ROBERTS, C. J., DISSENTING
GEORGIA V. RANDOLPH
547 U. S. ____ (2006)
SUPREME COURT OF THE UNITED STATES
NO. 04-1067
GEORGIA, PETITIONER
v. SCOTT FITZ
RANDOLPH
on writ of certiorari to the supreme court of
georgia
[March 22, 2006]
Chief Justice Roberts, with whom
Justice Scalia joins, dissenting.
The Court creates constitutional
law by surmising what is typical when a social guest encounters an
entirely atypical situation. The rule the majority fashions does
not implement the high office of the Fourth Amendment to protect
privacy, but instead provides protection on a random and
happenstance basis, protecting, for example, 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. And the cost of affording such random protection is great, as
demonstrated by the recurring cases in which abused spouses seek to
authorize police entry into a home they share with a nonconsenting
abuser.
The correct approach to the question presented
is clearly mapped out in our precedents: The Fourth Amendment
protects privacy. If an individual shares information, papers,
or places with another, he assumes the risk that the other
person will in turn share access to that information or those
papers
or places with the government. And just as an
individual who has shared illegal plans or incriminating documents
with another cannot interpose an objection when that other person
turns the information over to the government, just because the
individual happens to be present at the time, so too someone who
shares a place with another cannot interpose an objection when that
person decides to grant access to the police, simply because the
objecting individual happens to be present.
A warrantless search is reasonable if police
obtain the voluntary consent of a person authorized to give it.
Co-occupants have “assumed the risk that one of their number might
permit [a] common area to be searched.”
United States v.
Matlock, 415 U. S. 164, 171, n. 7 (1974).
Just as Mrs. Randolph could walk upstairs, come down, and turn her
husband’s cocaine straw over to the police, she can consent to
police entry and search of what is, after all, her home, too.
I
In
Illinois v.
Rodriguez,
497 U. S. 177 (1990),
this Court stated that “[w]hat [a person] is assured by the Fourth
Amendment … is not that no government search of his house will
occur unless he consents; but that no such search will occur that
is ‘unreasonable.’ ”
Id., at 183. One element that
can make a warrantless government search of a home
“ ‘reasonable’ ” is voluntary consent.
Id., at
184;
Schneckloth v.
Bustamonte, 412 U. S. 218, 219
(1973). Proof of voluntary consent “is not limited to proof that
consent was given by the defendant,” but the government “may show
that permission to search was obtained from a third party who
possessed common authority over or other sufficient relationship to
the premises.”
Matlock,
supra, at 171. Today’s
opinion creates an exception to this otherwise clear rule: A
third-party consent search is unreasonable, and therefore
constitutionally impermissible, if the co-occupant against whom
evidence is obtained was present and objected to the entry and
search.
This exception is based on what
the majority describes as “widely shared social expectations” that
“when people living together disagree over the use of their common
quarters, a resolution must come through voluntary accommodation.”
Ante, at 6, 9. But this fundamental predicate to the
majority’s analysis gets us nowhere: Does the objecting cotenant
accede to the consenting cotenant’s wishes, or the other way
around? The majority’s assumption about voluntary accommodation
simply leads to the common stalemate of two gentlemen insisting
that the other enter a room first.
Nevertheless, the majority is confident in
assuming—confident enough to incorporate its assumption into the
Constitution—that an invited social guest who arrives at the door
of a shared residence, and is greeted by a disagreeable co-occupant
shouting “ ‘stay out,’ ” would simply go away.
Ante, at 8. The Court observes that “no sensible person
would go inside under those conditions,”
ante, at 8–9, and
concludes from this that the inviting co-occupant has no
“authority” to insist on getting her way over the wishes of her
co-occupant,
ante, at 10. But it seems equally accurate to
say—based on the majority’s conclusion that one does not have a
right to prevail over the express wishes of his co-occupant—that
the objector has no “authority” to insist on getting
his
way over his co-occupant’s wish that her guest be admitted.
The fact is that a wide variety of differing
social situations can readily be imagined, giving rise to quite
different social expectations. A relative or good friend of one of
two feuding roommates might well enter the apartment over the
objection of the other roommate. The reason the invitee appeared at
the door also affects expectations: A guest who came to celebrate
an occupant’s birthday, or one who had traveled some distance for a
particular reason, might not readily turn away simply because of a
roommate’s objection. The nature of the place itself is also
pertinent: Invitees may react one way if the feuding roommates
share one room, differently if there are common areas from which
the objecting roommate could readily be expected to absent himself.
