Georgia v. Randolph - Oral Argument

Argument of Paula K. Smith

Chief Justice Roberts: We'll hear argument next in Georgia versus Randolph.

Mr. Smith: Mr.--

Chief Justice Roberts: Ms. Smith.

Mr. Smith: Mr. Chief Justice, and may it please the Court--

The question presented in this case is whether one occupant can give law enforcement valid consent to search the common areas of a premises shared with another, even though another occupant is present and objects to the search.

The State of Georgia submits that the answer to this case is a resounding yes.

It is reasonable to recognize that a person who satisfies Matlock's definition of common authority... that is, a definition that is not based upon property law concepts, but one who has mutual use of property by virtue of having joint access or control for most purposes... can give consent for a search of that premises, in his or her own right.

Justice O'Connor: Do we look to what is socially acceptable?

Is there some language to that effect in some of our cases?

Mr. Smith: There has been some of that in some of the prior cases, Your Honor, that you do look to social norms.

You've also said--

Justice O'Connor: Do you think it is the norm that, if there are coinhabitants of a house or apartment, that it's okay to let a stranger in, against the express wishes of your spouse or coinhabitant?

Mr. Smith: --I think that is--

Justice O'Connor: You think that's socially acceptable?

Mr. Smith: --I think it is... I think it is common, Your Honor.

As much as one would like to think--

Justice O'Connor: Well, it might be common, but I'm not sure that's an acceptable kind of performance.

Mr. Smith: --Well, I think, Your Honor, we have what we have called either adduced expectation of privacy or a limited expectation of privacy or what we called a shared expectation of privacy, by making the decision, long before police appear at the door, to share this premises with someone.

And by--

Justice O'Connor: What--

Mr. Smith: --that decision--

Justice O'Connor: --what if the spouse had put a sign up, "No police allowed here"?

Mr. Smith: --I don't think that, even as... in... one could ensure that the spouse would honor the other person's wishes.

I think this case is here to give some substance to the recognition in Matlock of the ability of the cotenant to consent, in his or her own right.

Justice Kennedy: What--

Justice Souter: Is--

Justice Kennedy: --What about the extent of the search?

Can the wife say,

"It's okay for you to come in, and you can look in my husband's top drawer? "

Mr. Smith: I think, Your Honor, that would be a question of fact, under the circumstances, to see whether the husband has exhibited some exclusive use of that drawer or whether the facts would demonstrate that she puts socks in there for him, she puts--

Justice Kennedy: I mean, how does the--

Mr. Smith: --notes in there--

Justice Kennedy: --how does the policeman--

Mr. Smith: --for him--

Justice Kennedy: --so, how is the policeman supposed to know that?

Mr. Smith: --Well, I think... looking... we measure what is reasonable on the part of the police by looking to what they know.

And Rodriguez made very clear, one does... a policeman doesn't simply accept every invitation to enter.

If there's some ambiguity or some uncertainty, the policeman has a duty to inquire.

And, I think, looking into the facts of this particular case is a good example.

You have police who were called to the marital home of Mr. and Mrs. Randolph.

It arose out of a domestic dispute, because Mr. Randolph had absconded with the couple's child.

The officer... this was a small town... the officer knew Mr. Randolph, because Mr. Randolph was a local attorney.

The officer knew that Ms.... who the wife was.

And he knew this was the couple's home.

When he got there, in talking with the wife... Mr. Randolph was off with the child, hasn't returned to the residence... he learned that they had been having some problems, but, in looking at the two conversations that ensued, the policeman learned that, despite the problems, she was back, she was living there.

There was no separation.

Justice Ginsburg: I thought she said she came to collect her belongings.

That didn't sound like she's intending to stay very long.

Mr. Smith: She did not... she did not relay that to the officer.

That came from Mr. Randolph, in his testimony at the suppression hearing.

All--

Justice Ginsburg: But isn't it relevant what the status of the person is?

Someone might not know... the police might not know that someone on the premises is a temporary visitor.

Mr. Smith: --Well, Your Honor... and I think that, looking at the tenor of the conversations, that is exactly what this officer ascertained.

He knew that she was there, they had been living there, she was back, she had been on a visit.

She did not tell him they were separated.

She did not tell him she was--

Justice Ginsburg: She called--

Mr. Smith: --only there--

Justice Ginsburg: --the police, didn't she?

She called the police to come.

Mr. Smith: --She called the police.

And what we have, more importantly, is a factfinding by the trial court that she, in fact, had common authority to give consent to search.

Justice Souter: --And is that a... is there any issue about that here?

Mr. Smith: No, Your Honor.

Justice Souter: In other words, I thought the issue was whether his statement, in effect, vetoed whatever... for Fourth Amendment purposes, whatever permission might have been given.

But, as I... I understood that there was no question... what is it +/?

under Rodriguez, at least... of her authority, facially to admit the police to the places that they went.

Mr. Smith: That is our position, Your Honor.

I think there has been some question raised by the Respondent, in his brief, trying to challenge both her authority over the actual bedroom, itself, which is an issue that wasn't raised below.

Justice Souter: That's what I thought.

Mr. Smith: And there had been an argument raised in the appellate court--

Justice Ginsburg: But we--

Mr. Smith: --about whether she had abandoned the property.

But the trial--

Justice Ginsburg: --But all of this is really getting pretty far from what I think is really the key question in the case.

Matlock is decided.

And Matlock said... it referred to the risk that a joint occupant undertakes, the risk of inability to control access during one's absence.

So, the scene in Matlock is, one occupant is there, the other is absent; and the one who was absent assumes the risk that the one who was there will exercise control.

Matlock doesn't speak to the two people who are in disagreement situation.

Mr. Smith: --That is correct, Your Honor, as to not addressing the spectral situation.

But I would disagree that Matlock simply only spoke to an absent nonconsenting defendant.

Justice O'Connor: Well, what if we think it does?

Because that's how I read it, too, that Matlock governs where one of the people is absent.

And we have a situation that's different here.

Now what rule do we look to?

Mr. Smith: I think you look to whether she has common authority over the premises in his... in her own right.

Justice Scalia: Why?

Justice O'Connor: Even when--

Justice Scalia: Why?

Justice O'Connor: --when the husband is physically present and says no?

Mr. Smith: Yes, Your Honor, because, first of all, you said, in Rodriguez, the Constitution does not guarantee that a search, only with the defendant's consent, will occur.

Your Honors said that--

Justice O'Connor: But, do you--

Mr. Smith: --only a search that--

Justice O'Connor: --do you--

Mr. Smith: --is unreasonable--

Justice O'Connor: --think the officers had sufficient grounds to get a warrant here for a search?

Mr. Smith: --They ultimately did, Your Honor, but that consideration of getting a warrant was also at play in Matlock and, I think, in Rodriguez.

And the point is, if one has valid consent, you don't have to get a warrant.

