Generally, searches of residences must be supported by probable cause and a warrant. However, the courts have recognized exceptions to this general principal, such as consent and exigent circumstances. On March 4, 2014, the Court of Appeals of Georgia decided Payton v. State [i] which serves as an excellent review of the law related to consent searches of residences. The facts of Payton, taken directly from the case, are as follows:
The evidence shows that in August 2011, and for two years prior to this time, Payton lived in a residence at 186 Candler Road in Jones County. Ennis Grady Odom owned the residence, and although he considers Payton to be his grandson, there is no blood relation between the two. Odom, two other unrelated individuals, and Payton all had separate bedrooms in the house. Payton’s girlfriend also resided at the house and shared a bedroom with Payton.
On August 5, 2011, Odom heard a rumbling coming from inside his house, and he then saw Payton and his girlfriend fighting as they came out of their bedroom. According to Odom, Payton and the girlfriend fought down the hallway and into the kitchen, where she grabbed two knives and slashed at Payton, causing several minor wounds. Odom then called the police.
The responding police officer spoke to Payton, his girlfriend, and Odom, who gave a written statement to police. According to the police officer, Payton appeared to be under the influence of drugs or alcohol because he was jumpy, he exhibited dramatic mood swings, and his eyes were bloodshot and glossy. During his investigation, the police officer noticed fresh blood on Payton’s hand, broken furniture, blood in the kitchen and on a broken chair, and a few knives on the kitchen countertop. The officer then arrested Payton and his girlfriend for domestic violence.
After putting Payton into a patrol car, the police officer expressed to Odom that Payton might be involved with drugs and asked for permission to search Payton’s room. The police officer testified that Odom expressed frustration with Payton and his girlfriend because they lived in his house and ate his food without paying for anything. The police officer testified that he understood Odom’s statement to mean that neither Payton nor his girlfriend paid any rent. The police officer further testified that Odom then gave permission to search Payton’s room. The police officer used a drug dog to assist in the search of Payton’s room, and the drug dog alerted to a speaker in Payton’s room. The police officer found cocaine and alprazolam inside the speaker and a marijuana cigarette in an ashtray on a dresser.
Payton was subsequently charged with possession of cocaine, alprazolam, and marijuana, as well as aggravated assault and simple battery. [ii]
Payton filed a motion to suppress and argued that he was a tenant and as such, Odom did not have the authority to consent to a search of his room. The trial court found that he was a guest, rather than a tenant, and denied the motion. Payton appealed the denial of the motion to suppress to the Court of Appeals of Georgia.
There were two main issues for the court to address on appeal. First, was whether Payton was a guest, rather than a tenant, such that Odom could validly consent to a search of Payton’s room, as the “head of the household.” Second, was whether the police were obligated to ask for Payton’s consent to search his room as he was already arrested and in the back of a police car when consent was requested from Odom.
The court then examined rules pertinent to the first issue. First the court stated:
While a person may have a reasonable expectation of privacy, a warrantless search of a residence may nevertheless “be authorized by the consent of any person who possesses common authority over or sufficient relationship to the premises to be searched.” (Citations and punctuation omitted; emphasis supplied.) Smith v. State, 264 Ga. 87, 87-88 (2) (441 SE2d 241) (1994); see also Rockholt v. State, 291 Ga. 85, 88 (2) (727 SE2d 492) (2012) (although defendant, as an overnight guest of a residence, has a reasonable expectation of privacy, the resident owner’s consent to a search gives officers the legal authority to conduct a warrantless search). The “common authority over the premises” is one independent prong unrelated to the second prong of “sufficient relationship to the premises.” State v. West, 237 Ga. App. 185, 185-186 (514 SE2d 257) (1999). As a result, it is the general rule that the voluntary consent of the head of a household to the search of premises owned or controlled by such head of the household is sufficient to authorize a search of the premises without a search warrant, and such search does not violate the constitutional prohibition against unreasonable searches and seizures. [iii] [emphasis added]
However, the court also noted that a landlord cannot consent to the search of a tenant’s quarters. As such, whether Payton was a tenant or merely a guest was important in the determination of whether Odom could consent to a search of Payton’s room. The trial court credited the testimony of the officers that, on the scene, Odom stated that Payton did not pay rent, pay for food in lieu of rent or anything. Whereas, in court, Odom changed his story to say that Payton paid $75 per week rent. Since there was no evidence of this, the trial court discredited that testimony and found that, since no landlord/tenant relationship existed between Odom and Payton, Odom’s consent to search Payton’s room was valid since he was the “head of the household.”
