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More on Georgia v. Randolph:
Tom Goldstein posted an interesting comment last night in response to my earlier discussion of third-party consent in Fourth Amendment law, and I wanted to both highlight the comment and respond to it. Here is the main part of Tom's comment, with paragraph breaks added for clarity:
  Having argued Randolph today, I thought it would be worth mentioning why I think that the dichotomy [Orin] draws between reasonable expectations of privacy and the reasonableness of the search is doesn't quite hold in the context of third-party consent, even if it holds elsewhere.
  For example, Orin is quite right that even if you have an "expectation of privacy," a search pursuant to a warrant will be "reasonable." Consent, however, is different - the theory of consent searches is that the individual "voluntarily relinquishes" or even "waives" his privacy interests (though it isn't subject to the "knowing waiver" requirement applicable to trial rights), which is very close to saying that he has no "expectation of privacy." A principle rationale of these third-party cases from Frazier to Matlock to Rodriguez, in particular, is that the search is "reasonable" because the defendant has "assumed the risk" that his co-tenant would admit the police. That "assumption of the risk" rationale, if not a perfect parallel to "expectations of privacy," is its near-twin.
  If Scott Randolph had the "expectation" of privacy that his objection would be honored it is hard to say that he "assumed the risk," or at least assumed a reasonable risk. . . .
  I don't think that's right, and I wanted to explain why. As I see it, suspect consent and third-party consent are very different animals. In the case of suspect consent, the individual voluntarily gives up his privacy rights. In such cases, valid consent and waiver of a "reasonable expectation of privacy" do indeed blend together. But third-party consent cases are very different. In these cases, the defendant necessarily has a reasonable expectation of privacy in the place to be searched. The defendant isn't waiving or voluntarily relinquishing his privacy rights; he often won't even know that the search is occurring.

  The closest cousin of third-party consent in Fourth Amendment law isn't defendant consent, but rather the private search doctrine. The Fourth Amendment does not regulate private party searches at all; if a burglar breaks into your house, searches your stuff, and sends the police what he finds, it can't violate the Fourth Amendment. Third-party consent doctrine offers a modified version of this rule: it allows third parties to let the police in wherever they have "common authority." The thinking is that the third party who consents to the search is a private party who could conduct a private search himself. So long as the search is limited to the realm of the third party's common authority, the thinking goes, consent by private third parties simply recognizes that private parties have shared rights to control private spaces.

  What's the role of "assumption of the risk" analysis in this inquiry? Nothing direct, I think. "Assumption of the risk" articulates a result, not a rationale. It has no independent meaning. A defendant "assumes the risk" whenever he has no rights to object to a government search; if he has a right to object, then he has not assumed the risk. The question is always why a person must assume the risk, which in turn has to be based on some principle of when a third party can validly consent to a government search. (Some scholars have written of an "assumption of the risk doctrine" in Fourth Amendment law, but I tend to think that this is a rather unsympathetic characterization of a series of cases that most law professors consider insufficiently privacy-protective.)

  One related issue that might shed some light on these topics is understanding when a person has a reasonable expectation of privacy in their shared spaces. The basic rule is that sharing a space with someone does not in any way relinquish a reasonable expectation of privacy there. So long as that space is not open to the world, a person retains full privacy rights in their shared spaces. See, e.g., Mancusi v. DeForte, 392 U.S. 364, 369-70 (1968) (Harlan, J.) (holding that a defendant has a reasonable expectation of privacy in shared workspace).** A "reasonable expectation of privacy" is eliminated in the space only when the space is open to the world. See Maryland v. Macon, 472 U.S. 463, 469 (1985)(O'Connor, J.) (holding that an officer's entry into public areas of a store does not violate a reasonable expectation of privacy). As a result, a defendant will always have a reasonable expectation of privacy in third-party consent cases. The proper issue is when third-party consent makes a search reasonable, not whether the defendant has a "reasonable expectation of privacy" in the space searched.