They--

Justice O'Connor: But that's--

Justice Kennedy: Well, but that's the--

Justice O'Connor: --the issue.

Is it valid consent when the coowner, the husband, is there and says, "No, you don't"?

Mr. Smith: --Well, Your Honor, I think you... we come back to the fact that he does not have a reasonable expectation of absolute or unequivocal control--

Justice Scalia: Why--

Justice Kennedy: --Well, I guess that--

Justice Scalia: --Why not?

I--

Justice Kennedy: --that depends on what we say.

I'm, frankly, still somewhat surprised at your answer to Justice O'Connor, indicating that it happens all the time where there are two occupants, and one expressly says, "You can't come in", and they do anyway.

But leaving that aside, it seems to me that most of the considerations that would impel a decision in your favor can be answered under other doctrines.

If there's cocaine that's being used and may be destroyed, there's exigent circumstances.

I don't see the necessity for the rule that you propose.

Mr. Smith: --Well, I think, Your Honor, its ability... if we're going to have consent, and if we're going to have a third party consent rule, then this is an issue that is going to have to be resolved.

Justice Scalia: --You're talking about--

Mr. Smith: I'm--

Justice Scalia: --reasonable expectations, I suppose, here.

Mr. Smith: --Yes, Your Honor.

Justice Scalia: Why do you assume that it... that it is the reasonable expectation of two people who have... who are living together in... on... in common premises, that, where one of them wants somebody to come in, and the other one does not want somebody to come in, the person may come in?

I would think that the normal assumption is just the opposite, that, where one wants somebody excluded, that person will be excluded.

Mr. Smith: Well, I think, in the Morning case that was cited in the brief, they realized one can always hope that the other will accede to one's wishes.

But, this is the dynamics of personal behavior, and I think it comes from an almost subliminal assertion that the person who was saying no does, in fact, have absolute authority over--

Justice Scalia: In--

Mr. Smith: --that shared--

Justice Scalia: --In Matlock--

Mr. Smith: --premises.

And that's--

Justice Scalia: --In Matlock--

Mr. Smith: --that's out of sync--

Justice Scalia: --In Matlock, did the... did the absent person say no?

Mr. Smith: --He was... it... he was silent.

He had been arrested--

Justice Scalia: So, you--

Mr. Smith: --on the scene--

Justice Scalia: --you don't even have, in Matlock, a situation where you know that one of the parties didn't want entry.

You don't know that.

You... there was one party there, and that party said, "Okay, come in".

And the other party said,

"Well, if I had been consulted, I would have said no. "

or whatever.

But--

Mr. Smith: --Well, in... and even in that situation, Matlock, the reference to the absent nonconsenting defendant was in a paragraph where the court had talked about how it had reserved, in Amos... the Amos case... the question of whether a wife could waive her husband's rights.

And then you had decided the Frazier case, and that was what was described as the nonconsenting absent codefendant in which two cousins had shared the use of a dufflebag, and the defendant had left the dufflebag with the cousin.

The cousin and his mother gave consent for the search.

And it simply was not that the defendant was not present, but this Court found there was mutual use of that bag that gave the cousin the authority to consent.

And then, the Court readily rejected Frazier's arguments that,

"Well, the cousin could only use one compartment of the dufflebag. "

And you said you wouldn't get into such metaphysical distinctions.

Justice Souter: Okay, Ms.--

Mr. Smith: But--

Justice Souter: --Ms. Smith, may I... your time is getting short, and I want to get clear on one thing.

As I understand it, your argument is not an argument that the husband, in this case, lost an expectation of privacy.

You are not arguing that he has no right to object.

Am I correct on that?

Mr. Smith: --I think, Your Honor, we had called it a--

Justice Souter: Okay, and let me--

Mr. Smith: --a reduced--

Justice Souter: --If that is correct, then your whole argument rests on the fact that, although he has, and may assert, an expectation of privacy, that is irrelevant to the right of his wife to let people, including the police, come into an area which is under her control, as well as his.

Is that it?

Mr. Smith: --Yes, Your Honor--

Justice Souter: Okay.

Mr. Smith: --that is.

And I think, looking at Justice Stevens' dissent in Rodriguez, there is that recognition of, When you make the decision to share premises with another, you have lost the expectation of exclusive or absolute control--

Justice Souter: But your expectation... this is what I'm trying to get at... your expectation is not what governs.

You concede, as I understand it, that he still had an expectation, in the sense that he could assert a right of privacy, he can litigate this case, he has standing--

Mr. Smith: --Yes, Your Honor.

Justice Souter: --but that his expectation is irrelevant to the fact that the wife, in this case, we assume, had the right to admit them to an area which was under her control, as well as his.

Is... have I got it correct?

Mr. Smith: Yes, Your Honor, I think so.

Justice Souter: Okay.

Mr. Smith: I think that his... his expectation is unreasonable.

And we would urge the Court not to adopt that and enshrine that as the rule for Fourth Amendment, third party searches.

If there are no further questions, I'll save the remainder--

Justice Ginsburg: So, you would distinguish... in your answer to Justice Souter... this is... this is a lawyer.

One room in the house is devoted... is his office.

Mr. Smith: --Yes, Your Honor.

Justice Ginsburg: Her permission wouldn't extend to that room, would it?

Mr. Smith: I think it would... it would have presented a much closer question of... and particularly given the protection of papers and the fact that you may have business papers in there with attorney client privilege... I think her authority to consent it would have presented a closer question, although it would still be something to look at under totality of circumstances.

She might have operated as a paralegal.

She might have been his secretary.

She might have known where he stashed his cocaine under a particular file.

But that's not the question we have in this case.

We're talking about common areas of a marital home over which both have equal access and control.

And we would urge this Court to recognize that she, with common authority over those premises, has the ability to admit police and give consent for search, in her own right.

Argument of Michael R. Dreeben

Chief Justice Roberts: Thank you, Counsel.

Mr. Dreeben?

Mr. Dreeben: Thank you, Mr. Chief Justice, and may it please the Court--

The law of consent searches is governed by a determination of what is reasonable for the police to do in a particular circumstance, and it starts from the premise that consent is not a disfavored species in the law, that cooperation with law enforcement is a good thing and should be encouraged.

The right of the cotenant, in this case, to consent stems from her common authority, which is independent of his and allows her to serve valuable social interests, as well as interests that represents her own personal interest.

Many of these cases arise not among couples who are harmonious, but among couples in which there is some degree of tension, and the spouse who consents in these situations has an independent interest in ensuring that she can call upon the protection of the law.

Justice O'Connor: But we--

Chief Justice Roberts: Was--

Justice O'Connor: --Go ahead.

Chief Justice Roberts: --I was curious, though, which way that fact cut.

I can see the argument that the closer the relationship, the more reasonable it is to say that the one party more or less recognizes that their privacy interests are held hostage to the views of the other.

It's when you get the disrupted relationship, or their adverse interests, that maybe the expectations of privacy, or the reasonableness of one acting as an agent of the other, becomes a little more strained.