Altering the numbers might well change the social expectations:
Invitees might enter if two of three co-occupants encourage them to
do so, over one dissenter.
The possible scenarios are limitless, and
slight variations in the fact pattern yield vastly different
expectations about whether the invitee might be expected to enter
or to go away. Such shifting expectations are not a promising
foundation on which to ground a constitutional rule, particularly
because the majority has no support for its basic assumption—that
an invited guest encountering two disagreeing co-occupants would
flee—beyond a hunch about how people would typically act in an
atypical situation.
And in fact the Court has not looked to such
expectations to decide questions of consent under the Fourth
Amendment, but only to determine when a search has occurred and
whether a particular person has standing to object to a search. For
these latter inquiries, we ask whether a person has a subjective
expectation of privacy in a particular place, and whether “the
expectation [is] one that society is prepared to recognize as
‘reasonable.’ ”
Katz v.
United States,
389 U. S. 347,
361 (1967) (Harlan, J., concurring); see
Minnesota v.
Olson, 495
U. S. 91, 95–96, 100 (1990) (extending
Katz test to
standing inquiry). But the social expectations concept has not been
applied to all questions arising under the Fourth Amendment, least
of all issues of consent. A criminal might have a strong
expectation that his longtime confidant will not allow the
government to listen to their private conversations, but however
profound his shock might be upon betrayal, government monitoring
with the confidant’s consent is reasonable under the Fourth
Amendment. See
United States v.
White,
401 U. S. 745, 752
(1971).
The majority suggests that “widely shared
social expectations” are a “constant element in assessing Fourth
Amendment reasonableness,”
ante, at 6 (citing
Rakas v.
Illinois, 439 U. S. 128, 144,
n. 12 (1978)), but that is not the case; the Fourth Amendment
precedents the majority cites refer instead to a “legitimate
expectation of
privacy.”
Ibid. (emphasis added;
internal quotation marks omitted). Whatever social expectation the
majority seeks to protect, it is not one of privacy. The very
predicate giving rise to the question in cases of shared
information, papers, containers, or places is that privacy has been
shared with another. Our common social expectations may well be
that the other person will not, in turn, share what we have shared
with them with another—including the police—but that is the risk we
take in sharing. If two friends share a locker and one keeps
contraband inside, he might trust that his friend will not let
others look inside. But by sharing private space, privacy has
“already been frustrated” with respect to the lockermate.
United States v.
Jacobsen,
466 U. S. 109, 117
(1984). If two roommates share a computer and one keeps pirated
software on a shared drive, he might assume that his roommate will
not inform the government. But that person has given up his privacy
with respect to his roommate by saving the software on their shared
computer.
A wide variety of often subtle social
conventions may shape expectations about how we act when another
shares with us what is otherwise private, and those conventions go
by a variety of labels—courtesy, good manners, custom, protocol,
even honor among thieves. The Constitution, however, protects not
these but privacy, and once privacy has been shared, the shared
information, documents, or places remain private only at the
discretion of the confidant.
II
Our cases reflect this
understanding. In
United States v.
White, we held
that one party to a conversation can consent to government
eavesdropping, and statements made by the other party will be
admissible at trial. 401 U. S., at 752. This rule is based on
privacy: “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.”
Ibid.
The Court has applied this
same analysis to objects and places as well. In Frazier v.
Cupp, 394
U. S. 731 (1969), a duffel bag “was being used jointly” by two
cousins.
Id., at 740. The Court held that the consent of
one was effective to result in the seizure of evidence used against
both: “[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.”
Ibid.
As the Court explained in
United
States v.
Jacobsen,
supra:
“It is well settled that when an individual
reveals private information to another, he assumes the risk that
his confidant will reveal that information to the authorities, and
if that occurs the Fourth Amendment does not prohibit governmental
use of that information. Once frustration of the original
expectation of privacy occurs, the Fourth Amendment does not
prohibit governmental use of the now nonprivate information: ‘This
Court has held repeatedly that the Fourth Amendment does not
prohibit the obtaining of information revealed to a third party and
conveyed by him to Government authorities, even if the information
is revealed on the assumption that it will be used only for a
limited purpose and the confidence placed in a third party will not
be betrayed.’ ” Id., at 117 (quoting
United
States v.
Miller, 425 U. S. 435, 443
(1976)).
The same analysis applies to the
question whether our privacy can be compromised by those with whom
we share common living space. If a person keeps contraband in
common areas of his home, he runs the risk that his co-occupants
will deliver the contraband to the police. In
Coolidge v.
