The Court of Appeals granted an interlocutory appeal to review the trial court’s denial of defendant Scott Fitz Randolph’s motion to suppress evidence seized from his home in a warrantless search conducted by law enforcement officers pursuant to permission given by Randolph’s wife in Randolph’s presence after Randolph had refused to give the officers permission to search. The Court of Appeals determined the motion to suppress should have been granted. Randolph v. State , 264 Ga. App. 396 1 590 SE2d 834 2003. We granted the State’s petition for a writ of certiorari to decide whether an occupant may give valid consent to search common areas of a premises shared by another occupant who is present and objects to the search. Inasmuch as we are faced with a situation in which two persons have equal use and control of the premises to be searched, we conclude the consent to conduct a warrantless search of a residence given by one occupant is not valid in the face of the refusal of another occupant who is physically present at the scene to permit a warrantless search. Accordingly, we affirm the judgment of the Court of Appeals. “The Fourth Amendment to the U.S. Constitution generally prohibits the warrantless entry of a person’s home, whether to make an arrest or to search for specific objects. Cits.. The prohibition does not apply, however, to situations in which voluntary consent has been obtained, either from the individual whose property is searched cit., or from a third party who possesses common authority over the premises, see United States v. Matlock , 415 U.S. 164 at 174 94 SC 988, 39 LE2d 242 1974.” Illinois v. Rodriguez , 497 U.S. 177, 181 110 SC 2793, 111 LE2d 148 1990. In U.S. v. Matlock , supra, 415 U.S. at 170,the U.S. Supreme Court noted a clear indication in case law that “the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.” Both this Court and the Court of Appeals of Georgia have rejected legal challenges to warrantless searches conducted with the consent of a person who shared with the defendant common control and authority over the area searched. See, e.g., Presnell v. State , 274 Ga. 246 8 551 SE2d 723 2001; Smith v. State , 264 Ga. 87 2 441 SE2d 241 1994; Walsh v. State , 236 Ga. App. 558 2 512 SE2d 408 1999; Valenzuela v. State , 157 Ga. App. 247 1 277 SE2d 56 1981. The basis for the decisions in these cases was the recognition that “any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” U.S. v. Matlock , supra, 415 U.S. at 171, n.7.
In neither Matlock nor any of the Georgia cases cited above, however, were law enforcement officers faced with the physical presence of joint occupants, with one consenting to the search and the other objecting.1 While one co-inhabitant may have assumed the risk that a second co-inhabitant will consent to a search of common areas in the absence of the first co-inhabitant U.S. v. Matlock , supra, 415 U.S. at 170, the risk assumed by joint occupancy goes no further —the risk “is merely an inability to control access to the premises during one’s absence.” 3 LaFave, Search and Seizure , § 8.3d, p. 731 3rd ed. 1996. See also In the Matter and Welfare of D.A.G. , 484 NW2d 787, 789 Minn. 1992. While a co-inhabitant has authority to consent to a search of joint premises, “a present, objecting party should not have his constitutional rights ignored . . . due to a property interest shared with another.” Silva v. State , 344 So2d. 559, 562 Fla. 1977. We agree with the Supreme Court of Washington, which concluded in State v. Leach , 113 Wash.2d 735, 744 782 P2d 1035, 1040 1989: Where the police have obtained consent to search from an individual possessing, at best, equal control over the premises, that consent remains valid against a cohabitant, who also possesses equal control, only while the cohabitant is absent. However, should the cohabitant be present and able to object, the police must also obtain the cohabitant’s consent. Any other rule exalts expediency over an individual’s Fourth Amendment guarantees. Accordingly, we affirm the judgment of the Court of Appeals which reversed the trial court’s denial of Randolph’s motion to suppress.