Mr. Dreeben: Well, Mr. Chief Justice, I don't think that the law in this area is founded on a notion of agency.

It's founded on a notion of independent authority of each to grant access to the police, to cooperate with law enforcement with respect to premises over which authority is shared.

And in a case like this, the wife has an independent interest in disassociating herself from criminal activity that is going on, on the premises.

Justice Kennedy: But she can do that by advising the police, and then there's probable cause.

Or, if the husband's there, there are probably exigent circumstances.

Mr. Dreeben: Justice Kennedy, there may well be other bases to allow law enforcement activity to go on, but that presupposes that her authority to consent is somehow qualified, if the police could obtain a warrant or some other doctrine, would it support the search?

And this Court has twice rejected exactly that approach to the analysis of consent searches.

Justice Scalia: Mr. Dreeben, does this authority to let someone in, over the objection of the cohabitant, apply only to policemen, or is it... is it also the case that... I don't know, as a matter of, what, property law, or whatever +/?

that when two people have common ownership of a piece of land or a house or whatever, and one of them says,

"I don't want a certain party to come on. "

the tie always goes to the other party, who says,

"I do want somebody to come on. "

is that... is there any cases that establish that proposition?

It seems to me an odd proposition.

I would have thought the opposite.

Mr. Dreeben: Well, the law of property, Justice Scalia, to the extent that it's relevant here, would allow any cotenant to license his or her interest--

Justice O'Connor: But we have not decided Fourth Amendment issues on the basis of the law of property, have we?

Mr. Dreeben: --I quite agree, Justice--

Justice O'Connor: Don't we--

Mr. Dreeben: --O'Connor.

Justice O'Connor: --have to look at social understanding on right to privacy?

And how is it that you can construe, in every instance, a right of a cotenant to override the express objections of the other cotenant, who's there, and says no?

How can you say that's acceptable?

Mr. Dreeben: Well, Justice O'Connor, I certainly do not think that there is any uniform social understanding that should drive the decision in this case, for two different reasons.

First of all, I think, in many circumstances, two people who share property, and who disagree about whether a guest should be invited, will resolve it in a variety of different ways.

Somebody might let in a commercial visitor, over the objection of a cotenant, or someone--

Justice O'Connor: Well, that's possible, but you have a case here where the wife says, "Come in", and the husband is right there and says, "No, you can't".

Mr. Dreeben: --And I think that the other factor that the Court needs to consider in evaluating this is not just social expectations with respect to non law enforcement events and visitors, but this positive, affirmative social interest in encouraging cooperation with the law, which is something that she has the ability to do with respect to property over which she has common authority.

Justice Kennedy: But... well, you keep saying that, but that policy is... can be vindicated by using doctrines other than consent.

And you want us to... I think you want us to say, I think we have to say, that there's a general social expectation that the person who wants entry overrides the person who doesn't.

Mr. Dreeben: I--

Justice Kennedy: And I also agree with Justice Scalia, that social expectation may be, in part, measured by our cases on this subject.

And I just don't see how, if it's against the interest of an occupant to allow entry, that that... that that interest must, necessarily, be overridden.

Mr. Dreeben: --I think that what the Court needs to do is look at the consent search doctrine in relation to third party consents, generally.

Matlock makes quite clear that if the objecting... potentially objecting party, the target of the search, does not voice an objection, then the third party has full authority to allow the search, even if they're--

Justice O'Connor: Well, yes, but there's kind of an assumption there that if the cotenant is not there, sure, you'll let the tenant who is there call the shots.

Mr. Dreeben: --I don't think that, on the facts of either Matlock or Rodriguez, that would be a particularly logical or reasonable assumption.

In Matlock, you're dealing with a man who was arrested for bank robbery in the front lawn of his house, the police take him to a police car, put him in a police car, do not ask him for consent; instead, they go back and they ask the woman, with whom he is living at the house, for consent to search.

Justice Stevens: May I ask--

Mr. Dreeben: Rodriguez is even more dramatic, because, in Rodriguez, the victim of a battery, Gail Fischer, seeks out the police and says,

"I want you to arrest Rodriguez. "

and brings him to the... to... the police to the apartment, where they enter and arrest Rodriguez.

Surely, if Rodriguez had been asked, or if Matlock had been asked, the presumption is, they would have objected.

Justice Stevens: --May I ask two questions?

Seems to me you're... if we're using social analogies in what happens, I imagine that it would make a difference if the person who wants to... who was invited in by the wife, is larger or smaller than the husband.

[Laughter]

And I think he probably would not go in if he thought he was a... could not do so--

[Laughter]

--in his physical encounter.

And the problem with your case here is, the police officer is always larger than the homeowner, and he always has the power to override any physical objection.

So, I think that the... the actual social situation will vary tremendously from different facts as to the fair... and yet, we're looking for a rule that applies equally across the board--

Mr. Dreeben: Well--

Justice Stevens: --in this case.

Mr. Dreeben: --At--

Justice Stevens: And the second question I want you to address at the same time is, What if this was a suitcase that they both owned?

They stopped in the airport.

The wife says,

"I don't want you to open it. "

and her husband says, "Go ahead and open it", or vice versa.

Mr. Dreeben: --Well, Justice Stevens, the second one is the easier one.

The same rule applies.

Anyone who has common authority over the suitcase should be able to cooperate with law enforcement to vindicate both the social interest in cooperating with a law enforcement request and the interests of the person's who's making it.

And I think that that's what Matlock is all about.

Now, as for the attempt to mirror--

Justice Stevens: Well, Matlock is the reasonable police... well, go ahead.

I shouldn't interrupt.

Mr. Dreeben: --The attempt to transpose ordinary social understandings from a myriad of infinitely varied settings that do not involve law enforcement, I submit, will not correctly allow this Court to calibrate what it should be doing, which is balancing the individual interests in privacy against the social interests that affirmatively encourage and validate the use of consent.

And I think what Matlock does, to put this case in context, is to illustrate that if the police had waited until Respondent had left his house to go to work, or to go to court, or to do anything else, or if he had stayed there and gone to sleep at night, then Matlock tells us that she would have full authority to allow the police into the house to conduct a search of common areas.

And, for this Court to announce a rule that says, no, when the person is there on the scene and vocalizes an objection, which we can reasonably presume that he would have if he was given the opportunity to voice it, would mean that police simply have an incentive to find a different way to accomplish the same end.

And I would submit that that does not give adequate--

Justice Stevens: The "different way", of course, would be to get a warrant.

Mr. Dreeben: --An option would be to get a warrant in cases where the police do have probable cause, but, as this Court recognized in Schneckloth versus Bustamonte, the courts... the officers will not always have probable cause.

Justice Ginsburg: Would they, on... in... on these facts... I thought not, but perhaps I was wrong... the... when the police come to the house, they don't suspect anything about cocaine.