  ** Privacy in government workplaces presents a very different picture; as explained in detail here, the Court has created a special REP test for government employee space, and no third-party consent doctrine applies there.

  UPDATE: Tom Goldstein and I each have additional thoughts in the comment thread.
Tom Goldstein (mail) (www):
I really appreciate Orin's willingness to carry forward this discussion and, as always, find his thoughts very interesting, as you would expect given his expertise in the field and thoughtfulness.

My principal reaction to this post is that it seems to describe the state of the law as Orin would frame it rather than the way the Supreme Court has articulated it. For example, so far as I know, the Court has never drawn an analogy between third-party consent and private-party consent.

The cases that the Court has decided seem to support rather strongly my understanding that third-party consent does involve an assessment of the intrustion on the non-consenting party's expectations of privacy, I think. Among other things, the "assumption of the risk" language comes from Frazier v. Cupp, where the Court focuses (and later reiterates in Matlock) on the fact that the defendant left the bag at the home of its co-owner. I take that to mean that it was that step that represented an "assumption of the risk." In Matlock and Rodriguez, the defendant assumes a risk by not objecting to the search.

I also don't quite see the dichotomy Orin draws between third-party consent (as the individual retaining a "reasonable expectation of privacy") and first-party consent (as the individual losing it). Purely as a doctrinal matter, even if first-party consent, the individual retains that expectation (and has the ability to assert a Fourth Amendment claim), but the balancing of privacy and law enforcement interests is just very different because he has waived his privacy *interests*. Also, as a matter of doctrine or common sense, why are the police the equivalent of a burglar in the third-party consent context? The non-consenting defendant has a distinct privacy interest in the premises (see Rakas v. Illinois) upon which the police are intruding. That search is "reasonable" only if the balance of privacy and law enforcement interests favors the government. In the third-party consent cases, it seems that the reduced privacy interests come from an "assumption of the risk," which doesn't seem to be present if you stand in the doorway and object.

I also hurry to reiterate most importantly that the Supreme Court absolutely could adopt Orin's way of looking at this problem, but I do not that a very solid majority (on the framework question, without the prejudging the outcome) seemed to be taking a different approach.
11.9.2005 10:13pm
OrinKerr:
Tom,

Very interesting stuff. A few quick thoughts:

1) I agree that the Court has often referred to assuming the risk in its third-party consent cases. My point is that this reflects a consequence of the Court's conclusion that the consent is valid, not a reason why the consent is valid. A defendant always assumes the risk that a third party will give legally valid consent. The underlying question remains, why is the third-party consent valid?

2) I don't think it's exactly accurate to say that "the police [are] the equivalent of a burglar in the third-party consent context." The Court has limited third-party consent to circumstances in which the private party has "common authority" to avoid that kind of circumvention of Fourth Amendment rights. See, e.g., Stoner v. California (1964) (hotel clerk can't consent to government search of guest's space).

3) Finally, I'm not sure it works to use a general balancing test to determine reasonablenes in this consent. The Court has used a balancing test for reasonableness in some circumstances, but off the top of my head I'm not thinking of any third party consent cases in which the Court tried to draw an explicit law enforcement vs. privacy balance to make the determination of whether third-party consent rendered the subsequent search reasonable. My recollection is that the court has instead defined the reasonablnesss of a third party consent case using the common authority test of Matlock.

4) Finally, Tom, I'm curious about how you would apply your test to other shared spaces outside the home. For example, can an employee who is present at work refuse to allow a government search of his workspace if the employer consents to the search? Can the occupant of a car refuse a search of shared spaces in the car if another passenger has consented? Is your approach limited to the home, or does it apply to other types of searches, as well? (My apologies if you raised this in your brief -- I can't remember.)
11.10.2005 12:28am
Shelby (mail):
Perhaps I'm being obtuse, and I've never practiced 4th Amendment law, but when Tom says

Purely as a doctrinal matter, even if first-party consent, the individual retains that expectation (and has the ability to assert a Fourth Amendment claim), but the balancing of privacy and law enforcement interests is just very different because he has waived his privacy *interests*.

it seems backward to me. If the first party consents, he has waived his expectation of privacy; he can't very well expect to retain his privacy while saying "go ahead and search." But he does retain "his privacy *interests*" in that he continues to experience the same negative (and positive?) effects of intrusion on that privacy, as if he had not waived it. (There is a possible circularity, in that if he doesn't waive the right he may avoid the negative effects of intrustion, but set that aside.)