New Hampshire, 403 U. S. 443 (1971),
Mrs. Coolidge retrieved four of her husband’s guns and the clothes
he was wearing the previous night and handed them over to police.
We held that these items were properly admitted at trial because
“when Mrs. Coolidge of her own accord produced the guns and clothes
for inspection, … it was not incumbent on the police to stop her or
avert their eyes.”
Id., at 489.
Even in our most private relationships, our
observable actions and possessions are private at the discretion of
those around us. A husband can request that his wife not tell a
jury about contraband that she observed in their home or illegal
activity to which she bore witness, but it is she who decides
whether to invoke the testimonial marital privilege.
Trammel v.
United States, 445 U. S. 40, 53 (1980).
In
Trammel, we noted that the former rule prohibiting a
wife from testifying about her husband’s observable wrongdoing at
his say so “goes far beyond making ‘every man’s house his castle,’
and permits a person to convert his house into ‘a den of
thieves.’ ”
Id., at 51–52 (quoting 5 J. Bentham,
Rationale of Judicial Evidence 340 (1827)).
There is no basis for evaluating physical
searches of shared space in a manner different from how we
evaluated the privacy interests in the foregoing cases, and in fact
the Court has proceeded along the same lines in considering such
searches. In
Matlock, police arrested the defendant in the
front yard of a house and placed him in a squad car, and then
obtained permission from Mrs. Graff to search a shared bedroom for
evidence of Matlock’s bank robbery. 415 U. S., at 166. Police
certainly could have assumed that Matlock would have objected were
he consulted as he sat handcuffed in the squad car outside. And in
Rodriguez, where Miss Fischer offered to facilitate the
arrest of her sleeping boyfriend by admitting police into an
apartment she apparently shared with him, 497 U. S., at 179, police
might have noted that this entry was undoubtedly contrary to
Rodriguez’s social expectations. Yet both of these searches were
reasonable under the Fourth Amendment because Mrs. Graff had
authority, and Miss Fischer apparent authority, to admit others
into areas over which they exercised control, despite the almost
certain wishes of their
present co-occupants.
The common thread in our decisions upholding
searches conducted pursuant to third-party consent is an
understanding that a person “assume[s] the risk” that those who
have access to and control over his shared property might consent
to a search.
Matlock, 415 U. S., at 171, n. 7. In
Matlock, we explained that this assumption of risk is
derived from a third party’s “joint access or control for most
purposes” of shared property.
Ibid. And we concluded that
shared use of property makes it “reasonable to recognize that any
of the co-inhabitants has the right to permit the inspection in his
own right.”
Ibid.
In this sense, the risk assumed by a joint
occupant is comparable to the risk assumed by one who reveals
private information to another. If a person has incriminating
information, he can keep it private in the face of a request from
police to share it, because he has that right under the Fifth
Amendment. If a person occupies a house with incriminating
information in it, he can keep that information private in the face
of a request from police to search the house, because he has that
right under the Fourth Amendment. But if he shares the
information—or the house—with another, that other can grant access
to the police in each instance.[
Footnote 1]
To the extent a person wants to ensure that
his possessions will be subject to a consent search only due to his
own consent, he is free to place these items in an area
over which others do
not share access and control, be it a
private room or a locked suitcase under a bed. Mr. Randolph
acknowledged this distinction in his motion to suppress, where he
differentiated his law office from the rest of the Randolph house
by describing it as an area that “was solely in his control and
dominion.” App. 3. As to a “common area,” however, co-occupants
with “joint access or control” may consent to an entry and search.
Matlock,
supra, at 171, n. 7.
By emphasizing the objector’s presence and
noting an occupant’s understanding that obnoxious guests might “be
admitted in [one’s] absence,”
ante, at 7, the majority
appears to resurrect an agency theory of consent suggested in our
early cases. See
Stoner v.
California,
376 U. S. 483, 489
(1964) (stating that a hotel clerk could not consent to a search of
a guest’s room because the guest had not waived his rights “by word
or deed, either directly or through an agent”);
Chapman v.
United States,
365 U. S. 610, 616–617
(1961). This agency theory is belied by the facts of
Matlock and
Rodriguez—both defendants were
present but simply not asked for consent—and the Court made clear
in those cases that a co-occupant’s authority to consent rested not
on an absent occupant’s delegation of choice to an agent, but on
the consenting co-occupant’s “joint access or control” of the
property.