Wife then accuses husband of being a cocaine user.

So, that's the first information the police have.

Could they get a warrant, just on her say so?

In fact, they got the straw that had the cocaine residue on it.

They went to the magistrate with that straw, and he gave them a warrant.

But if they had nothing but the wife's accusation,

"He... he's a cocaine user. "

would that amount to probable cause?

Mr. Dreeben: I think it clearly would, Justice Ginsburg.

And the facts in this--

Justice O'Connor: It would, or would not?

Justice Stevens: It would?

Mr. Dreeben: --It would amount to probable cause if the wife, who has... she's in a position where she would know what's going on in the house, what kind of activity is going on in the house, she is a presumptively reliable citizen providing information to the police, and the fact--

Justice Scalia: All she said is, "He's a cocaine user".

Does that... does that... does that give probable cause to believe that there are... you know, that there's contraband on the premises or--

Mr. Dreeben: --Well, that's not all she said, Justice Scalia.

Justice Scalia: --Oh.

Mr. Dreeben: What she said was that there were items of drug evidence--

Justice Scalia: Yes.

Mr. Dreeben: --in the house.

And if you look at the warrant that the officers obtained, it more clearly elaborates that she said there were drugs and paraphernalia.

But, for the Court's purposes, this case is virtually identical to Illinois versus McArthur with respect to the probable cause.

You have a wife and a husband who are in a domestic dispute, and the wife comes out, in Illinois versus McArthur, and tells the officers, you know, "He's got drugs inside there".

And the Court was unanimous, I believe, on the point that that furnished probable cause.

But what is different from Illinois versus McArthur, and this case, is that the police officers have the consent of someone who reasonably appears to them to have common authority, someone who's living in the marital home, someone who is in a position to know what's going on and exercise her own independent authority.

And for this Court to say, "Well, there are alternatives"... you know, the police could pull Respondent out of the house and quarantine it while they go get a warrant, or the police could do other investigation, or they could rely on exigent circumstances... what that does is treats her consent as worth nothing.

It reduces her--

Justice O'Connor: Well, not nothing, because we have cases that have said, if the coinhabitant is not there, he relinquishes whatever right he had to object.

But if the coinhabitant is there, and says no, what's the matter with giving effect to that?

Mr. Dreeben: --I think it's very odd to say that, in Matlock, the right was relinquished, when Matlock was arrested and taken to a police car and was never asked for consent, or that Rodriguez relinquished his right by falling asleep in his own apartment.

What really... I would qualify my statement, though, in response to your comment, Justice O'Connor.

It's not that it treats it as nothing.

It would treat her consent as 100 percent valid when he's asleep or absent, no matter how much we know he would object, and it would treat it as zero when he's on the scene and vocalizes an objection.

And I think that that would protect Fourth Amendment rights only by happenstance, or, worse, it would simply be an invitation to the--

Justice O'Connor: Well, but it's by happenstance that the police find the wife in the house.

I mean, it's six of one, half a dozen of the other.

It's a happenstance.

Mr. Dreeben: --Well, in this case, as in many other cases involving this kind of potential incident, the wife called the police to the scene.

So, there was a reason for them to be on the scene.

It was a perfectly valid investigatory step.

And once they acquired the information relating to drugs on the premises, and had the authority of someone who's in charge of the premises, I submit that the police should be able to conduct the search as a reasonable matter under the Fourth Amendment, just as they would if Respondent had been asleep or if Respondent had said,

"Well, I have to go now. "

"Am I free to go? "

and the police said that, "You are".

And I don't think that it always would be an advantage for the nonconsenting tenant, somebody like Mr. Randolph, to insist on the police getting a warrant or conducting a probable cause arrest.

If he's arrested, he's taken down to the station, he has a search incentive to arrest, he may not get a hearing for 48 hours.

If the police do have to get a warrant, they are entitled to search anywhere and everywhere in the premises; whereas, in this case, one of Respondent's main claims is that she wasn't credible.

Well, if she wasn't credible, and she had led the police upstairs, and the police had found nothing, that might have been the end of the whole incident.

And I think that it's because of the socially valuable function of efficiently resolving accusations, potentially dueling accusations of criminal conduct that consent searches can facilitate, that this Court has said that consent searches are a positive social good and should be encouraged, rather than discouraged.

Justice Thomas: Mr. Dreeben, is it... is this case materially different if she simply ran upstairs, grabbed the straw, brought it down, and handed it to the police officer?

It's, in effect, the same thing, isn't it?

Mr. Dreeben: It is, in effect, the same thing.

And I think that, had that happened, there would have been no question that, assuming that the police reasonably believed that she had authority to do it, and possibly even if they didn't, the contraband would have come into the hands of law enforcement, and there is really no reason, or doctrine under the Fourth Amendment, to deny it.

Justice Kennedy: You want us to take the position that there's no legal difference between, (a) entering a home and taking something, and, (b) receiving it on the outside?

Mr. Dreeben: I think that the difference, when you receive something with the consent of someone who has the authority to exercise control over it, is a question of whether she leads the police upstairs, or whether she brings the item downstairs.

And, for Fourth Amendment purposes, I don't see a difference.

Thank you.

Argument of Thomas C. Goldstein

Chief Justice Roberts: Thank you, Mr. Dreeben.

Mr. Goldstein.

Mr. Goldstein: Thank you, Mr. Chief Justice, and may it please the Court--

The Court should hold that it is not reasonable for officers to conduct a consent search when a person with an equivalent interest in the premises expressly objects.

Chief Justice Roberts: What about the telephone call between a husband and wife, and the wife tells the police, "Listen in on this call"?

She's consented to the monitoring of the conversation, the husband has not.

Maybe he even begins the call by saying,

"I... don't let anybody else listen to this. "

It's clear that that is admissible, isn't it?

Mr. Goldstein: It is, Mr. Chief Justice, although not on the theory of third party consent.

The analog to your hypothetical, which is this Court's decision in Lopez, is Justice Thomas' reference to Coolidge versus New Hampshire... to the New Hampshire case.

And what happens there is, this... Mrs. Randolph could take the cocaine and give it to the officer.

She was participating in giving an item to them.

It is not the same, I think, when she authorizes the police to conduct a generalized search of the premises.

It would be as if--

Chief Justice Roberts: She's consenting.

It's an intrusion, in the one case, on the conversation; in the other case, on the home.

In the telephone case, it's recognized, in the law, the consent of one party subjects the other to having the conversation monitored.

In this case, the consent of one party subjects the other party to the search.

Mr. Goldstein: --But... yes, Mr. Chief Justice.

I do think that Lopez and White, in that line of cases, established that other things that people do consent to can expose us to intrusions on our property.

What I think, however, is, it doesn't follow that she can authorize the... them to conduct a generalized search of the premises.

It's as if she were saying, "You can listen in on"--

Justice Souter: Well--

Mr. Goldstein: --"# all the phone calls"--

Justice Souter: --Excuse me.

