No, You May Not Search My Car! Extending Georgia V. Randolph to Vehicle Searches

Abstract: In Georgia v. Randolph, the United States Supreme Court announced that third-party consent does not always suffice to immunize the search of a residence from Fourth Amendment attack. Specifically, the Court held that a police search of a residence conducted pursuant to the consent of one occupant, but over the express refusal of a physically present co-occupant with common authority, is unreasonable as to the nonconsenting occupant under the Fourth Amendment. The Court did not indicate whether its holding also extended to searches of personal effects, such as vehicles, conducted pursuant to third-party consent. As a general principle, the Fourth Amendment does not protect an individual's expectation of privacy in his vehicle to the same extent that it does in his residence. Where a search proceeds on the basis of consent, however, the Court analyzes vehicle searches in the same manner as residence searches. Furthermore, Court precedent suggests that a physically present, nonconsenting party with common authority over the property to be searched does not assume the risk that a third party with common authority will permit a search of that property. In light of these considerations, and especially in the absence of evidence of widely shared social expectations to the contrary, this Comment argues that courts should apply the Randolph rule to searches of vehicles conducted pursuant to third-party consent. One afternoon, Officer Galloway observes a man and a woman sitting together on the hood of a car.1 Although Galloway does not witness the couple violating any laws, he nevertheless has a hunch that the car contains illegal drugs.2 He approaches the two, a married couple named Cyrus and Sarah, and asks who owns the vehicle. Cyrus tells the officer that he and his wife jointly own the car. Galloway then asks Cyrus for permission to search the vehicle; Cyrus refuses. Undeterred, Galloway then asks Sarah for permission to conduct the search. Sarah, angry with Cyrus for his recent extramarital affair, consents to the vehicle's search. Galloway finds drug paraphernalia in the glove compartment. A grand jury indicts Cyrus for possession of drug paraphernalia. At trial, Cyrus moves to suppress this evidence as the direct product of an unreasonable search under the Fourth Amendment.3 Specifically, Cyrus argues that the search was unreasonable because the consent Galloway received from Sarah could not properly serve as the basis for the search. While conceding that Sarah gave her consent voluntarily, Cyrus claims it was nonetheless unreasonable for Galloway to search the vehicle when Cyrus was physically present and expressly refused to consent to the search. This Comment argues that the question raised by this hypothetical-whether, in the face of Cyrus's explicit refusal to consent to the search of the car, Sarah's consent is sufficient to transform what would otherwise be an unreasonable warrantless search under the Fourth Amendment of the couple's vehicle into a reasonable search-should be answered by the limitation on the third-party consent rule announced in the U.S. Supreme Court's recent decision, Georgia v. Randolph.4 The Randolph rule provides that where police search a house without a warrant but with the consent of an occupant, that search is nevertheless unreasonable under the Fourth Amendment as to a co-occupant of the residence, provided that the co-occupant is physically present at the time of the search and expressly refuses to consent.5 As a result, any search conducted solely pursuant to such third-party consent violates the Fourth Amendment and, with limited exceptions not here relevant, all evidence discovered as a result of the search must be suppressed in a criminal prosecution of the physically present, nonconsenting co-occupant.6 Although the Court did not address in Randolph whether this rule extends to searches of personal effects such as vehicles, the decision's underlying rationale militates in favor of such an extension. …