Beginning in 1969 with Frazier v. Cupp and extending through early 2006, the Supreme Court followed a trend of expanding the scope of lawful warrantless consent searches and correspondingly limiting privacy rights under the Fourth Amendment. Most likely, Georgia v. Randolph will be remembered as a bump along the road toward an ever-expanding consent doctrine. Despite Chief Justice Roberts' concerns, post-Randolph case law reveals that Randolph is not the watershed case its dissenters feared. Part II of this article summarizes the Randolph decision with emphasis on the Court's express limitations of its rule. Part III describes various post-Randolph cases that illustrate the first two categories of cases. Part IV provides examples of cases falling within category three. Part V summarizes cases that hinge on the sufficiency of a purported refusal of consent, thereby encompassing case categories four and five. Before turning to the article's proposal, Part VI reviews two opinions that have explicitly extended Randolph. The final Part contends that, in light of the lower courts' dismantling of Randolph, the Supreme Court must either allow Randolph to die a slow death of narrow interpretation or strengthen Randolph by expanding its physical presence and express objection requirements. Part VII presents a solution that would both strengthen Randolph, while simultaneously easing the concerns of Randolph's dissenters by ensuring that officer motivations are not overly scrutinized.
What the High Court giveth the Lower Courts taketh Away: How to Prevent Undue Scrutiny of Police Officer Motivations without Eroding Randolph's Heightened Fourth Amendment Protections,
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available at http://engagedscholarship.csuohio.edu/clevstlrev/vol56/iss3/6