Mr. Goldstein: --"# in the house".

Justice Souter: It was... it was the... it was a search only of premises with respect to which she had, supposedly, common rights.

I mean, we take the case on that assumption.

Mr. Goldstein: You do--

Justice Souter: If--

Mr. Goldstein: --Justice Souter.

Justice Souter: --If she and her husband, you know... if she had a right to be in only two rooms, she couldn't authorize the search of the whole house, right?

Mr. Goldstein: That is--

Justice Souter: Okay.

Mr. Goldstein: --correct.

But, Justice Souter, I think the thing that is important... and I want to get to your line of questioning about exactly what the nature of the State's argument is... is that he had a distinct individual right to privacy at the core of the home, as opposed to, for example, information privacy.

Justice Souter: All right, then he--

Chief Justice Roberts: Well, that--

Justice Souter: --if he--

Chief Justice Roberts: --begs the question... it begs the question to say

"it's a distinct individual right to privacy. "

It's a little academic to talk about his individual right to privacy when he's sharing the home with someone else.

Mr. Goldstein: Mr. Chief Justice, that's why I finished off on that.

Let me just focus on the important part of my statement.

And that is, we are talking about a search of the home, at the core of the Fourth Amendment.

This Court's doctrines are quite different about situations in which you share information with third parties.

Let me step back and do the case before Lopez, and then explain how it was extended to Lopez.

Cases like White say,

"If you give information to someone else, you... they can give it to the police without conducting a search of you. "

This is a very different situation.

The police are clearly conducting a search of a premises that I think, Justice Souter, it has to be agreed, he has a reasonable expectation of privacy with respect to.

Now, Justice Souter, it is absolutely right that there are instances in which people have expectations of privacy, and yet searches occur, notwithstanding those.

And there is an argument to be made here that says,

"Look, he has a reasonable expectation of privacy, but the police came in for a different reason. "

That would be true, for example, if there was a warrant; they would come in, notwithstanding his reasonable expectation.

That would be true if there were exigent circumstances.

But the theory of consent is very different.

Schneckloth, Zap, all of the Court's precedents--

Justice Souter: --Well, it... let me make sure I understand where you're going.

We agree that he had a reason... everybody agrees, I guess, that he has a reasonable expectation.

He can... he can raise his Fourth Amendment claim.

Your argument is that, even though we get past the reasonable expectation, there's a second reasonableness question, and that is, Is the search, itself, reasonable?

Mr. Goldstein: --Good guess.

Justice Souter: And that's the focus of your argument--

Mr. Goldstein: Exactly--

Justice Souter: --correct?

Mr. Goldstein: --right.

Justice Souter: Okay.

Mr. Goldstein: But I do think it's important, of course, this Court's precedents have often said that the degree of the expectation informs the reasonableness of the search.

A consent--

Justice Souter: Okay.

Mr. Goldstein: --search is reasonable.

Reasonableness, or course, is a balance--

Justice Breyer: All right.

Well, I... the words that keep going around in my mind... it's her house, too, isn't it?

Mr. Goldstein: --Yes.

Justice Breyer: Well, she wants the policeman in.

So, why does he have more of a right to keep the policeman out than she has to have the policeman in?

Mr. Goldstein: I think everybody makes their--

Justice Scalia: And vice versa.

Mr. Goldstein: --Yes.

I think that--

Justice Breyer: Right.

Mr. Goldstein: --that's the point--

[Laughter]

--is that... that everybody makes some... there are two things.

Justice Breyer: Everybody makes some sacrifices.

Mr. Goldstein: That's--

Justice Breyer: All right--

Mr. Goldstein: --right.

Justice Breyer: --let's think--

Mr. Goldstein: And so, he--

Justice Breyer: --of the need for this, because it's the other thing that's on my mind.

The two words that came into my mind are "spousal abuse".

All right?

I would say maybe there's a pretty good need for this.

The husband's beating her up.

And there isn't evidence of that, but she's sitting in the kitchen table, and the neighbors hear something odd, and they call the police.

"We'd better look into it".

They come to the door.

She says,

"Um, hmmm, oh, I'd like, Officer, for you to just come upstairs to my bedroom for a minute. "

Is there any neighbor, friend, or policeman, in those circumstances, who wouldn't go?

Mr. Goldstein: --Justice Breyer, because she's not authorizing a search... she wants them to come in and talk to her, wherever, in the house... that might be a different case.

The two words--

Justice Breyer: Oh, no.

It's the question of the rule.

I haven't seen anything on your side that would advocate a rule that would not prevent the many, many, many, I believe... I am not an expert... ambiguous cases of domestic spousal abuse from being investigated by the policeman.

And maybe you can tell me you've looked into it empirically and I'm wrong, and that's why I'm bringing it up.

Mr. Goldstein: --Yes.

Okay.

I have, and I can.

Since 1974, when this Court decided Matlock, the Federal and State Courts, combined, have considered this question.

And so, there was a finding of evidence, and it led to a suppression hearing.

That's the best that I can do.

Fifteen times, all the Federal and State Courts, once every two years.

It is the case that in that... in... last year alone, there were 200,000 domestic disputes that were reported.

But that's just the city of Chicago.

What we're considering here is the situation in which there is no real need for the police to--

Justice Breyer: No, no, but... no, I'm not getting your answer.

Are you telling me that it is the law in Chicago, for example, that if a policeman responds to a call, a call of... it's ambiguous... what it says is,

"An anonymous caller said there's an odd situation next door. "

"Will you check out 2355 Maple Street? "

He goes there.

The wife looks a little oddly at him, but they're sitting at the table, and she says,

"Officer, I'd like you to come upstairs with me. "

The husband says no.

Are you saying that the law is clear in Chicago that the policeman can't do it?

Mr. Goldstein: --No.

What I'm--

Justice Breyer: All right.

Where--

Mr. Goldstein: --saying is--

Justice Breyer: --is it clear that the policeman cannot do it?

Mr. Goldstein: --Well, Your Honor, the... it is an unresolved question of--

Justice Breyer: Fine.

Mr. Goldstein: --this Court.

It's--

Justice Breyer: That's what--

Mr. Goldstein: --equally divided--

Justice Breyer: --I thought it was not clear.

And, therefore, what I'm asking you for is... if your rule--

Mr. Goldstein: --Yes.

Justice Breyer: --is the law--

Mr. Goldstein: Yes.

Justice Breyer: --there are 200,000 cases a year in Chicago, alone.

I think that there might be many ambiguous cases.

So, you relieve me of my concern that if you win this case, in those ambiguous situations, where the wife wants the policeman in, and she's afraid to tell him why, until she gets him up to the room... she wants him in... and he, now under your rule, as far as I can see, could not go in.

And I'm telling you, quite frankly, that's what bothers me a lot.

Mr. Goldstein: All right.

Let me answer this on several different levels.