What am I missing?
11.10.2005 12:48am
Nunzio (mail):
Prof. Kerr's view makes much more sense.

This area is best seen as a variation-on-a-theme of consent cases. It makes absolutely no sense to say that you do or do not have some sort of reasonable expectation of privacy in your home depending on if you share it with someone else, especially a spouse.

This case, as the others before it, are really about the reasonableness of the cops belief that the search was consensual. This is what Rodriguez concerned: cops' objectively reasonable belief.

Here it was reasonable to search based on the wife's consent but unreasonable to search on the husband's consent. So the decision should be that any evidence is admissible against the co-tenant who consents, but not against the co-tenant who explicitly protests.
11.10.2005 12:58am
Nunzio (mail):
Prof. Kerr's view makes much more sense.

This area is best seen as a variation-on-a-theme of consent cases. It makes absolutely no sense to say that you do or do not have some sort of reasonable expectation of privacy in your home depending on if you share it with someone else, especially a spouse.

This case, as the others before it, are really about the reasonableness of the cops belief that the search was consensual. This is what Rodriguez concerned: cops' objectively reasonable belief.

Here it was reasonable to search based on the wife's consent but unreasonable to search on the husband's consent. So the decision should be that any evidence is admissible against the co-tenant who consents, but not against the co-tenant who explicitly protests.
11.10.2005 12:59am
Nunzio (mail):
Apologies for the accidental double-post.

On this topic, however, the Connecticut Supreme Court last week in Connecticut v. Brunetti held that police search violated Connecticut's Constitution because, although father consented to the search, the mother did not. Case contains a nice summary of other state cases in this area (one tenant says yes, the other no) and its reasoning follows Prof. Kerr's argument.

Since the U.S. Supreme Court feels free to look to foreign law in interpreting the Constitution, they should check this case out b/c Connecticut's Constitutional rights are pretty much the same as 4th Amendment.
11.10.2005 1:21am
mls (mail):
A couple of questions:

1. Aren't there other cases where the court has used the "assumption of risk" notion? I'm thinking of the bugged/unbugged agent cases (White, for example) -- can those be characterized as third-party consent cases? If not, is the court using assumption of the risk as consequence or reason?

2. A practical issue -- if a defendant who is present fails to object to the 3d-party consent, but has been Mirandized, how do we view his silence?
11.10.2005 7:46am
John Jenkins (mail):
This discussion concentrates on the "reasonable expectation of privacy." Doesn't that have two parts to it, though? The subjective expectation of privacy and whether society sees that as reasonable? If that's so, then isn't the 3d party conent rationale based on the fact that you can't have a subjective expectation of privacy when you've given unfettered access to another person? I know that's the rationale in some instances (the phone pin registry case) where data is out of the hands of the defendant in the hands of a third party to whom the defendant sent it in one way or another.
11.10.2005 7:57am
Public_Defender:
I think the two positions can be summarized like this:
Goldstein argues that there are two locks on the door. The cops need a key from each occupant to enter.

