A.                 Opening Statement

The Atlanta Police Department places the highest value upon the preservation of civil liberties of all citizens.  Adherence to the information contained in this training issue will ensure compliance with the provisions of the recent Georgia Supreme Court decision concerning consent searches.

B.                BODY

Historical Background

An effective technique in crime prevention and solving is the use of consent searches.  When properly requested and documented, a consent search is a valuable addition to the tools law enforcement professionals utilizes in his/her daily routine.

The Georgia State Supreme Court has limited the scope of warrantless searches when one party agrees and another party does not agree to a consent search. 

C.        S04G0674:  The State v. Randolph 

1.                  The Fourth Amendment to the United States Constitution states:

“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.

2.         A recognized exception to the Fourth Amendment’s requirement for a warrant is the consent search.  Historically, if one party having a recognized reasonable expectation of privacy (REP) consents to a search, the search and all fruits of criminal activity was generally supported by courts.  The case of The State v. Randolph has set new guidelines concerning this authority to search.

3.         The following is a summary of the State Supreme Court’s ruling:

Note:  The following case deals with the request for a consent search when one party agrees and the other party does not agree with the search.  It does not require that permission be obtained from another party if both are not present at the time.

                                    S04G0674 The State v. Randolph

By a 4-3 vote, the Supreme Court has affirmed the Court of Appeals of Georgia in The State v. Randolph, S04G0674, holding that in “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.”

Justice Robert Benham authored the majority opinion to which Justices Hunstein, Carley and Hines dissented.

The Court found that appellant objected to the search of his residence and filed a “motion to suppress evidence seized from his home in a warrantless search conducted by law enforcement officers pursuant to permission given by Randolph’s wife.” After the trial court in Sumter County denied the motion, Randolph appealed and “[t]he Court of Appeals determined the motion to suppress should have been granted.” This Court granted the State’s petition for certiorari.

In the dissent, Justice Hunstein argues that the Court should “embrace the principles recognized in Matlock to look not to the defendant's presence or absence but to whether or not he assumed the risk that the third party who possessed common authority over the premises would permit inspection in his own right.” Therefore, “even though Randolph was present and objected, once Randolph's wife gave valid consent to the search of the home she shared with Randolph, that was sufficient to authorize the search. 

D.        Summary

The court heard an argument from the defendant’s attorney’s concerning the lawfulness of a consent search when one party does not agree to the search without a warrant. 

In a split decision the high court agreed with the defendant and reversed the conviction stating that when both are present, both parties must consent to the warrantless search.  
 

E.        Key Point Summary

§         The Fourth Amendment requires that a predetermination of probable cause be conducted prior to the issuance of a warrant to search for evidence of a crime.

§         Several exceptions to the requirement for a warrant exist.  One exception to having a warrant prior to a search is requesting consent to search a person’s home or other personal property.

§         This court ruling limits the ability to obtain a consent search when one party objects to the search.  A search warrant will be required when this situation is encountered.