Matlock,
supra, at 171, n. 7; see
Rodriguez,
supra, at 181;
United States
v.
McAlpine, 919 F. 2d 1461, 1464, n. 2 (CA10
1990) (“[A]gency analysis [was] put to rest by the Supreme Court’s
reasoning in
Matlock”).
The law acknowledges that although we might
not expect our friends and family to admit the government into
common areas, sharing space entails risk. A person assumes the risk
that his co-occupants—just as they might report his illegal
activity or deliver his contraband to the government—might consent
to a search of areas over which they have access and control. See
United States v.
Karo, 468 U. S. 705, 726
(1984) (O’Connor, J., concurring in part and concurring in
judgment) (finding it a “relatively easy case … when two persons
share identical, overlapping privacy interests in a particular
place, container, or conversation. Here
both share the
power to surrender each other’s privacy to a third party”).
III
The majority states its rule as
follows: “[A] warrantless search of a shared dwelling for evidence
over the express refusal of consent by a physically present
resident cannot be justified as reasonable as to him on the basis
of consent given to the police by another resident.”
Ante,
at 15–16.
Just as the source of the
majority’s rule is not privacy, so too the interest it protects
cannot reasonably be described as such. That interest is not
protected if a co-owner happens to be absent when the police
arrive, in the backyard gardening, asleep in the next room, or
listening to music through earphones so that only his co-occupant
hears the knock on the door. That the rule is so random in its
application confirms that it bears no real relation to the privacy
protected by the Fourth Amendment. What the majority’s rule
protects is not so much privacy as the good luck of a co-owner who
just happens to be present at the door when the police arrive.
Usually when the development of Fourth Amendment jurisprudence
leads to such arbitrary lines, we take it as a signal that the
rules need to be rethought. See
California v.
Acevedo, 500 U. S. 565, 574, 580
(1991). We should not embrace a rule at the outset that its
sponsors appreciate will result in drawing fine,
formalistic lines. See
ante, at 17.
Rather than draw such random and happenstance
lines—and pretend that the Constitution decreed them—the more
reasonable approach is to adopt a rule acknowledging that shared
living space entails a limited yielding of privacy to others, and
that the law historically permits those to whom we have yielded our
privacy to in turn cooperate with the government. Such a rule flows
more naturally from our cases concerning Fourth Amendment
reasonableness and is logically grounded in the concept of privacy
underlying that Amendment.
The scope of the majority’s rule is not only
arbitrary but obscure as well. The majority repeats several times
that a present co-occupant’s refusal to permit entry renders the
search unreasonable and invalid “as to him.”
Ante, at 1,
15–16, 18. This implies entry and search would be reasonable “as
to” someone else, presumably the consenting co-occupant and any
other absent co-occupants. The normal Fourth Amendment rule is that
items discovered in plain view are admissible if the officers were
legitimately on the premises; if the entry and search were
reasonable “as to” Mrs. Randolph, based on her consent, it is not
clear why the cocaine straw should not be admissible “as to” Mr.
Randolph, as discovered in plain view during a legitimate search
“as to” Mrs. Randolph. The majority’s differentiation between entry
focused on discovering whether domestic violence has occurred (and
the consequent authority to seize items in plain view), and entry
focused on searching for evidence of other crime, is equally
puzzling. See
ante, at 13–14. This Court has rejected
subjective motivations of police officers in assessing Fourth
Amendment questions, see
Whren v.
United States,
517 U. S. 806,
812–813 (1996), with good reason: The police do not need a
particular reason to ask for consent to search, whether for signs
of domestic violence or evidence of drug possession.
While the majority’s rule protects something
random, its consequences are particularly severe. The question
presented often arises when innocent cotenants seek to disassociate
or protect themselves from ongoing criminal activity. See,
e.g., United States v.
Hendrix, 595
F. 2d 883, 884 (CADC 1979) (wife asked police “to get her baby
and take [a] sawed-off shotgun out of her house”);
People
v.
Cosme, 48 N. Y. 2d 286, 288–289, 293, 397
N. E. 2d 1319, 1320, 1323 (1979) (woman asked police to remove
cocaine and a gun from a shared closet);
United States v.