Kerr argues that there are two identical keys to a single lock on the door. The cops need only get a key from one occupant to enter.
11.10.2005 7:57am
Defending the Indefensible:
Public Defender,
I think there's a third position out there, per Nunzio. There are two locks on two doors. The cops can open either occupant's door with the proper key, and discover whatever evidence pertains to that occupant.
11.10.2005 9:28am
Long time listener....:
Does anyone see an intersection between Randolph and Casey, given the focus coming from Alito's nomination? Outside of the doctrine, both cases seem to asking a similar question regarding the rights of a spouse, notwithstanding the difference between veto power and notification. Isn't there some inconsistency between allowing the husband to veto the wife's control over common property in Randolph, but denying notification over the disposition of arguably common "property" in Casey?
11.10.2005 10:53am
anon:
Don't we normally assume that if consent is necessary, the absence of consent is the same as refusal? Why should the reasonableness of the search turn on the question of whether a person is there to articulate an objection? In Matlock, the defendant was being held outside the house and the police apparently did not even bother asking him for consent. Implicitly, at least, the Supreme Court seems to have conceded the point that the police need find only one person to consent.

The standard for searches is reasonableness - an objective standard - the Fourth Amendment does not provide a right to be free of unwanted searches, but of searches that would offend a reasonable person. The search in Randolph was a garden-variety consented-to search by the wife.

Before rushing to find a way to protect poor Mr. Randolph from his cocaine charge, we should recognize that the ruling he wants is the one that allowed a confessed rapist and murderer to walk in Brunetti.
11.10.2005 2:17pm
Aaron:
Outcome determinative. Useless for jurisprudence. Remember that Miranda was a career burglar who confessed! The rule of law (TM) looks at processes, not results.
11.10.2005 3:26pm
KevinM:
The trouble with the "assumption of risk" terminology is that it introduces an extraneous concept -- the likelihood, as opposed to the permissibility, of something occurring. Leaving your door unlocked when police are patrolling may greatly increase the likelihood of a search, but it does not bear upon whether the search is valid. I'm with Orin; "assumption of risk" is looking thru the wrong end of the telescope. The reason that you "risk" the possibility of a valid search is that the roommate can enter, or entertain guests, or admit intruders, without violating any right you may possess as against the government.
11.10.2005 3:36pm
Justin (mail):
Before rushing to find a way to protect poor Mr. Randolph from his cocaine charge, we should recognize that the ruling he wants is the one that allowed a confessed rapist and murderer to walk in Brunetti.

That's because the guy who ends up in handcuffs being hauled off to jail for a crime he didn't commit because the cops found evidence that they misconstrued as probable cause, when they didnt ask the right questions in the first place, who loses his job because he doesnt show up to work the next day, and/or misses his child's birth, and is humiliated in front of his friends, neighbors, and families, rarely ends up getting convicted and having to base his conviction on the fact that the whole thing originated from a 4th amendment violation.

(Note: the fact pattern is derived from actual 1983 cases that I've read over the years. Only a miniscule fraction of 1983 cases that can be brought actually are brought, so comparing the size of the two types of cases is irrelevant.

As mentioned above, its about process, not outcomes.
11.10.2005 4:58pm
BruceB (mail):
I'll admit I'm very naive about this whole topic, but I wonder if there is any definition of "types" of third party consent? In other words, is my (hypothetical) wife's consent to search my house weighed more heavily, than say, a housekeeper that is regularly in my house? A babysitter who is alone in the house for several hours, but not a regular resident or employee? A woman I met just last night who's sleeping in while I went out for coffee? It would seem to me that if third party consent is valid at all, the type of relationship would be relevant.
11.10.2005 6:19pm
Pete Haberlandt (mail):
I'm not persuaded by the private search analogy. If third party consent was really analogous to private party searches, why make sure the third party has apparent or actual authority to give consent? If a burglar finds contraband and turns it over to the police, the state doesn't need to confirm that the burglar had authority over the premises he burglarized before it can use the evidence.

The requirement that the consenting party has apparent or actual authority must be a proxy for the deeper question of whether the defendant, by electing to share space with another person, in some some sense granted the other person the authority to make decisions about his Fourth Amendment rights.
11.11.2005 11:46am
son of lcuas (mail):
Putting on my Originalist hat, I'd say that the final decision must be left up to the man of the house.

That's what the Founders would have wanted ;)
11.13.2005 5:20am