A Supreme Stumble

Article excerpt

Byline: Bruce Fein, SPECIAL TO THE WASHINGTON TIMES

Oliver Twist's Mr. Bumble had the proper retort to last week's Supreme Court ruling in Georgia v. Randolph that while an occupant of a dwelling can consent to a police search when a co-occupant is napping or preoccupied with video games, an occupant cannot give consent if the co-inhabitant is physically present and objects: "If the law believes that, the law is a ass, a idiot."

The Fourth Amendment prohibits "unreasonable" searches or seizures. The unreasonableness standard strikes an elusive balance between law enforcement and reasonable expectations of privacy. There is no social value in frustrating law enforcement for its own sake. The police are circumscribed to protect spontaneity and a right to be left alone from government bumptiousness. A population might be cowed if the police could search without probable cause to suspect wrongdoing.

The Fourth Amendment is undisturbed by the knowing and voluntary consent of an individual to search his home or person. Law enforcement is boosted, while intelligent consent answers fears of government overreaching.

The law is equally clear that an individual may give knowing and voluntary consent to intercept conversations with others or to search a jointly used duffel bag. Worries of an oppressive police are not implicated. Betrayals among intimates are always a risk. Iagos are more plentiful than Sidney Cartons.

In United States v. White (1971), the Court held that one party to a conversation can consent to government eavesdropping without violating the other's reasonable expectation of privacy. The Court amplified: "Inescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police. ... [I]f he has no doubts, or allays them, or risks what doubt he has, the risk is his." Similarly, in Frazier v. Cupp (1969), the Court held that the consent of one cousin to search a jointly used duffel bag was effective as to both cousins: "[I]n allowing [his cousin] to use the bag and in leaving it in his house, [the defendant] must be taken to have assumed the risk that [his cousin] would allow someone else to look inside."

The Court has not skewed its consent analysis for the home. In Coolidge v. New Hampshire (1971), Mrs. Coolidge retrieved four of her husband's guns and clothes and handed them to the police. The Court found no Fourth Amendment infraction. An occupant always risks a co-occupant's search of commonly shared premises for evidence of crime and cooperation with the police.

In United States v. Matlock (1974), the police arrested Matlock in the front yard of a house. He was placed in a nearby squad car. Mrs. Graff was then approached for permission to search a shared bedroom for evidence of the arrestee's bank robbery. Her acquiescence held was effective as to her co-occupant. The holding was similar in Illinois v. …