Botsch, 364 F. 2d 542, 547 (CA2 1966). Under the
majority’s rule, there will be many cases in which a consenting
co-occupant’s wish to have the police enter is overridden by an
objection from another present co-occupant. What does the majority
imagine will happen, in a case in which the consenting co-occupant
is concerned about the other’s criminal activity, once the door
clicks shut? The objecting co-occupant may pause briefly to decide
whether to destroy any evidence of wrongdoing or to inflict
retribution on the consenting co-occupant first, but there can be
little doubt that he will attend to both in short order. It is no
answer to say that the consenting co-occupant can depart with the
police; remember that it is her home, too, and the other
co-occupant’s very presence, which allowed him to object, may also
prevent the consenting co-occupant from doing more than urging the
police to enter.
Perhaps the most serious consequence of the
majority’s rule is its operation in domestic abuse situations, a
context in which the present question often arises. See
Rodriguez, 497 U. S., at 179;
United States v.
Donlin, 982 F. 2d 31 (CA1 1992);
Hendrix,
supra; People v.
Sanders, 904 P. 2d 1311
(Colo. 1995) (en banc);
Brandon v.
State, 778
P. 2d 221 (Alaska App. 1989). While people living together
might typically be accommodating to the wishes of their cotenants,
requests for police assistance may well come from coinhabitants who
are having a disagreement. The Court concludes that because “no
sensible person would go inside” in the face of disputed consent,
ante, at 8–9, and the consenting cotenant thus has “no
recognized authority” to insist on the guest’s admission,
ante, at 10, a “police officer [has] no better claim to
reasonableness in entering than the officer would have in the
absence of any consent at all,”
ibid. But the police
officer’s superior claim to enter is obvious: Mrs. Randolph did not
invite the police to join her for dessert and coffee; the officer’s
precise purpose in knocking on the door was to assist with a
dispute between the Randolphs—one in which Mrs. Randolph felt the
need for the protective presence of the police. The majority’s rule
apparently forbids police from entering to assist with a domestic
dispute if the abuser whose behavior prompted the request for
police assistance objects.[
Footnote
2]
The majority acknowledges these concerns, but
dismisses them on the ground that its rule can be expected to give
rise to exigent situations, and police can then rely on an exigent
circumstances exception to justify entry.
Ante, at 12,
n. 6. This is a strange way to justify a rule, and the fact
that alternative justifications for entry might arise does not show
that entry pursuant to consent is unreasonable. In addition, it is
far from clear that an exception for emergency entries suffices to
protect the safety of occupants in domestic disputes. See,
e.g., United States v.
Davis, 290
F. 3d 1239, 1240–1241 (CA10 2002) (finding no exigent
circumstances justifying entry when police responded to a report of
domestic abuse, officers heard no noise upon arrival, defendant
told officers that his wife was out of town, and wife then appeared
at the door seemingly unharmed but resisted husband’s efforts to
close the door).
Rather than give effect to a consenting
spouse’s authority to permit entry into her house to avoid such
situations, the majority again alters established Fourth Amendment
rules to defend giving veto power to the objecting spouse. In
response to the concern that police might be turned away under its
rule before entry can be justified based on exigency, the majority
creates a new rule: A “good reason” to enter, coupled with one
occupant’s consent, will ensure that a police officer is “lawfully
in the premises.”
Ante, at 13, 14. As support for this
“consent plus a good reason” rule, the majority cites a treatise,
which itself refers only to
emergency entries.
Ante, at 14 (citing 4 W. LaFave, Search and Seizure
§8.3(d), p. 161 (4th ed. 2004)). For the sake of defending what it
concedes are fine, formalistic lines, the majority spins out an
entirely new framework for analyzing exigent circumstances. Police
may now enter with a “good reason” to believe that “violence (or
threat of violence) has just occurred or is about to (or soon will)
occur.”
Ante, at 13–14. And apparently a key factor
allowing entry with a “good reason” short of exigency is the very
consent of one co-occupant the majority finds so inadequate in the
first place.
The majority’s analysis alters a great deal of
established Fourth Amendment law. The majority imports the concept
of “social expectations,” previously used only to determine when a
search has occurred and whether a particular person has standing to
object to a search, into questions of consent.
Ante, at 6,
8. To determine whether entry and search are reasonable, the
majority considers a police officer’s subjective motive in asking
for consent, which we have otherwise refrained from doing in
assessing Fourth Amendment questions.
Ante, at 13–14. And
the majority creates a new exception to the warrant requirement to
justify warrantless entry short of exigency in potential domestic
abuse situations.
Ibid.