The court stated:
Since the trial court found that Payton was a guest in Odom’s house, Odom, as the resident homeowner, was authorized to consent to the search of Payton’s bedroom, regardless of whether Payton was an adult, locked his door, or kept Odom out of his bedroom. [iv]
Additionally, the court of appeals noted that even if Odom lacked authority to consent as the head of the household, it was reasonable for the police to believe he had such authority. The court of appeals stated that the police don’t always have to be correct, but rather they must act reasonable. The court stated:
Even if Odom did not have the authority to consent to a search of Payton’s bedroom, the search was nevertheless reasonable. In Illinois v. Rodriguez, 497 U. S. 177 (110 SCt 2793, 111 LE2d 148) (1990), the United States Supreme Court held that a search is reasonable when it is based on the consent of a person whom officers reasonably, but erroneously, believe has authority to consent to the search. Id. at 186 (III) (B). As the Supreme Court explained in Rodriguez, the Fourth Amendment does not require that officers “always be correct, but that they always be reasonable.” Id. at 185 (III) (B). This Court has endorsed the Rodriguez principle in several decisions. See, e.g., State v. Parrish, 302 Ga. App. 838, 840 (691 SE2d 888) (2010) (“A warrantless search based upon the consent of a third party will be deemed valid when, at the time of entry, police reasonably believe that the third party possesses common authority over the area to be searched.”) [v]
In this case, since the police were told by Odom he owned the home, and that Payton did not pay rent it was reasonable for them to believe Odom had the authority to consent to the search of Payton’s room.
As to the issue of whether the police were obligated to give Odom an opportunity to object to the search, despite the fact that he was not present when the officers asked for consent to search from Odom, the court stated:
Payton’s argument that Georgia v. Randolph, 547 U. S. 103 (126 SCt 1515, 164 LE2d 208) (2006), and Preston v. State, 296 Ga. App. 655 (675 SE2d 553) (2009), require a different result is without merit. In Randolph, the United States Supreme Court held that where co-residents of a house are present, and one consents to a search while the other objects, the search is unreasonable. 547 U. S. at 120 (II) (D). The Randolph Court, however, drew an admittedly “fine line” between two scenarios stating: “if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold inquiry, loses out.” (Emphasis supplied.) Id. at 121 (II) (E); see also Preston, supra, 296 Ga. App. at 658. The Randolph Court held that this “fine line” was justified so long as there was no evidence that the police removed the potentially objecting tenant for the sake of avoiding a possible objection. Randolph, supra, 547 U. S. at 121 (II) (E). Although Payton argues that the police officers should have given him the opportunity to object to the search, nothing in Randolph suggests that the police must offer such an opportunity. To the contrary, the Randolph Court expressly held that police officers are not required to required “to find a potentially objecting co-tenant before acting on the permission they had already received.” Id. at 122 (II) (E). Analyzing Randolph, the Preston Court made a limited holding that “if an occupant is at the door, . . . , then the officers must inform that occupant that they are conducting a search pursuant to a co-occupant’s consent” in order for the search to be reasonable. Preston, supra, 296 Ga. App. at 658. [vi] [emphasis added]
The court of appeals then noted that the police did not go to Odom’s house for the purpose of asking for consent to search for contraband. Rather, they went there because they were dispatched to a domestic dispute. The court also noted that Payton was not removed from the scene and placed in the backseat of a police car to remove him from possibly objecting to the search. Rather, that was part of the investigation and handling of the dispatch at hand. As such, the court held that the police were not required to ask Payton for his consent, since they reasonably believed Odom had the authority to consent as the head of the household.
Thus, the court of appeals affirmed the denial of the motion to suppress.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] A13A1980 (Ga. App. March 4, 2014)
[iv] Id. (see e.g., Warner, supra, 299 Ga. App. at 58-59 (1) (evidence showing that parents were heads of household, as opposed to landlords, supported trial court’s finding that parents were authorized to consent to a search of their college-age son’s bedroom); West, supra, 237 Ga. App. at 186-187 (resident homeowner had the right to enter the room of her adult son who did not pay rent, regardless of factors such as access or mutual use, and could assign that right to police officers); Howard v. State, 207 Ga. App. 125, 126 (1) (427 SE2d 96) (1993) (defendant’s mother, who co-owned residence with defendant’s father, had a sufficient relationship to premises to consent to warrantless search of her adult son’s bedroom because there was no landlord-tenant relationship between the defendant and his mother).