In Wednesday’s oral argument in Fernandez v. California, no party asked the Supreme Court to overturn Georgia v. Randolph. But the more I think about Fernandez, the more I think the issues in the case just point to the underlying problem with Randolph. In this post, I want to say a bit about why.
The core problem is that it’s very difficult to carve out exceptions from a general rule of third-party consent. Ordinarily, any person can consent to a police search of the space in which he lives, even if he shares that space with another person who may be a suspect and may not want the search to occur. All the Justices agree with that general rule. But once you take the leap and recognize the basic doctrine of third party consent, it becomes very hard to say that there is a set of circumstances in which that is not true.
It’s hard because of the nature of law enforcement. Police officers and police investigators work full time at solving crimes. Gathering evidence is their job, and that leads them to know the rules and use them to their advantage. So as soon as you recognize the usual default rule of third-party consent, you’re telling the police officers that they just need to wait until the usual default facts are present so they can then rely on the usual default rule of third-party consent. Even if some specific facts don’t allow consent, the officers can be patient. They can wait it out until the facts change. And they often can arrange the circumstances so that the facts will trigger the usual default rule.
This means that as soon as the Court declares a specific set of facts that are exempted from the usual rule [...]