Considering the majority’s rule is solely
concerned with protecting a person who happens to be present at the
door when a police officer asks his co-occupant for consent to
search, but not one who is asleep in the next room or in the
backyard gardening, the majority has taken a great deal of pain in
altering Fourth Amendment doctrine, for precious little (if any)
gain in privacy. Perhaps one day, as the consequences of the
majority’s analytic approach become clearer, today’s opinion will
be treated the same way the majority treats our opinions in
Matlock and
Rodriguez—as a “loose end” to be tied
up.
Ante, at 17.
One of the concurring opinions states that if
it had to choose between a rule that a cotenant’s consent was valid
or a rule that it was not, it would choose the former.
Ante, at 1 (opinion of Breyer, J.). The concurrence
advises, however, that “no single set of legal rules can capture
the ever changing complexity of human life,”
ibid., and
joins what becomes the majority opinion, “[g]iven the case-specific
nature of the Court’s holding,”
ante, at 3. What the
majority establishes, in its own terms, is “
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.”
Ante, at 18 (emphases
added). The concurrence joins with the apparent “understandin[g]”
that the majority’s “rule” is not a rule at all, but simply a
“case-specific” holding.
Ante, at 3 (opinion of
Breyer, J.). The end result is a complete lack of practical
guidance for the police in the field, let alone for the lower
courts.
* * *
Our third-party consent cases
have recognized that a person who shares common areas with others
“assume[s] the risk that one of their number might permit the
common area to be searched.”
Matlock, 415 U. S., at 171,
n. 7. The majority reminds us, in high tones, that a man’s
home is his castle,
ante, at 10, but even under the
majority’s rule, it is not his castle if he happens to be absent,
asleep in the keep, or otherwise engaged when the constable arrives
at the gate. Then it is his co-owner’s castle. And, of course, it
is not his castle if he wants to consent to entry, but his co-owner
objects. Rather than constitutionalize such an arbitrary rule, we
should acknowledge that a decision to share a private place, like a
decision to share a secret or a confidential document, necessarily
entails the risk that those with whom we share may in turn choose
to share—for their own protection or for other reasons—with the
police.
I respectfully dissent.
Footnote 1
The majority considers this comparison to be
a “false equation,” and even discerns “a deliberate intent to
devalue the importance of the privacy of a dwelling place.”
Ante, at 10–11, n. 4. But the differences between the
majority and this dissent reduce to this: Under the majority’s
view, police may not enter and search when an objecting co-occupant
is
present at the door, but they
may do so when
he is asleep in the next room; under our view, the co-occupant’s
consent is effective in both cases. It seems a bit overwrought to
characterize the former approach as affording great protection to a
man in his castle, the latter as signaling that “the centuries of
special protection for the privacy of the home are over.”
Ibid. The Court in
United States v.
Matlock,
415 U. S. 164 (1974), drew the same
comparison the majority faults today, see
id., at 171,
n. 7, and the “deliberate intent” the majority ascribes to
this dissent is apparently shared by all Courts of Appeals and the
great majority of State Supreme Courts to have considered the
question, see
ante, at 4, n. 1.
The majority also mischaracterizes this
dissent as assuming that “privacy shared with another individual is
privacy waived for all purposes including warrantless searches by
the police.”
Ante, at 11, n. 4. The point, of course,
is not that a person waives his privacy by sharing space with
others such that police may enter at will, but that sharing space
necessarily entails a limited yielding of privacy
to the person
with whom the space is shared, such that the other person
shares authority to consent to a search of the shared space. See
supra, at 2, 5–10.
Footnote 2
In response to this concern, the majority
asserts that its rule applies “merely [to] evidentiary searches.”
Ante, at 14. But the fundamental premise of the majority’s
argument is that an inviting co-occupant has “no recognized
authority” to “open the door” over a co-occupant’s objection.
Ante, at 10; see also
ante, at 1 (“[A] physically
present co-occupant’s stated refusal to permit
entry
prevails, rendering the warrantless search unreasonable and invalid
as to him” (emphasis added));
ante, at 8 (“[A] caller
standing at the door of shared premises would have no confidence …
to
enter when a fellow tenant stood there saying ‘stay
out’ ” (emphasis added));
ante, at 10 (“[A] disputed
invitation, without more, gives a police officer no … claim to
reasonableness in
entering” (emphasis added)). The point
is that the majority’s rule transforms what may have begun as a
request for consent to conduct an evidentiary search into something
else altogether, by giving veto power over the consenting
co-occupant’s wishes to an occupant who would exclude the police
from
entry. The majority would afford the now quite
vulnerable consenting co-occupant sufficient time to gather her
belongings and leave, see
ante, at 13, apparently putting
to one side the fact that it is her castle, too.
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