TOPEKA POLICE DEPARTMENT	Number: LB 06-01
LEGAL BULLETIN
SUBJECT: CO-OCCUPANT CONSENT TO SEARCH
AMENDS:
STATUTE REFERENCES:
ISSUING AUTHORITY: John Knoll, City Attorney	DATE ISSUED: 10 April 2006

On March 22, 2006, the United States Supreme Court issued a decision that substantially limits the authority of police to enter and search a residence based on the consent of one co-occupant of the property. Although an occupant with apparent authority over common areas can give valid consent and the evidence can be used against an absent co-occupant, United States v. Matlock, 415 U.S. 164, 170 (1974), in Georgia v. Randolph, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 04-1067, filed 3/22/06), the court held that such evidence cannot be used against a co-occupant who is present and actually objects to the search. The court acted to protect the "centuries-old principle of respect for the privacy of the home." Randolph, slip opinion at 7.

Scott and Janet Randolph were married, but suffered some difficulties. Janet took her son and went to stay with her parents in Canada for a couple months. She and the son then returned to the marital residence, and two days later Janet called police for a domestic dispute. Janet told police that Scott used cocaine. Scott returned and said it was Janet who abused drugs and alcohol. Janet later told police there was drug stuff in the house. Officers sought permission to search from Scott, but he unequivocally denied consent. Janet gave consent, and officers saw, in Scott's bedroom, a drinking straw and a white powdery substance. The officers collected the plain view evidence and called the DA's office, who advised them to get a warrant. Janet then withdrew her consent. Officers took the Randolphs and the straw to the police station, and returned to the residence with a search warrant, seizing other drugs and paraphernalia. Scott was indicted for possession of cocaine, and moved to suppress the evidence claiming the initial consent search was illegal.

The United States Supreme Court, in a 5-3 decision, agreed. Distinguishing Matlock, the court held "a situation in which two persons have equal use and control of the premises to be searched, we conclude 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." The court reasoned that the apparent authority doctrine is premised on an assumption of risk theory, and that theory does not apply when the co-occupant is actually present and objects to the search.

The court suggested that instead of relying on the cooperative co-occupant's disputed consent, the police could instead rely upon the co-tenant's voluntary^[1] delivery of contraband to police, or rely on their information^[2] in order to obtain a search warrant to enter the residence. (continued on reverse)

How will the case affect officer's response to domestic disputes? While no hard and fast rule will apply to all situations, in a footnote, and later in the opinion, the court suggested that it did not intend to limit authority to enter when the life or limb of someone inside the residence is in jeopardy, provided that any search is "strictly circumscribed by the exigencies which justify its initiation." Randolph, slip opinion at 6 & fn. 3, 8.

The court also suggested that it did not intend to affect consent searches in a "recognized hierarchy, like a household of parent and child or barracks housing military personnel of different grades," noting that such relationships have a societal understanding of superior and inferior rights that doesn't exist in the normal domestic relationship. Randolph, slip opinion at 6.

Two days after the Randolph decision, the Kansas Supreme Court issued a similar opinion in State v. Porting, ___ Kan. ___, ___ P.3d ___ (No. 91631, filed 3/24/2005). In that case, a recently-released parolee consented to the search of a residence where he resided growing up and where his parole plan said he would reside when released. Upon his release after serving 18 months, the parolee had his parole officer accompany him to the residence, where his mother and ex-girlfriend resided, because of rumored drug use by his ex. The search of the ex-girlfriend and her current boyfriend's room yielded drugs. The defendants claimed that the parolee did not have authority to consent. The Kansas Supreme Court agreed, citing Randolph.

With these decisions in mind, I encourage officers to invite both halves of a domestic dispute out of the house and onto the front porch or yard for initial interviews. Such an approach has tactical advantages because it removes the participants from access to weapons inside the house, it removes the participants from their comfort zone, and it may prevent a barricaded suspect situation when one of the co-occupants refuses consent to enter the dwelling. If one half of the dispute gives officers a tip there is contraband inside the house, seek and document consent from both parties. If both parties do not consent, secure the parties outside the residence while seeking a search warrant without unreasonable delay.^[3]

Please advise if you have any questions about this bulletin.

jjk

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^[1]. The court noted that the cooperative co-tenant must be "acting on his own initiative." Randolph, slip opinion at 7. If the co-tenant is acting with the knowledge and at the encouragement of the police, they may become an agent of the government and are bound by the Fourth Amendment. See United States v. Lovell, 876 F.2d 787, (10th Cir. 1989); State v. Smith, 243 Kan. 715, 724, 763 P.2d 632 (1988), State v. Bohannon, 3 Kan. App.2d 448, 452, 596 P.2d 190, 194 (1979).

^[2]. But having this conversation in front of the "suspect" is a double-edged sword. If the suspect knows that police know of the presence of drugs, exigent circumstances may excuse a warrantless entry. Randolph, slip opinion at 7 & fn. 6. However, doing so may lead a court to conclude that the officer is trying to create his own exigent circumstances by tipping off the suspect, and lead to the suppression of evidence obtained. State v. Schur, 217 Kan. 741, 538 P.2d 689 (1975).

^[3]. Illinois v. McArthur, 531 U.S. 326, 331-32 (2001).