the dissent's premise nonetheless highlights the problem that Fourth Amendment protection being dependant upon where the citizen is located "exhalts [sic] expediency over an individual's Fourth Amendment guarantees ... [and] beat[s] a path to the door of exceptions." (114)

B. Creating Loose Ends Instead of Removing Them

The Court's reasoning is flawed and sets the Fourth Amendment on a slippery slope. By not requiring the police to consult a possible objector, the possible objector is removed from the equation. No real difference exists between not consulting a person who is known to be present and able to object and removing "the potentially objecting tenant ... [to avoid] a possible objection." (115) The Court failed to address this issue and in its failure, created more loose ends than it tied up. The Court failed to realize fully that "[t]he warrant requirement ... is not an inconvenience to be somehow 'weighed' against the claims of police efficiency." (116) In addition, a key principle guiding the Randolph rule is that the police cannot remove a tenant to avoid a possible objection. (117) This limitation protects tenants from police, who may lure or take them away in order to obtain another occupant's consent, but the limitation fails to protect tenants from themselves. The rule, as stated, is silent as to what happens if a spiteful co-tenant lures the other tenant away for the same purpose.

Moreover, the Court unnecessarily addressed the "loose end" in Matlock because the Matlock holding already receives protection from the "incident to a lawful arrest" exception elucidated in Chimel v. California. (118) The Chimel Court noted:

   [I]t is reasonable for the arresting officer to search
   the person arrested in order to remove any weapons
   that the latter might seek to use in order to resist arrest
   or effect his escape.... In addition, it is entirely
   reasonable for the arresting officer to search
   for and seize any evidence on the arrestee's person
   in order to prevent its concealment or destruction.
   And the area into which an arrestee might reach in
   order to grab a weapon or evidentiary items must, of
   course, be governed by a like rule. (119)

Despite notions to the contrary made by the dissent, the officers in Matlock could have relied on the "exigent circumstances" exception that "[i]f the police have good reason to think that a man is abusing his partner, they can and should enter the premises to investigate and to protect the victim." (120) Furthermore, nothing was stopping Janet from entering the home and bringing the evidence to the officers herself.

On the other hand, the "loose ends" created by the Court in its attempt to avoid undercutting the holding in Rodriguez need to be discussed. In Rodriguez, one tenant was asleep when officers arrived and gained consent to search the premises from a cotenant. (121) The Randolph Court attempted to explain why the tenant in Rodriguez did not need to be consulted. (122) The Court distinguished Rodriguez from Randolph on the basis that the defendant in Rodriguez was not present while the defendant in Randolph was present. (123) The reasoning is unconvincing and insufficient given the consequences at stake.

The Randolph decision has an important impact on future consent cases. The Court's reasoning created a system in which chance and location determine who is protected by the Fourth Amendment. For instance, if Scott would have been inside the house instead of outside standing next to his wife, then using the Court's reasoning, the Fourth Amendment would not have protected him. The Court offered no substantive reason why it leaves a person's rights to chance. Even if one tenant is asleep, that tenant "should be able to exercise the right to turn away unwanted guests, even when the guests happen to be officers of the law." (124)

C. The Co-tenant Strikes Back

Although the holding in Randolph is correct, the Court overlooked different and more compelling reasons for reaching its conclusion. The Court should have discussed that a holding recognizing a co-tenant's consent overwhelmingly favors government officials and the consenting party instead of the Fourth Amendment. In addition, such a holding gives the present consenter a sword with which to strike the non-consenting party.

In the present case, Scott and his wife, Janet, were placed in a peculiar situation. Janet and Scott were having marital problems. (125) Janet had to face a home and a man that she ran from just one month earlier. (126) In addition, upon her arrival Scott took their son away from Janet and placed him with a neighbor. (127) Janet was likely extremely emotional and angry at the time the police arrived and probably had numerous reasons for consenting to the search of the home. Not surprisingly, Janet jumped at the chance to allow the police into the home (128) hoping they would find evidence of some crime. To allow Janet's consent to trump Scott's refusal would set a dangerous precedent because people would be able to manipulate a situation to hurt someone with whom they are presently angry. Nothing positive would come from allowing a person to have a way of manipulating a situation to serve their own devious purpose and trample another's constitutional right.