First, there is no serious argument that we interfere with investigating abuse claims.

The conversation can happen.

It may not happen, arguably, in a place that he has a right to privacy, but it can happen outside.

It happens outside all the time.

If there is any suggestion that a reasonable officer would believe that there was an ongoing crime, there was abuse going on right then, then it's clear that exigent circumstances would authorize the--

Justice Breyer: There aren't exigent circumstances.

In the case I'm thinking of, I'm thinking of what I call "ambiguity", and there are many such cases, I believe, of spousal abuse, where the wife is intimidated.

Now, maybe I'm wrong on my facts, but those are the cases I'm worried about.

Mr. Goldstein: --Justice Breyer, I am not an expert in spousal abuse; and so, I'm not... which I think is a very serious issue.

I do know one thing about my rule, and that is that, under our rule, and under the rule that the Georgia Supreme Court articulated, they are allowed to speak with her, including speaking to her outside.

It's true, there may be some sacrifice.

And you have identified a sacrifice.

And that is, she can't take them into a room in which he has a constitutional expectation of privacy.

I will concede that if he says,

"I don't want you in the bedroom. "

that will be a sacrifice.

But what I am saying is that there is no serious argument that they can't have the conversation in a place where she feels secure.

That's on the porch, that's in a police car.

If she says,

"I need you to come up. "

and there's been abuse, then what would have happened in this case... let me explain what happened in this case.

The officers asked Mr. Randolph first.

He said no.

They found out... had found out from her that there was drug paraphernalia on the premises.

What they had to do in order to conduct this search... if they wanted to search, rather than having her bring the materials out... is to pick up the phone and get a telephonic warrant, which would have taken less than 5 minutes.

The real reason I bring to your attention the 200,000 domestic disturbances is that what you should be concerned about, I think, is not the 15 cases, which is not a serious intrusion on law enforcement interests over 30 years, but it's the many times in which our family relationships ebb and flow.

We are concerned here with the person... the Fourth Amendment is... it's not the person who has the drugs or the abuser.

Consent searches involve a situation in which the police come to the door, and they say, "Can we search"?

Because they do as much as they are permitted to do.

And the person just says, "Sure", perhaps completely ignorant of her rights.

There's no reason to believe anything is going on.

And what the State's position is, is that, despite the fact that this is the home, and that the core of the constitutional right to privacy in the text of the Fourth Amendment is that the only thing he can do to be secure in the language of the Constitution is not live with someone else.

Remember, the theory--

Chief Justice Roberts: Well, all--

Justice Scalia: Well, you're--

Chief Justice Roberts: --reflects is the--

Justice Scalia: --Go on.

Chief Justice Roberts: --I was just going to say, it just reflects the expectation of privacy.

And when you do live with someone else, you compromise your individual privacy interest to that extent.

We know that you compromise it to the extent that if you happen not to be there, and that person says,

"Sure, come on in and search. "

that's going to bind you, as well.

Why is it... why do you not compromise the expectation to the extent of giving the other person the right to consent?

Mr. Goldstein: --Mr. Chief Justice, I do think you've put your finger on it.

And I just want to say, Justice Souter, that I do think that the other side's argument inevitably does revolve around this notion of an expectation of privacy.

And, Mr. Chief Justice, I think the expectation is... and this is what the Court said in Minnesota versus Carter... that, while it's technically possible that the people... Minnesota versus Olson, I'm sorry... the people that we live with will admit others over our objection, our expectation about what... about what will happen, our reasonable expectation, is different.

And I also want to take--

Justice Souter: Yes, but Olson was a standing case.

Olson was not confronting this situation.

In Olson, the police simply went in without a warrant.

And the argument was made that this person was not the normal inhabitant of the... what was he?

A houseguest or something of the sort.

And the only issue that Olson addressed was his right to raise a Fourth Amendment claim.

It did not respond to the issue that you are raising, which is the reasonable extent of search.

Mr. Goldstein: --Justice Souter, that's why I, sort of, paused and came to you.

And that is, I do think that the other side's argument... I want to say two things.

One is that it inevitably reduces to the idea that we have a lessened expectation of--

Justice Souter: I don't--

Mr. Goldstein: --privacy--

Justice Souter: --I don't see that--

Mr. Goldstein: --Okay.

Justice Souter: --at all.

Mr. Goldstein: Well--

Justice Souter: They concede... the only expectation of privacy you've got to have for Fourth Amendment purposes in order to raise a claim is a minimal one... they concede that the... that this individual has an expectation of privacy sufficient to raise a Fourth Amendment claim.

Mr. Goldstein: --But--

Justice Souter: Their argument is that, although he can raise it, the rights, however they may be derived on the part of his wife, allowed her to admit the police... in effect, thwarting his expectations.

Your argument, as I understand it, is that when the police search with that kind of permission, over his objection, it's not a reasonable search.

Isn't that the way to structure the issue?

Mr. Goldstein: --Justice Souter, I think it is.

I will only say, in my defense, that their brief articulates it in the manner that I was describing it, I think, with the Chief Justice.

But let me--

Justice Souter: That--

Mr. Goldstein: --let me--

Justice Souter: --I... I agree with you.

Mr. Goldstein: --Okay.

All right.

Justice Souter: There is this talk about lessened--

Mr. Goldstein: Yes.

Justice Souter: --expectation, and I... I think, ultimately, that's irrelevant.

Mr. Goldstein: All right.

Let me look at it through the other lens.

And that is from the perspective of a reasonable police officer.

I think there are two points to make.

The first is, I... the common ground between the sides in the case is, you look at it from the perspective of the person who arrives at the house, and you ask what is reasonable.

And if someone arrives at the house, it is a different matter entirely if, as in Matlock or in Rodriguez, someone says, "Come on in", and they... you believe they have authority over the premises, versus you come to the house and someone with authority over the premises says, "Come on in", and the other person says, "No, stay out".

Justice Souter: Okay.

Now what's your--

Chief Justice Roberts: Well, that's not a fair reading of Rodriguez.

There, it was,

"Come on in, he's asleep. "

It was quite clear that if he were awake, he was going to say, "Don't come in".

Mr. Goldstein: Mr. Chief Justice, the Government has argued successfully in this Court that we don't make any assumptions about whether people will consent or not.

There are innumerable cases in the lower courts--

Justice Souter: --Well, maybe we don't, but isn't there... isn't the... isn't Mr. Dreeben's argument fair that no one in his right mind would have expected Matlock to agree to this?

It is clear that Matlock, had he known what was going on... and he may have; I don't know... would have objected?

So that if we accept your argument that the presence of the person there expressing an objection is what makes the difference, then Matlock and Rodriguez become almost silly cases.

They are... they are... they're cases that rest upon an assumption that is clearly contrary to fact.

Mr. Goldstein: --No, Justice Souter.

And that is, the Government has argued, and this Court has accepted, again... and this is a different point; and that is, you have to have a clear line for police officers that is administrable.

