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Abstract

In Georgia v. Randolph, the U.S. Supreme Court held that, where two occupants of a home disagree over whether to grant police permission to search, the “physically present co-occupant’s stated refusal to permit entry prevails.” Courts are now split, however, over whether police may nevertheless conduct a warrantless search with the consent of one resident after a co-occupant who expressly denies consent is arrested and removed by the police. This Note examines the rationales of those U.S. courts of appeals that have confronted these circumstances and ultimately concludes that the Supreme Court’s complicated—and sometimes contradictory—Fourth Amendment jurisprudence does not offer a satisfactory solution to the problem. In its place, this Note offers a different approach to third-party consent cases, advocating a division between two distinct types of searches: investigative consent searches and searches invited by a citizen in distress.

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