Spousal Consent: Maybe Not the Best Way to Achieve Spousal Distancing!

After months of being locked in your home with your spouse, exercising social distancing due to COVID19, I suspect you have all come up with excuses for some spousal distancing time.  Well, one spouse’s ability to give consent to the search of your home or your personal effects, if you are committing crimes, may provide that distance you desire.  When can a spouse (or more generally a co-habitant) give consent to the search the home or home computer.

The 4^th Amendment protects against warrantless searches.  However, officers can conduct a lawful warrantless entry and search of a home or personal effects within the home so long as the officer obtains the voluntary consent of an occupant who has authority over the area or item in common.  A couple scenarios have been settled by the United State Supreme Court with regards to the co-occupant consent-to-search rules.

We know from United States v. Matlock, 415 U.S. 164 (1974), that the U.S. Supreme Court determined it lawful consent when a co-habitant gives permission to enter and search those areas and items they possess shared authority over.  In the Matlock scenario, the Defendant, who ultimately argued for the suppression of the items found in the search, was in a patrol car down the street, absent from the scene.  The U.S. Supreme Court held that “the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom the authority is shared.” Id. at 170.

Next, the U.S. Supreme Court addressed the scenario where the person giving police consent “appeared” to have authority to do so, but ultimately did not.  In Illinois v. Rodriguez, 497 U.S. 177 (1990), the U.S. Supreme Court held that police can rely on consent of an occupant who shares, or is reasonably believed to share, common authority.  In Rodriguez, officers received consent from Gail Fischer to enter the suspect’s apartment.  Gail Fischer represented that the apartment was “our[s]” and that she had clothes and furniture there, she unlocked the door with her key, and gave the officers permission to enter. It turns out that Gail Fischer had actually moved out of the apartment; however, the evidence showed that the officer’s belief that Ms. Fischer had authority was reasonable based on the totality of the circumstances known to the officer at the time.

In Georgia v. Randolph, 547 U.S. 103 (2006), the U.S. Supreme Court tackled another scenario.  In Randolph, Mrs. Randolph told officers that Mr. Randolph was abusing drugs and that items of drug evidence were in the house.  Mr. Randolph was present.  Officers asked Mr. Randolph if he consented to their entry and search of the home.  Mr. Randolph unequivocally refused to give consent.  So, the officers turned to Mrs. Randolph (who by the way was not happy with Mr. Randolph) and asked for her consent, which she gave.  Mrs. Randolph led the officer to the bedroom where a straw with a white powdery substance was located.  The officer left to retrieve an evidence bag from his vehicle, and by the time he returned to the home, Mrs. Randolph changed her mind and withdrew consent.  The officer took the straw (and the Randolphs) to the police station and got a warrant to search the home where more drug evidence was located.  The Supreme Court suppressed the evidence holding that a physically present inhabitant’s express refusal of consent to a police search is dispositive and is not overridden by another inhabitant’s consent.

And the last scenario mentioned in Randolph and explained further by the U.S. Court of Appeals in U.S. v. Thomas 818 F.3d 1230 (2016) addresses when a co-habitant has a self-interest in objecting to the consent, and is nearby, but not present or invited to take part in the conversation regarding consent.  In Thomas, Defendant’s then-wife, Olausen, arrived home early one night and Thomas was on his computer, acting very nervous and his heart was racing.  The next morning, while Thomas slept, Olausen turned on to the computer monitor they share in their home, answered ‘yes’ when asked if she wished to restore the previous searches, and found child pornography.  Olausen called the police.  Officers learned that Thomas was sleeping, and therefore, asked Olausen for consent to search the computer.  She consented.  After officers performed a brief visual search of what Olausen had found open on the computer, and after one forensic search was complete, Thomas awoke.  The police asked Thomas for consent.  He orally consented, but refused to sign the consent to search form, ultimately asking for a lawyer.  Although not equivocal, officers took that as a refusal to consent, stopped their searches, seized the computers under an exigency theory to prevent Thomas from destroying the evidence, and obtained a search warrant.  The Appellate Court applied the line drawn in the sand by the U.S. Supreme Court in Randolph.  In Matlock, defendant was in a patrol car down the street.  In Rodriguez above, that defendant, like here, was asleep in the apartment.  The U.S. Supreme Court in Randolph held that police do not have to take affirmative steps to find a suspect and ask for consent before acting on the consent given by the co-tenant.  However, the police cannot intentionally remove the suspect to prevent him from objecting to the consent.

What does this mean for you?  Of course, you will always gather facts to support someone has authority to consent.  Also remember, it is always safer to get a warrant.  The information from Olausen as to the child pornography she witnessed on the computer when she turned it on was enough for officers to secure a warrant and would have eliminated this entire appeal.