By David Waksman
Police officers routinely respond to violent
domestic disputes. Usually the parties live
together. What happens when she tells
you that he keeps his stash in that
dresser drawer and he beats her whenever he
gets high. Can you search the dresser or the
premises on her say so alone. Must he also
consent?
In Georgia v. Randolph,
a domestic in Americus, Georgia, the United
States Supreme Court gave us the answer this
year. Wife Janet called the police when husband
Scott, took their child to a neighbor. Janet
advised responding officers that her husband
“was a cocaine user whose habit had caused
(them) financial problems.” As this was
occurring, Scott returned to the home, denied
drug use and advised that Janet was the one who
abused drugs and alcohol. With that, Sergeant
Murray asked Scott for permission to search the
house. Scott clearly refused. The sergeant
then asked Janet for permission, which she
readily gave. Janet led the officers to an
upstairs bedroom that she indicated was
Scott’s. Sergeant Murray entered and saw the
customary straw and white powder.
After Scott’s indictment for cocaine possession, he
moved to suppress the evidence on the grounds
that he did not consent to the search and his
refusal should overrule that of wife Janet’s.
Co-tenants or joint occupiers have equal
standing in the home. Who wins here? Who
controls the actions of the police? The
Supreme Court accepted the case:
to resolve a split of authority on whether one
occupant may give law enforcement effective
consent to search shared premises, as against a
co-tenant
who is present and states a refusal to permit
the search.
The court upheld the general rule of third
party consent
by persons having joint access or control
previously announced in U.S. v.
Matlock, however, they went on to hold
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.
Scott Randolph's refusal is clear, and nothing
in the record justifies the search on grounds
independent of Janet Randolph's consent. (That
means if he’s the one going to jail, he can
overrule her.)
They did drop a few hints of when that rule
might not apply:
The State does not argue that she gave any
indication to the police of a need for
protection inside the house that might have
justified entry into the portion of the
premises where the police found the powdery
straw (which, if lawfully seized, could have
been used when attempting to establish probable
cause for the warrant issued later). Nor does
the State claim that the entry and search
should be upheld under the rubric of exigent
circumstances, owing to some apprehension
by the police officers that Scott Randolph
would destroy evidence of drug use before any
warrant could be obtained. At 1533.
Since many of these cases originate as
domestics, what happens when the potential
defendant does not object as he is outside his
home, sitting in the rear of the police car,
having been arrested for assaulting his
beloved? Must you go outside and ask him too?
The Randolph court also spoke to that
issue:
So long as there is no evidence that the police
have removed the potentially objecting tenant
from the (home) for the sake of avoiding a
possible objection, there is practical value in
the simple clarity of complementary rules, one
recognizing the co-tenant's permission when
there is no fellow occupant on hand, the other
… (allowing the other co-tenant who is present
to object). (Any other rule) would needlessly
limit the capacity of the police to respond to
legitimate opportunities in the field if we
were to require … the police to … find a
potentially objecting co-tenant before acting
on the permission they had already received….
Better to accept (this rule) than to impose a
requirement, (that would be) time-consuming in
the field and in the courtroom, with no
apparent justification. At 1527.
This is also the rule in Florida:
State v. Purifoy
was a typical domestic situation. Her hit her.
He was arrested
and placed into the
caged unit. They went into the house to talk
to her. Whose
consent is
necessary for a lawful search?
The trial court granted (subject’s) motion to
suppress on the grounds that, although (the
girlfriend who lived there) consented to the
search, the police failed to obtain the consent
of (the subject), who was in custody
(but) available to consent. Because the record
reflects that (the girlfriend) possessed common
authority over the premises, she had authority
to consent to the search and the police were
not obligated to seek consent from (the subject
who was currently not present).
The First District Court of Appeal (binding on
all trial courts in Florida), then discussed
the law to be applied to those facts:
It is well-established that a search conducted
pursuant to valid consent is a recognized
exception to the requirements of probable cause
and a search warrant,
Schneckloth
v. Bustamonte,
412 U.S. 218, 222, (1973), although the
consent to search must be voluntary, and the
person giving consent must have authority to do
so,
United
States v. Matlock,
415 U.S. 164 (1974), or must reasonably
appear to have authority to do so,
Illinois v.
Rodriguez,
497 U.S. 177 (1990). Authority to
consent to a search arises from the mutual use
of the property by persons generally having
joint access, common authority over, or other
sufficient relationship to the premises or
effects to be inspected. Under such
circumstances, it is reasonable to conclude
that any of the co-occupants has the right to
permit the inspection in his or her own right,
and that the co-occupants have assumed the risk
that others with whom they control the premises
might permit the commonly held areas to be
searched…. (Earlier cases) … specifically
considered and rejected the argument that the
police were required to seek consent from a
defendant in police custody and could
not rely on the consent given by a third party
with authority over the premises.
So what do we do when we get
to those ever recurring domestics?
If it is reasonable (the key question to all
Fourth Amendment questions) to arrest the
hubby/boyfriend and put him in the caged unit
outside the house, as you continue to interview
the battered spouse, do it. If your intent is
merely to remove him so he cannot object if she
gives consent to search, the rule of Randolph
would apply to frustrate the search. Got
it?
Are these cases authority for you to get your
suspect’s mother’s consent to search her
juvenile son’s bedroom?