In Randolph, the argument that Janet has a right to call illegal activity to the attention of the authorities (129) does not apply. Janet had not been at the house in one month (130) and even though drug use occurred in the past she could not know with absolute certainty what was inside the house. Janet likely made the accusations to spite her husband and not to bring criminal activity to light. The Court's holding does a fine job of addressing the question of "whether customary social understanding accords the consenting tenant authority to prevail over the co-tenant's objection." (131) The majority answers correctly that "a physically present co-occupant's stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him." (132)

The Court's opinion should have addressed the chaos that would ensue if government officials were allowed to bypass the Fourth Amendment based on the voluntary consent of one occupant despite the other present occupant's express objection. Allowing the consenting party to hold all the power is extremely dangerous. For instance, consider the following situation, The police arrive at a residence, and one tenant begins to make accusations. The police ask for the accusing tenant's consent to search the residence, reasonably believing him or her to have the authority to give consent. Shocked, the other tenant expressly refuses. Tempers flare and the consenting party is allowed to strike out in anger at the other tenant. Using the same situation, even someone who was not a tenant could use the consent exception to invade one's privacy. They merely need to be in the right place at the right time and consent to a search. The fact that the government official only needs a reasonable belief that the consenting party has the authority to consent to a search (133) adds to the chaos that would ensue.

The dissent recognized that a wide variety of circumstances might give rise to very different social expectations. (134) Even though arguing for a holding that would broaden governmental power rather than restraining it, the words and examples above illustrate that the possibilities are endless. The idea that anyone could manipulate a situation into an opportunity to trample the constitutional rights of another is unacceptable. This concept is a powerful argument that could have been used to support the Court's holding but was overlooked.

D. Future Implications

This section analyzes the implications that the holding and its reasoning will have on future Fourth Amendment cases and the direction the Court may take in deciding future Fourth Amendment cases. On first glance, Randolph seems to be protecting the Fourth Amendment, but on closer examination, a flaw in the Court's reasoning actually lessens the protection from an unreasonable search and seizure. Specifically, the Court stated that "if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant's permission does not suffice for a reasonable search, whereas the potential objector, nearby ... loses out." (135) This statement illustrates the Court's attempt to settle the incongruities of Randolph, Rodriguez, and Matlock. Instead, the majority created an encumbrance to the Fourth Amendment by vastly extending exceptions to protection.

The consent exception is a powerful exception that allows officers to bypass obtaining a warrant, while still keeping their search and seizure within the definition of reasonable and therefore, within the bounds of the Fourth Amendment. (136) To help protect the Fourth Amendment, the Court needed to state that if "the cohabitant [is] present and able to object, the police must also obtain the cohabitant's consent." (137) This statement is a more reasonable solution when faced with amalgamating the three holdings.

One may raise the argument that this suggestion is too burdensome on government officials, but that argument is weak. First, in regards to the Fourth Amendment, the "centuries-old principle [is] respect for the privacy of the home." (138) If the founding fathers wanted to make invasion into the home by government officials an expedient undertaking, they would have kept the writ of assistance, but they did not. Instead, the founding fathers envisioned the Fourth Amendment to protect the privacy of the home. The holding in Randolph is correct; it recognizes that in the face of an express refusal, the government cannot intrude into your privacy. (139) Despite this holding, the Court missed an opportunity to strengthen the Fourth Amendment.

Any exception to the Fourth Amendment is important and should be strictly scrutinized because such an exception authorizes government officials to enter a premises when they have a good reason to do so. (140) There are two reasons why the Court needed to state that any person who can be consulted should be consulted when trying to obtain consent to entry. First, consent is the most obvious exception and dependant on the circumstances, the easiest to ascertain and receive. Many tenants feel that the government's ability to enter their home to pursue justice is a "matter of police entitlement rather than a gratuitous courtesy to law enforcement that every person should feel completely free to withhold." (141) The police have an enormous advantage when obtaining consent, and broadening the exceptions increases this advantage by placing more power in the hands of the police.