And the line that is reflected in Matlock and Rodriguez is, if you get consent to come into the house from someone who has the common authority to do so, that will be sufficient, but that doesn't mean that if some... and so, you don't have to go around and... finding other people and asking other people.

It's just as if you showed up at a house, and you were invited in.

You wouldn't say,

"Well, let me check with everybody else-- "

Justice Souter: Sure, but--

Mr. Goldstein: --"# who lives here".

Justice Souter: --an equally clear line would simply be that, if the area to be searched is one of common tenancy or occupation or whatnot, the only consent that will suffice will be the consent of the person against whom you expect to use any evidence found.

Easy clear line.

Mr. Goldstein: It's true, Justice Souter, there are a lot of possible clear lines.

What I'm describing to you is why the difference between Matlock and this case is one in kind, and that is that Matlock, I think, reflects an administrable rule, and that is, if you do have permission from someone who has the authority to admit you, you don't have to go ask anybody else.

Justice Souter: Okay.

Mr. Goldstein: But that--

Justice Souter: But an equally administrable rule here is that, even though the person you suspect objects, you can still go in, if a person with authority otherwise says you can.

Equally clear rule, and it has one advantage, it does not turn Matlock and Rodriguez into silly cases.

Mr. Goldstein: --Justice Souter, I don't think they're silly cases.

I think that it is an important rule that the police show up and they are able to rely... if they only hear from one person, they're able to rely on that person.

I don't... the... I'm not claiming that our rule has great administrative advantages over the other side's.

What I'm saying is that it is not necessary to sacrifice the individual's privacy who lives in the house... as you say, has an expectation of privacy.

And so, let me return--

Justice Breyer: An expectation of privacy.

I have a lingering question here I'd like to get your view on.

I don't know what the expectation is, is my problem.

If I think of social... I've never been in a situation, frankly, where one person said, "Stay out", and the other said, "Come in".

So, I don't know what I'd do.

If I imagine myself in a normal social situation, I think probably, if I am the typical person, which may or may not be, I--

[Laughter]

--I think I'd say,

"Well, you know, I don't want to have anything to do with this. "

If it's a dinner party, forget it.

But if I'm in a situation such as the police might be involved in, where I think there is some danger, there is something wrong in the house, there's something odd about it, I don't think the average person would just say, "I'm going away".

I think the average person either would come in, or he'd say,

"I'll come in for a while. "

"I'm going to call the police. "

or they're... you just wouldn't have that reaction,

"I want nothing to do with it. "

That's the reaction, you know... that's a bad reaction, when you want nothing to do with a dangerous situation.

So, I think, in that situation, the normal reaction would be, "I'm going in", or,

"I'm going to get some help. "

or,

"I'm going to get a friend. "

or,

"I'm going to call the police. "

So, I don't know you do have expectations of that kind, in those situations, though you might with a dinner party.

Mr. Goldstein: --Justice Breyer, I think that's why it's important that our rule is not that the police should go away.

We call for a balance here, and--

Justice Breyer: But I want you to address the question of how the legal category of "reasonable expectation of privacy" fits in with what I just said, where I'm assuming, in some social situations, you do think you'd be left alone; but, in the typical situation, stretching well beyond, but certainly including, situations of danger where the police might be involved, you wouldn't have an expectation that you will be left alone.

I want to know how those facts, if they are facts... and you can say they were not... fit within the category called "reasonable expectation of privacy".

Mr. Goldstein: --Justice Breyer, the Court has precedent on this very point, and that is... and, Justice Souter, he is asking about reasonable expectations of privacy... Minnesota versus Olson.

The Court considered this and said the very reason that person had standing and could... had a Fourth Amendment right is because they did have a reasonable expectation of privacy in the premises, that, even though they had no property rights to keep any... this is the overnight guest... had no property rights to keep anybody out at all, their expectation... their reasonable expectation of privacy for Fourth Amendment purposes... is that if somebody wanted to come in, to which they objected, that objection would be honored.

Now, I don't want to lose sight of the fact that our position is the balance; and that is, we don't tell the police to go away.

We say,

"Look, if she tells you that there's contraband in the house, she can bring it out. "

That's the Coolidge case.

And I do think, Justice Thomas, that there is a difference in kind, not degree, in giving something to someone and then having... versus having a uncabined search of a house.

The complaint--

Justice Thomas: The... but this was not an uncabined search.

That's my problem.

What you're... what you're... the bottom, you're saying to us, is that it's not unreasonable... an unreasonable search if she went upstairs and brought the straw down, right?

Mr. Goldstein: --Yes, because that's not a search.

Justice Thomas: Okay.

But you're saying it is an unreasonable search for her to lead the police officer to the straw.

Mr. Goldstein: Justice--

Justice Thomas: Which is what she did.

Mr. Goldstein: --Justice Thomas, it's how it played out, because they stopped the search then, because she withdrew her consent.

But what she authorized was something very different.

She--

Justice Thomas: But she withdrew it after he observed the straw.

Mr. Goldstein: --Yes, Justice Thomas, that's absolutely correct.

My point, instead, is that what happened here, in terms of the consent, and what the State's rule of law would authorize, and what Matlock and Rodriguez authorize if they're extended to this point, is not, "Take me to the drugs", which is an interesting proposition, but, instead,

"Go ahead and search the whole house. "

So, our point, Justice Breyer is,

"Look, don't leave. "

"Get a telephonic warrant. "

"It takes 5 minutes. "

"If you know there's something in the house, bring it out. "

"If you have anything to... any reason to believe there's ongoing criminality, seal the house. "

Justice Kennedy: Now, any reason to believe--

Mr. Goldstein: Of--

Justice Kennedy: --but--

Mr. Goldstein: --Sorry.

Justice Kennedy: --you can't enter without probable cause.

Mr. Goldstein: Right.

Justice Kennedy: And that's a... with exigent circumstances.

Mr. Goldstein: Yes.

Justice Kennedy: Suppose you have suspicions of a domestic problem that's ongoing.

It's short of probable cause, but you have reasonable suspicion.

Does that alter the nonconsenting party's interest and elevate the consenting party's interest?

Mr. Goldstein: Justice Kennedy, I don't think that it does.

Our view of the law is that the question is, When the property rights are... and their... their control over the property, I should say; I don't mean to invoke the common law... when the control over the property is equivalent, then, in that tie, if you will, the Fourth Amendment controls.

If... there are doctrines designed to protect against situations in which you have concerns about ongoing criminality and protecting people.

But that's--

Chief Justice Roberts: You talk about that tie.

Your approach applies in the case... a dormitory, you have a common room, there are ten rooms off of it, nine people say,

"Sure, come on in and search. "

and the one person says, "No".

That one person exercises a veto over a search of the common area?

Mr. Goldstein: --Mr. Chief Justice, the straightforward rule that I have argued for today is that if you have an equivalent interest in the premises... it is, of course, the State's rule that, if nine people object, Matlock says that any one of them can let them in, and an individual can override the objections of everybody else in the house.

