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Search of Common Property and Validity of Consent

Whether the search of common property is conducted pursuant to valid consent is one of the most frequently litigated issues in Georgia criminal defense. Below is a section from Randolph v. State, 264 Ga. App. 396, 397-98, 590 S.E.2d 834, 836-37 (2003) aff’d, 278 Ga. 614, 604 S.E.2d 835 (2004) aff’d, 547 U.S. 103, 126 S. Ct. 1515, 164 L. Ed. 2d 208 (2006), which is the authoritative case on this issue in Georgia:

1. It is well established that “the consent of one who possesses common authority over premises or effects is valid as against the absent non-consenting person with whom that authority is shared.” This is so because it is reasonable to expect that a co-habitant with the authority to give such consent might, in fact, exercise that authority.2 And the touchstone of Fourth Amendment jurisprudence is reasonableness.

We are now presented with the question of whether it is reasonable for one occupant to believe that his stated desire for privacy will be honored, even if there is another occupantwho could consent to a search. Notably, neither our Supreme Court nor the United States Supreme Court has addressed the precise issue before us, although United States v. Matlock is exceedingly close. However, at least one jurisdiction has concluded that it is reasonable for an occupant to believe his wishes will be honored as, “ ‘ordinarily, persons with equal rights in a place would accommodate each other by not admitting persons over another’s objection while he was present.’ ” Indeed, if one person with equal rights in a place refuses to honor a co-occupant’s objection, such refusal hints of underlying trouble in the relationship and should raise a question as to why consent was given. Accordingly, we find this reasoning persuasive.

Moreover, we find it inherently reasonable that police honor a present occupant’s express objection to a search of his dwelling, shared or otherwise. One who grants consent to searchmay subsequently withdraw such consent, thereby terminating law enforcement officers’ authority to search. INHERENT IN THE POWER to grant consent is the power to vitiate that consent. Who, then, may terminate the search? Is it limited to the consenting co-occupant? Or, may an objecting co-occupant exercise his competing right to be free from the search? We believe the answer to this last question is an unequivocal “yes.” If “common authority” is the basis for allowing one co-occupant to consent to a search on behalf of all occupants, it seems reasonable that “common authority” should permit a co-occupant to exercise privacy rights on behalf of all occupants.

Such result is particularly reasonable in this case, which also involves a marital dispute. When possible, Georgia courts strive to promote the sanctity of marriage and to avoid circumstances that create adversity between spouses. Allowing a wife’s consent to search to override her husband’s previous assertion of his right to privacy threatens domestic tranquility.

In resolving this issue, Judge Phipps’ special concurrence favors a case-by-case analysis. However, it is incumbent upon this Court to provide as much guidance as practicable to those officers confronted with the daily task of balancing citizens’ Fourth Amendment privacy interests against the officers’ duty to investigate crime. And a bright-line rule requiring police to obtain a warrant in the face of competing responses to requests for consent provides a clear guideline for law enforcement. Such rule should not unduly hamper law enforcement, as generally a warrant is the rule rather than the exception.

If you have a question about criminal charges based upon or arising from a search of common property in Georgia, contact a criminal defense attorney at The Sessions Law Firm. The validity of consent to a search is an issue that should be examined in every search, but it is most frequently an issue in the defense of drug charges. If your conviction was based, in part, upon the search of common property, the post-conviction relief attorneys at The Sessions Law Firm may be able to assist you.

The Sessions Law Firm
3155 Roswell Rd., Ste. 220
Phone: 470-225-7710

About the Author

Ben Sessions, Attorney at Sessions Law Group
Ben Sessions

I work to provide exceptional service, attention, and results to each of my clients. Most of clients come to me because they are in a completely overwhelming situation. They need someone that will do more than address their legal problems.


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