Many tenants simply do not fully understand their rights. The broadening of the consent exception gives officials even more discretion in how they obtain consent. For instance, while the government official will preferably make sure that the tenants are aware of their right to refuse consent, the failure to inform the cotenants of that right is not required to prove voluntariness of the consent. (142) Thus, given this level of discretion, the Court should have decreased the broad scope of the consent exception instead of leaving it open for further expansion.

Finally, many people feel obligated to consent to a search when an authority figure is at their door. (143) Requiring government officials to consult any person in the home is the proper standard. Empirical studies have suggested that "people are obedient to 'legitimate authority'" to a great degree. (144) This phenomenon is important because it supports the premise that when faced with an officer of the law, most people feel nervous and anxious to cooperate. (145) Many people agree to a search hoping that the uncomfortable situation will end quicker or that the officer will just go away. (146) In addition, one can make a strong argument that "aside from law students and professional criminals, Americans are not educated to say no to the police." (147) This argument should reverberate through the minds of all who read it because it is so pro, foundly true. While lawyers are trained in the law, the rank-and-file American is not only trained to cooperate with police but has little or no knowledge of what they should do when confronted with the choice of saying yes or no to an officer of the law.

The fact that many citizens simply do not care about the Fourth Amendment is more unsettling. Over the years the Fourth Amendment has earned a bad reputation, (148) and many citizens today see the Fourth Amendment as a tool for the wicked and vile of society to weasel out of trouble. Also troubling for the future of the Fourth Amendment is that "so many Americans give the Fourth Amendment an adolescent--'What's the big deal?'--shrug that runs something like this: I've never been searched or arrested and never will be since I'm not doing anything illegal." (149) This view, which seems to be echoed by the Randolph dissent, misses the larger picture. The Fourth Amendment was added to the Constitution to safeguard every citizen's right to be protected from unreasonable search and seizure, not just every good citizen's right. The mere fact that someone does not regularly use or have anticipation of using a right does not negate the importance of that right. Hopefully, the Fourth Amendment will not continue to dissipate in the hearts of those it is intended to protect or at the hands of those who interpret it. "As Judge Learned Hand warned many years ago, 'Liberty lies in the hearts of men and women; if it dies there, no constitution, no law, no court can save it.'" (150)

The future of the Fourth Amendment is difficult to determine. Looking at past decisions, the Burger and Rehnquist Courts were often champions for the government. (151) However, on September 29, 2005, a new era began as John Roberts, Jr. succeeded Rehnquist as Chief Justice. (152) On March 22, 2006, in Randolph the Roberts Court rendered its first Fourth Amendment decision. (153) In a five to three decision, with Justice Alito taking no part, the Roberts Court signaled that perhaps the trend of pro-government Fourth Amendment decisions "will change. The Roberts Court signaled the change by shutting the door on the consent exception in situations where in the face of one co-tenant's consent to a warrantless search, another co-tenant expressly refuses to give consent. (154)

Even with this seemingly pro-Fourth Amendment decision, the future remains bleak for the Fourth Amendment. To explain, the Court, in its decision, emphasized the formalism and simplicity that the Court felt its rule created instead of looking at the ambiguities that could and likely will arise from its holding. In his dissent, Chief Justice Roberts, argued strenuously that to share is to surrender. Chief Justice Roberts did this by stating that when a co-tenant shares his home, he should assume the risk that his co-occupant may admit authorities without his consent. (155) Thus, given the majority's reasoning and Chief Justice Robert's dissent, believing that the Fourth Amendment will see further deterioration is reasonable.

Only one member of the current Court, Justice Stevens, has shown "any consistent willingness to vote against the government in Fourth Amendment cases." (156) The future of the consent exception to the Fourth Amendment is of the utmost importance because "there is no doubt that these type[s] of searches affect tens of thousands, if not hundreds of thousands, of people every year." (157) Since government agents rely so heavily on the consent exception to gain entry into people's homes, the Court should be careful to avoid accidentally creating a modern day writ of assistance.

These issues bring the majority's reasoning error to light. Government officials need to consult any possible objector who is in the abode or on the premises. Doing otherwise greatly broadens the consent exception and allows government officials to pay lip service to the Fourth Amendment. The primary concern of the Fourth Amendment is protecting a citizen's privacy, and the Court must tread carefully when addressing future cases to avoid overlooking that fact.