What I'm saying, I think, just to return to the basics, is, I do think--

Chief Justice Roberts: What... well, what is your answer--

Mr. Goldstein: --I'm sorry.

Chief Justice Roberts: --to that case?

Your case is that, if one out of ten who share the common room says to the police, "You may not come in", that controls?

Mr. Goldstein: I don't think that has to follow from our rule.

It's true, we have articulated one broad rule that would allow the Fourth Amendment to control, but I think if we analogize to the social situation... if you said to yourself,

"What do you expect will happen if nine people that you live with want to let in someone and you're the only one who's going to object? "

--I think it would be perfectly reasonable to say to... that individual expects the... them to come in.

Justice Souter, let me return... I want to make sure I--

Justice Souter: But the... I... you assume we got... there goes the... that... there goes any bright line administrable rule, I guess.

[Laughter]

Mr. Goldstein: --Justice Souter, I honestly don't think that's true.

I think that Illinois versus Rodriguez, on this question, which is assessing the degree of the authority over the premises, does call for a "totality of the circumstances" inquiry.

I also don't know that I fully answered your point, that we look at this question from the perspective of the officer and the reasonableness of the search.

And let me just say that, in Matlock and in Rodriguez, the Court's analysis was that it's reasonable, because the person whose privacy is intruded on has assumed some risk.

The Court does look to the privacy interests of the person who is ultimately the defendant.

That's a... an element of the reasonableness inquiry.

And our point, fundamentally, is that it cannot be the case that when the framers enacted the Fourth Amendment so that you could live with other people and have a private space away from the Government, that you, merely by living with your family, assume the risk that your privacy will be lost.

That assumption of the risk--

Chief Justice Roberts: So, can I just take the next step in my hypothetical?

The wife and the two adult children who live in the home say, "Come on in", and the husband says, "No".

What happens then?

Mr. Goldstein: --On our broadest rule, the husband would control, although it doesn't follow, from our... that, to affirm the judgment, you have to say that, because I think you could say that, reasonably, the person realizes they would be outvoted.

But I do think the children is an important point.

Chief Justice Roberts: Reasonably, the person realizes he would be outvoted?

Mr. Goldstein: Yes.

Chief Justice Roberts: So, it does go to his presumably objectively reasonable views of what nature of privacy he has.

Mr. Goldstein: Yes.

And what--

Chief Justice Roberts: So, if he thinks,

"Look, I've been having a bad time with my wife. "

"I think she's going to consent and let the police in if I'm not. "

--then his objection shouldn't control?

Mr. Goldstein: --Mr. Chief Justice, when... I agree with you objectively.

This Court didn't, for example, in Matlock and Rodriguez, look at the particular family dynamics at that time.

It looks to broader social understandings.

I did want to return to your "children" point.

Remember... and I think this is a vital point... and that is, the Courts of Appeals uniformly conclude, after Matlock and Rodriguez, that children are residents, which is the inquiry in Illinois versus Rodriguez, and they can give consent to search a home.

It necessarily follows that if you extend that rule, Matlock and Rodriguez, to this case, that children, because they have the authority to admit the police... minor children, 12, 14, 15... can then authorize the search, notwithstanding the objection of the parents.

Now, if everyone agrees,

"That can't be right, it's the parents' home. "

that's because we are assessing--

Justice Ginsburg: What is the case that says that, that the child's invitation overrides the parents' objection?

Mr. Goldstein: --Justice Ginsburg, that question hasn't been confronted by any court we've checked.

But what I... what the Courts of Appeals have confronted repeatedly, and uniformly agree... and it's in our brief... is that children satisfy the Matlock and Rodriguez--

Justice Ginsburg: So--

Mr. Goldstein: --standard.

Justice Ginsburg: --would a mother in law.

[Laughter]

Mr. Goldstein: Yes.

Chief Justice Roberts: But they don't have the same... they don't have the same property interest as a spouse does, as a tenant in common or whatever.

The child doesn't have that interest in the home.

Mr. Goldstein: Mr. Chief Justice, that's right, but, of course, that's not the inquiry under Matlock and Rodriguez.

If we take your point, then we are definitely moving beyond Matlock and Rodriguez.

We're going to have to look to more.

And my point is that, if we do look to more than simply the fact that the officers have found someone, however ignorant, has the ability to consent in their own right, if we're going to assess the other factors, the rule should look... the Court should look to what the ordinary social understandings and--

Justice Ginsburg: Mr. Goldstein, your time is almost up, but I want to know if you place any weight at all on the fact that the husband was the target in this case.

The target said, "No", and the one who wasn't under suspicion said, "Yes".

Does that make any difference?

Mr. Goldstein: --The... I do not believe, as a matter of doctrine, that it does.

I do think, however, that it informs this Court's analysis of reasonableness, in the sense that the Court, in Schneckloth, said,

"We are not going to allow consent to circumvent the requirements of getting a warrant. "

And it is the case... we have to inescapably agree, I think, that this is simply a way of getting around the warrant requirement.

They wanted to find out something about him.

He had a privacy interest in the premises.

He said, "No".

The Constitution says,

"You have somebody who's cooperating with you. "

"Let them tell you what's going on in the house. "

And Illinois versus McArthur says, "Seal off the premises".

In fact, Illinois versus McArthur is... the very point of the Court in that case was that it's much better to seal the premises and get a warrant, which will define--

Justice Breyer: Was there anybody in that case who... since I wrote it, I guess I'm supposed to know it in detail, but I don't--

[Laughter]

--and I thought, was... there was no one... no consent there.

There was nobody giving consent, was there?

Mr. Goldstein: --Oh, Justice--

Justice Breyer: Was there?

Mr. Goldstein: --Justice Breyer--

Justice Breyer: I'll go back and read it.

Mr. Goldstein: --she said, "I think you should"... she said--

Justice Breyer: I'll reread it.

[Laughter]

Mr. Goldstein: --Okay.

She said,

"I think you should go in there and get it. "

Justice Breyer: Uh huh.

Mr. Goldstein: But, inescapably, what's going on, there are... I think that this is not a case that follows, necessarily, from Matlock and Rodriguez.

And there is a bright line to be drawn, and that is, you are going to have to not live with your family, which is precisely what the Fourth Amendment is about, in order not to assume the risk of the police coming in.

The reasonableness determination is a balancing of law enforcement and privacy interests.

The privacy interests are very high.

The police can easily get a telephonic warrant or have the materials brought out to them.

It is not necessary to take this case, when so rarely has it been that the police have needed to use this authority.

If there are no further questions.

Rebuttal of Paula K. Smith

Chief Justice Roberts: Thank you, Mr. Goldstein.

Ms. Smith, you have a minute and a half remaining.

Mr. Smith: No rebuttal, Your Honor.

Chief Justice Roberts: The case is submitted.