TX: Georgia v. Randolph on the co-owner’s veto of co-occupant consent does not apply to vehicles

Georgia v. Randolph on the co-owner’s veto of co-occupant consent does not apply to vehicles. State v. Copeland, 399 S.W.3d 159 (Tex. Crim. App. 2013) (dissent):

B. Randolph is Inapplicable to Vehicles

1. Social Expectations For Vehicle Occupants Unlike Tenants

We conclude that the principle that underlies Randolph weighs against the treatment of vehicles as mobile “castles.” Unlike homes occupied by general co-tenants, society does generally recognize a hierarchy with respect to the occupants of a vehicle. The driver is the person who has the superior right. For example, a police officer arresting a driver usually asks him, alone, whether he wants his vehicle towed or released to another person. And it is the driver who receives a traffic citation. A bus driver has a responsibility to maintain the safety of his passengers. A sensible would-be passenger wanting a ride would likely accept an offer from a driver even in the presence of an objecting passenger because a driver exclusively controls the destination. As the person with the exclusive control over the operation of the vehicle, a driver necessarily is placed in a superior role with respect to the society within the vehicle.5 The passengers of the vehicle become subservient to his control. Like the hierarchy of parent and child, to which Randolph would not apply, Randolph would not apply to the hierarchy that generally applies to a driver and passenger of a vehicle during the ordinary course of travels.

At first blush, this would seem to suggest that, as long as a law-enforcement officer has the consent of a driver, no other consent is necessary or pertinent. But that is not necessarily so in all cases. After a vehicle is stopped on a public roadway, events may transpire that change the positions of the occupants in the hierarchy of the vehicle and that would likely change society’s expectations with respect to which occupant controls the vehicle. For example, the driver may be arrested and he may thereafter permit a passenger to take control of his vehicle. See, e.g., Welch v. State, 93 S.W.3d 50, 53 (Tex. Crim. App. 2002). The officer may learn that the driver is operating the car with the permission of the passenger, whose family owns the car. See, e.g., Houston v. State, 286 S.W.3d 604, 611 (Tex. App.—Beaumont 2009, pet. ref’d). Or a police officer’s further investigation at the scene may reveal that a passenger is the owner of the vehicle and all its contents, and that the driver is merely a chauffeur.6 Events like these would likely change society’s expectations to include consideration of a passenger’s control over the vehicle as equal, and possibly superior, to that of the driver. These types of fluid events that may occur during a traffic stop make a decision about who, other than the driver, might control a vehicle unlike the more stagnant inquiry of a tenant who answers the door at a residence. In Randolph, the Supreme Court considered the clarity of the determination to be made by an officer in light of an easily identifiable tenant at a residence. Id. at 111. It observed that if Mrs. Graff answered “the door of a domestic dwelling with a baby at her hip,” that alone was enough “to tell a law enforcement officer or any other visitor that if she occupies the place along with others, she probably lives there subject to the assumption tenants usually make about their common authority when they share quarters.” Id. But telltale signs like a baby at a mother’s hip will be absent in light of seatbelt laws for vehicles. Because of these differences between homes and vehicles, social expectations about vehicles include the recognition that a driver’s control may quickly and unexpectedly be relegated to another as circumstances change. The mobility of the vehicle, fluidity of circumstances, and rapidity with which decisions must be made make it unreasonable to expect a police officer to assess the social expectations for each of the case-by-case determinations about who may override a driver’s control.