CONCLUSION

The decision in Georgia v. Randolph is an important addition to the interpretation of Fourth Amendment protection. The decision establishes a bright-line rule: If one co-tenant consents to a search and seizure while another present co-tenant objects, then any search or seizure is per se unreasonable as to the objecting cotenant. (158) This bright-line rule helps preserve a constitutional right that is being eroded by courts paying lip service to rules while broadening exceptions. The result of this case will help curb intrusions into the private lives of citizens. In addition, government officials' jobs are made easier because they no longer have to wonder whether a disputed consent means they can enter. Despite the positive consequences of the Randolph decision, negative consequences resulted as well. The Court erred in "tying up loose ends" and missed a chance to strengthen Fourth Amendment protection. One must remember that "[t]he Fourth Amendment was not adopted to assist the authorities in their searches, but to protect the people." (159)

(1) Georgia v. Randolph, 126 S. Ct. 1515, 1519 (2006).

(2) Id. at 1520-21 (citing United States v. Matlock, 415 U.S. 164, 166 (1974)).

(3) Id. at 1527 (referring to Illinois v. Rodriguez, 497 U.S. 177, 180 (1990)).

(4) Id.

(5) Id. (discussing the need to "draw a fine line" to prevent undercutting the holding in Matlock).

(6.) Id. at 1518 (citing Rodriguez, 497 U.S. at 181).

(7.) Id. at 1536 (Roberts, C. J., dissenting).

(8.) Id. at 1526 (majority opinion).

(9) 1 BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 199 (Chelsea House Publishers 1971).

(10) U.S. CONST. amend. IV.

(11) 1 SCHWARTZ, supra note 9.

(12) Id.

(13) Id.

(14) Id. (distinguishing a modern warrant from a writ of assistance).

(15) Id.

(16) Id.

(17) Id.

(18) Id. (explaining what makes a search unreasonable).

(19) Sherry F. Colb, 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, WRIT: LEGAL COMMENTARY, May 18, 2005, http://writ.corporate.findlaw.com/colb/20050518.html (last visited Feb. 14, 2007).

(20) Zap v. United States, 328 U.S. 624, 628 (1946) (holding that consent to seizure voluntarily waives the defendant's Fourth Amendment fight).

(21) Schneckloth v. Bustamonte, 412 U.S. 218, 243-44 (1973).

(22) Mapp v. Ohio, 367 U.S. 643 (U.S. 1961).

(23) Id. at 645.

(24) Id.

(25) Id. at 660.

(26) Id. at 654 (citing Elkins v. United States, 364 U.S. 206, 213 (1960)).

(27) Id.

(28) Schneckloth v. Bustamonte, 412 U.S. 218, 220 (1973).

(29) Id. at 248.

(30) Id. at 248-49.

(31) Id.

(32) United States v. Matlock, 415 U.S. 164, 166 (1974).

(33) Id. at 169.

(34) Id. at 166.

(35) Id. at 177.

(36) Illinois v. Rodriguez, 497 U.S. 177, 185-86 (1990).

(37) Id. at 180.

(38) Id. at 179.

(39) Id. at 179-80.

(40) Id.

(41) Id.

(42) Id. at 183.

(43) Id. at 183-84 (internal citation omitted).

(44) Minnesota v. Olson, 495 U.S. 91, 93 (1990).

(45) Id. at 93-94.

(46) Id. at 93.

(47) Id. at 94.

(48) Id.

(49) Id.

(50) Id.

(51) Id.

(52) Id.

(53) Id. at 96-97.

(54) Georgia v. Randolph, 126 S. Ct. 1515, 1522 (2006) (quoting Olson, 495 U.S. at 99) (alteration in original).

(55) See id. at 1518-19 (defining the issue to be decided).

(56) United States v. Morning, 64 F.3d 531, 533-36 (9th Cir. 1995)(holding that one resident was permitted to give access to the premises even if the other resident objected); accord United States v. Donlin, 982 F.2d 31, 33 (1st Cir. 1992) (holding that a wife giving a key to open door and permission to kick open a chain-locked door was valid consent); accord United States v. Hendrix, 595 F.2d 883,885 (D.C. Cir. 1979) (holding that a warrantless search based on consent of the defendant's wife was legal); accord United States v. Sumlin, 567 F.2d 684, 687-88 (6th Cir. 1977) (holding that a defendant's female companion had the requisite common authority over the apartment to consent to a search, despite defendant's previous refusal).

