dissenting.
We granted certiorari in this case in order to address the admissibility of evidence seized during a warrantless search where a person with shared authority to grant consent to search does so despite the *616objection of the subject of the search. Ignoring the nearly uniform interpretation of United States v. Matlock, 415 U. S. 164 (II) (94 SC 988, 39 LE2d 242) (1974),2 that the third-party consent rule applies even when a present subject of the search objects, the majority has chosen to follow a ruling that expresses the minority view on this issue.3 Because I believe the rule announced in State v. Leach, 782 P2d 1035 (Wash. 1989), that any co-occupant’s opposition to the search can vitiate the express consent of another co-occupant with common authority over the premises, represents an unjustified break with Georgia case law, I must dissent.
The majority acknowledges that consent is a well-recognized exception to the warrant requirement of the Fourth Amendment, see Illinois v. Rodriguez, 497 U. S. 177 (II) (110 SC 2793, 111 LE2d 148) (1990), and that a warrantless search without probable cause does not violate the Fourth Amendment if the authorities have obtained the voluntary consent of a person authorized to grant such consent. See United States v. Matlock, supra; United States v. Elliott, 50 F3d 180 (II) (2d Cir. 1995). It also acknowledges that Georgia has long relied on the Matlock rule by correctly stating that our courts have consistently “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.” Majority p. 614. Nevertheless, even though the facts of this case clearly establish the authority of Randolph’s wife to consent to a search of their shared home and bedroom and that Randolph as the joint occupant of the home assumed the risk that his wife would expose their common private areas to such a search, the majority ignores the approach sanctioned by numerous federal and state courts and unpersuasively cites to only a few cases and a general treatise on criminal law to conclude that a challenge to a search is not fully resolved by proof of effective consent when any co-occupant is present and protests. In my opinion the majority’s claim of unconstitutionality of the search based on express refusal is not more viable than a *617claim based on lack of express consent. Under Matlock the co-occupant that expressly refuses to give consent to search does not enjoy a greater expectation of privacy because in sharing the property the co-occupant assumed the risk that another would consent to a search. United States v. Sumlin, 567 F2d 684, 687-688 (6th Cir. 1977).
Decided November 8, 2004. Cecilia M. Cooper, District Attorney, Richard E. Thomas, Assistant District Attorney, for appellant. Collier & Gamble, Wilbur T Gamble III, for appellee.I would not hold the express refusal of one co-occupant to be paramount. Instead, I would embrace the principles recognized in Matlock to look not to the defendant’s presence or absence but to whether or not he assumed the risk that the third party who possessed common authority over the premises would permit inspection in his own right. In my view, Randolph assumed the risk that because of his diminished expectation of privacy he had in the home he shared with his wife, she would “expos [e] their common private area[ ] to such a search,” United States v. Sumlin, supra, and that his opposition to the presence of police in his home would not override his wife’s consent. I would conclude that even though Randolph was present and objected, once Randolph’s wife gave valid consent to the search of the home she shared with Randolph, that was sufficient to authorize the search. Accordingly, I would reverse the Court of Appeals and affirm the decision of the trial court on this evidentiary issue.
I am authorized to state that Justice Carley and Justice Hines join in this dissent.
See, e.g., United States v. Shelton, 337 F3d 529 (5th Cir. 2003); United States v. Aghedo, 159 F3d 308 (II) (A) (7th Cir. 1998) (co-occupant’s access and control of room gives defendant reduced expectation of privacy in premises or shared items); United States v. Canada, 527 F2d 1374, 1379 (9th Cir. 1976); United States v. Morning, 64 F3d 531 (9th Cir. 1995) (valid consent of person with common authority justifies search although co-occupant physically present and objects); Lenz v. Winburn, 51 F3d 1540, 1548 (11th Cir. 1995) (Matlock third-party consent rule “applies even when a present subject of the search objects”); United States v. Donlin, 982 F2d 31 (I) (1st Cir. 1992) (third-party consent remains valid even when defendant specifically objects); United States v. McAlpine, 919 F2d 1461 (10th Cir. 1990); United States v. Bethea, 598 F2d 331, 335 (4th Cir. 1979) (by sharing common area defendant assumed risk co-occupant might consent to search even when he, himself, was present).
See State v. Leach, 782 P2d 1035 (Wash. 1989); Silva v. State, 344 S2d 559 (Fla. 1977).