First ask yourself a few questions. Does
Junior know that his mother enters his room on
a regular basis to clean it? To what areas
does she have access? Does she open the
dresser drawers to replace his clean clothes?
Does she put fresh linen on his bed and look
under it for his socks? Is it reasonable for
him to assume no one is invading his privacy?
What about that locked fishing or toolbox in
the closet? The one with the lock on it?
What is the owner of that box telling us? Is
there a reasonable expectation of privacy in
that locked box?
Your job is dangerous enough. So long as you
are doing it, and obtaining contraband as
evidence, it might as well be admissible in
court. Be safe out there, and we’ll see you
‘On the Road.”
This article is excerpted
from his new book, The Search and Seizure
Handbook, 2/Ed. available from Prentice
Hall or Pearson Custom Publishing. It was
recently cited by the U.S. Supreme Court as a:
“(S)ource now available to teach officers and
their supervisors what is required of them
under this Court’s cases, (and) how to respect
constitutional guarantees in various
situations.… See, D. Waksman & D. Goodman, The
Search and Seizure Handbook (2d ed. 2006).”
BOOKER T. HUDSON, Jr v. MICHIGAN, United States
Supreme Court, June 15, 2006.
About the Author
David M. Waksman, J.D., is a nationally known
homicide prosecutor with vast experience in
trying violent offenders. He is a very popular
speaker, not only at professional meetings, but
before business and civic groups as well.
Waksman brings a witty and pointed humor to
this oftentimes dry and sensitive area. He has
been invited several times to address the
Mystery Writers of America, giving them the
reality they need for their novels.
Mr. Waksman is well published in police
publications. He has had two criminal justice
related Op-Ed articles published in the Miami
Herald, and has been featured numerous times on
TV shows such as Inside Story, Inside Edition,
COPS, Hard Copy, 48 Hours and Dateline NBC. The
local TV networks call upon him to comment on
current cases in the news. On the 200th
anniversary of the Bill of Rights, Mr. Waksman
appeared with Justice Antonin Scalia, Judge
Robert Bork, and several other distinguished
judges and lawyers in a nationally televised
PBS segment of Fred Friendly's The Constitution
- That Delicate Balance. The show featured a
hypothetical case highlighting the
constitutional problems encountered in
investigating and prosecuting a capital case.
Waksman has toiled 32 years in the criminal
courts of Miami, Florida, after working the
mean streets of The South Bronx for six years
as a police officer and rising to the rank of
sergeant in the New York Police Department. He
may have tried more first-degree murder cases
than any other American prosecutor.
Mr. Waksman's career as a prosecutor began
under the legendary Richard Gerstein. He also
worked eighteen years as an assistant to
America's most popular, and longest serving
Attorney General, Janet Reno, when she served
as Miami's top prosecutor. During that time
period he tried over eighty-five homicide cases
to juries, including twenty in which the death
penalty was sought.
Prosecutor Waksman's trial experience spans
well over 180 jury trials, primarily for such
crimes as homicide, rape, child abuse, armed
robbery, home invasion robbery, and public
corruption. In federal court, five years before
the world heard of Rodney King, Mr. Waksman was
sworn in as a Special Assistant United States
Attorney to prosecute a Hialeah police officer
for Conspiracy to Violate the Civil Rights of
two people, by killing them, after that officer
was acquitted in state court of homicide
charges, resulting from an off-duty drug
robbery gone bad.
David Waksman, not content to fight his battles
in Miami-Dade County, has been teaching the
cops of America the law and procedures they
need to combat violent crimes in their
communities. Since 1988 he has taught a monthly
seminar on homicide investigation for the
Southern Police Institute (University of
Louisville) in various locations (22 states, 34
cities) across the country. He also teaches new
detectives, crime scene technicians, medical
examiners and forensic investigators at the
nationally renowned Dade County Medical
Examiner's Police-Medical Investigation of
Death seminar. He has taught classes (one a
Fourth Amendment seminar) at the University of
Miami School of Law and at several colleges in
the South Florida area. Local police
departments continually call upon Mr. Waksman
to teach refresher courses and in-service
training to their investigators.
Waksman is also on the staff of the National
College of District Attorneys, at their
training facility in Columbia, South Carolina.
He teaches newer prosecutors how to be
effective advocates in jury trials at the
National Advocacy Center.
In September of 2001, Mr. Waksman was invited
by the U.S. Departments of State and Justice to
participate in a training seminar in Yerevan,
Armenia. With two FBI agents, and a medical
examiner, a five-day class was taught (during
the week of September 11th) entitled Major
Case/Homicide Investigation. The seminar was an
advanced level course designed for Armenian
investigators, prosecutors and medical
examiners currently participating in homicide
investigations. The class was presented in
rather austere conditions, in a former Soviet
military installation. As the investigators
spoke no English, the class was taught with
simultaneous translations, as well as his
collection of rather graphic slides.
His unique experiences and engaging style make
him a compelling storyteller, one who can cut
through the confusing legal issues that have
befallen our modern American justice system. He
tells it as he sees it, yet protects himself
from the carnage, as most cops do, with humor,
albeit it away from the grieving families.
The compliment he appreciates most came from a
Metro homicide detective:
Waksman, you're nothing more than a cop in a
lawyer's uniform.