(57) See State v. Leach, 782 P.2d 1035, 1040 (Wash. 1989) (en bane) (requiring consent of all present co-occupants for a valid warrantless search). But see, e.g., Love v. State, 138 S.W.3d 676, 680 (Ark. 2003) (finding that an officer may seize an object in plain view if he has probable cause to believe that the object is either evidence of a crime, fruit of a crime, or an instrumentality of a crime); Laramie v. Hysong, 808 P.2d 199, 203-05 (Wyo. 1991) (holding that the husband's refusal did not overpower his wife's consent).

(58) Randolph, 126 S. Ct. at 1519.

(59) Randolph v. State, 590 S.E.2d 834, 836 (Ga. Ct. App. 2003).

(60) Randolph, 126 S. Ct. at 1519.

(61) Id.

(62) Id.

(63) Id.

(64) Id.

(65) Id.

(66) Id.

(67) Id.

(68) Id.

(69) Id.

(70) Id.

(71) Id.

(72) Id.

(73) Id. (quoting State v. Randolph, 604 S.E.2d 835, 836 (Ga. 2004)).

(74) Id. at 1520.

(75) Id. at 1528.

(76) Id. at 1521.

(77) Id.

(78) Id. at 1527.

(79) Id. at 1520.

(80) Id. at 1519.

(81) Id. at 1520 (quoting State v. Randolph, 604 S.E.2d 835, 837 (Ga. 2004)).

(82) Id. at 1522 (citing Minnesota v. Olson, 495 U.S. 91, 93 (1990)).

(83) Id. (quoting Olson, 495 U.S. at 99) (alteration in original).

(84) Id. The Court stated that "[i]f that customary expectation of courtesy or deference is a foundation of Fourth Amendment rights of a houseguest, it presumably should follow that an inhabitant of shared premises may claim at least as much, and it turns out that the co-inhabitant naturally has an even stronger claim." Id.

(85) Id. at 1523 (quoting Wilson v. Layne, 526 U.S. 603, 610 (1999)).

(86) Id. at 1524 (quoting Miller v. United States, 357 U.S. 301,307 (1958)).

(87) Id. at 1527.

(88) Id.

(89) U.S. CONST. amend. IV.

(90) Randolph, 126 S. Ct. at 1531 (Roberts C. J., dissenting).

(91) Id.

(92) Id.

(93) Id. at 1523-24 (majority opinion) (quoting Minnesota v. Carter, 525 U.S. 83, 99 (1998) (Kennedy, J., concurring)).

(94) United States v. Martinez-Fuerte, 428 U.S. 543, 554-55 (1976) (discussing the importance of placing limits on Fourth Amendment exceptions).

(95) Randolph, 126 S. Ct. at 1528.

(96) Id.

(97) Id. at 1527.

(98) State v. Leach, 782 P.2d 1035, 1038 (Wash. 1989).

(99) See Randolph, 126 S. Ct. at 1538-39 (Roberts, C. J., dissenting) (suggesting that the majority's opinion will aid criminal activity).

(100) Id. at 1526.

(101) Illinois v. Rodriguez, 497 U.S. 177, 198 (1990) (Marshall, J., dissenting).

(102) U.S. CONST. amend. IV.

(103) See Randolph, 126 S. Ct. at 1531 (Roberts, C.J., dissenting) (stating that the majority's holding will provide "protection on a random and happenstance basis").

(104) Illinois v. Rodriguez, 497 U.S. 177, 187 (1990).

(105) See Randolph, 126 S. Ct. at 1527 (acknowledging the fine line between a tenant at the front door and a tenant nearby).

(106) See id. (discussing the facts in Rodriguez and Matlock).

(107) Id.

(108) Rodriguez, 497 U.S. at 190-91 (quoting United States v. Lefkowitz, 285 U.S. 452, 464 (1932)) (holding that a search was not justifiable under certain circumstances as an incident of the arrest).

(109) Randolph, 126 S. Ct. at 1529 (Stevens, J., concurring).

