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U.S. Supreme Court to Clarify Co-Tenant Consent in Police Searches

The Fourth Amendment of the U.S. Constitution prohibits unreasonable searches and seizures by police. Historically, however, the word "unreasonable" has required a lot of clarification. For example, while courts have traditionally held that police must get a warrant before searching someone's home, there are exceptions to that requirement. One of them is when an authorized person such as a homeowner or tenant consents to the search.

But suppose the police want to search Lynn's apartment for drugs. They don't have a warrant and she refuses to consent to the search. Can the police perform the search if her roommate consents?

No. In a 2006 decision called Georgia v. Randolph, the high court said when one roommate consents but another refuses, that single refusal is enough. The police need a warrant or another exception to perform the search.

This month, however, the Supreme Court will hear a case clarifying that one-refusal rule. In this case, a man refused to consent to a search, but police arrested him on an unrelated charge. Once he was gone, they asked his roommate/girlfriend, and she agreed to the search. Didn't they just violate the one-refusal rule?

The case involves a California man police call a gang member and who they suspected of committing a knifepoint robbery and slashing at a rival gang member. They arrived at his apartment without enough evidence for a warrant, but his girlfriend had fresh marks of violence and, according to court papers, police learned the couple had been fighting.

The defendant made clear his refusal to consent to search. However, the police arrested the man on suspicion of domestic violence. After the girlfriend consented to the search, police allegedly found the knife and some clothing they identified as involved in the robbery. The defendant was convicted using that evidence.

Prosecutors argue that one roommate's refusal to consent to a police search can't constitute "a continuing absolute veto." The defense contends that indeed it should.

Even if it doesn't, surely the police can't get around the one-refusal rule by the simple expedient of arresting the person who refused.

"The primary significance of the case is how often the scenario arises," says the co-director of Stanford Law School's Supreme Court Litigation Clinic, who is representing the defendant on appeal.

Do you think the police unlawfully overrode the defendant's consent to search?

Source: ABA Journal, "High court tackles another 4th Amendment case," Mark Walsh, Nov. 1, 2013

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