(110) Id. (citing Reed v. Reed, 404 U.S. 71, 76-77 (1971)).

(111) Id. at 1531 (Roberts, C.J., dissenting).

(112) Id.

(113) Id.

(114) State v. Leach, 782 P.2d 1035, 1040 (Wash. 1989) (noting a danger of an increase in the number of exceptions to the Fourth Amendment).

(115) Randolph, 126 S. Ct. at 1527.

(116) Id. at 1524 n.5 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 481 (1971)) (omission in original).

(117) Id. at 1527.

(118) Chimel v. California, 395 U.S. 752, 755 (1969) (stating that a warrantless search of a residence is justified when "incident to a valid arrest").

(119) Id. at 763 (finding the search unreasonable on the basis that there was no justification for searching any room other than where the arrest occurred).

(120) Colb, supra note 19.

(121) Illinois v. Rodriguez, 497 U.S. 177, 180 (1990).

(122) Randolph, 126 S. Ct. at 1527 (stating that most tenants would give consent if consulted).

(123) Id.

(124) Colb, supra note 19 (discussing how one spouse should be able to turn away unwanted guests, even police officers).

(125) Randolph, 126 S. Ct. at 1519.

(126) See id. (stating that Janet had left the residence and taken her son to Canada).

(127) Id.

(128) Id. (stating that Janet readily gave her consent).

(129) Id. at 1519-20.

(130) Id. at 1519 (discussing the time that Janet had been away from the home).

(131) Id.

(132) Id.

(133) Illinois v. Rodriguez, 497 U.S. 177, 186 (1990).

(134) Randolph, 126 S. Ct. at 1532 (Roberts, C. J., dissenting).

(135) Id. at 1527 (majority opinion).

(136) But see Rodriguez, 497 U.S. at 192 (Marshall, J., dissenting) (stating that the "constitutional interest in preventing unauthorized intrusions into the home overrides any law enforcement interest in relying on the reasonable but potentially mistaken belief that a third party has authority to consent to such a search or seizure").

(137) State v. Leach, 782 P.2d 1035, 1040 (Wash. 1989).

(138) Randolph, 126 S. Ct. at 1523 (quoting Wilson v. Layne, 526 U.S. 603, 610 (1999)) (stating the central value of the Fourth Amendment)

(139) Id. at 1528 (stating that the express refusal to permit a search makes the warrantless search dispositive as to the non-consenting party).

(140) Colb, supra note 19.

(141) Id.

(142) See Schneckloth v. Bustamonte, 412 U.S. 218, 249 (1973) (holding that knowledge of right to withhold consent is only one factor to consider when determining voluntariness of consent).

(143) Marcy Strauss, Reconstructing Consent, 92 J. CRIM. L. & CRIMINOLOGY 211, 213 (2002) (discussing how current caselaw does not address that most people will feel compelled to give consent).

(144) Daniel L. Rotenberg, An Essay on Consent(less) Police Searches, 69 WASH. U. L.Q. 175, 188 (1991).

(145) Id.

(146) Id. at 187.

(147) Id. at 189.

(148) Timothy Lynch, Fourth Amendment Protects All Citizens, Mar. 17, 2004, http:// www.foxnews.cum/printer_friendly_story/0,3566,114486,00.html (last visited Mar. 11, 2007).

(149) Id.

(150) Id.

(151) Thomas Y. Davies, Denying a Right by Disregarding Doctrine: How Illinois v. Rodriguez Demeans Consent, Trivializes Fourth Amendment Reasonableness, and Exaggerates the Excusability of Police Error, 59 TENN. L. REV. 1, 4 (1991).

(152) Georgia v. Randolph, 126 S. Ct. 1515, 1519 (2006).

(153) Id. at 1529.

(154) Id. at 1519.

(155) Id. at 1539 (Roberts, C. J., dissenting).

(156) Davies, supra note 151, at 100.

(157) Strauss, supra note 143, at 214.

(158) Randolph, 126 S. Ct. at 1528.

(159) Finch v. State, 479 So. 2d 1314, 1318 (Ala. Crim. App. 1985).

Nicholas S. Hines, B.S., University of Alabama; J.D. Candidate, Faulkner University Thomas Goode Jones School of Law.