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Supreme Court Voids Search Over Consent Issue

There's a knock on your door. The police are there, asking if they can come in and search. You and your wife answer the door. Your wife says yes, you say no. Can the police come in and search?

The Supreme Court said "no" today -- when both parties are present and one objects, the police cannot come in.

- A divided U.S. Supreme Court ruled on Wednesday that the police cannot enter a home and seize evidence without a warrant when one occupant agreed to the search after the other occupant refused permission. By a 5-3 vote, the high court said the husband's refusal in a case from Georgia was clear, making the search unreasonable and invalid, despite his wife's approval for it.

The narrowly written ruling was a defeat for the state of Georgia and for the U.S. Justice Department, which had argued that the search of a residence should be allowed when one occupant consents, even if the other occupant objects.

Judge Alito did not participate. Roberts, Scalia and Thomas dissented. Souter, who wrote the majority opinion, criticized Roberts' dissent:

Under the dissent's view, he wrote, "The centuries of special protection for the privacy of the home are over."

Just wait till Alito gets to vote. Fourth Amendment rights won't just be over, they'll be a relic.

The case is Georgia v. Randolph. Via How Appealing:

You can access the syllabus here; Justice Souter's opinion here; Justice John Paul Stevens' concurring opinion here; Justice Stephen G. Breyer's concurring opinion here; Chief Justice John G. Roberts, Jr.'s dissenting opinion here; Justice Antonin Scalia's dissenting opinion here; Justice Clarence Thomas's dissenting opinion here; and the oral argument transcript here.

Update: McJoan at Daily Kos says:

Scalito did not participate because Justice Kennedy voted with Souter. If Kennedy went the other way, the case would have been reargued. The battle for the soul of Anthony Kennedy has been joined.

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    Re: Supreme Court Voids Search Over Consent Issue (none / 0) (#1)
    by swingvote on Wed Mar 22, 2006 at 09:07:16 AM EST
    This seems like a good decision, but it does raise some valid questions. I wonder what would happen if I had an engraved plaque made reading "No Police Searches Without a Warrant - The Owner of This Residence" and bolted it to the front door of my house. Would that suffice to stop my wife from allowing the police to search the house even if I wasn't home? Robert's does, after all, have a point. Someone sleeping, or just in another room and unaware that the police are at the door, would not seem to have this protection granted them. What happens if the spouse agrees to a search, the police come in, and then the other spouse realizes they are there and says no? Do they still get to search the house? And what about the idea of spousal abuse cases where the wife is trying to get the cops to come in to see what's going on and the husband keeps refusing entry? Hopefully these issues will get resolved sooner rather than later, as it seems this ruling still leaves some loopholes going in both directions.

    Re: Supreme Court Voids Search Over Consent Issue (none / 0) (#2)
    by Che's Lounge on Wed Mar 22, 2006 at 09:31:44 AM EST
    Good decision. The dissenters are fascists. No regard for the 4th amendment. Impeach them also. Does the Constitution mean nothing to these nazis?

    just paul wrote:
    And what about the idea of spousal abuse cases where the wife is trying to get the cops to come in to see what's going on and the husband keeps refusing entry?"
    from the NY Times
    "'This case has no bearing on the capacity of the police to protect domestic victims,'' Souter wrote. ''No question has been raised, or reasonably could be, about the authority of the police to enter a dwelling to protect a resident from domestic violence; so long as they have good reason to believe such a threat exists.''"
    i actually cheered when i read the headline.

    Re: Supreme Court Voids Search Over Consent Issue (none / 0) (#4)
    by swingvote on Wed Mar 22, 2006 at 09:49:52 AM EST
    Thank you, Jessica. Hopefully at least loophole has been fully closed.

    Re: Supreme Court Voids Search Over Consent Issue (none / 0) (#5)
    by kdog on Wed Mar 22, 2006 at 09:51:51 AM EST
    Good ruling..all is not not lost on the freedom front. It amazes me that this case made it all the way to the SC. To this layman, it's common sense that one individual can not waive the constitutionally protected rights of another individual, no matter their relation. Otherwise, what good are those rights?

    Re: Supreme Court Voids Search Over Consent Issue (none / 0) (#6)
    by Patrick on Wed Mar 22, 2006 at 09:57:35 AM EST
    I wonder what would happen if I had an engraved plaque made reading "No Police Searches Without a Warrant - The Owner of This Residence" and bolted it to the front door of my house.
    In this case the objecting party was physically present. A fact which they relied on heavily in rendering their opinion. The Matlock case referred to in the opinions seems clear that if you are not there, you lose the ability to control who is allowed entry by the co-occupant. A sign would not be sufficient.

    Enjoy these kind of victories while you can folks. There's a new rightwing world view coming when Scalito joins in. I just can't get over how the Roberts wing of the court can't wait to take individual rights away from the people and give as much power as they can to the Sate and Corporations.

    Re: Supreme Court Voids Search Over Consent Issue (none / 0) (#8)
    by Punchy on Wed Mar 22, 2006 at 10:06:13 AM EST
    I'm WAY confused here. Why is increasing police power--read: the government--a conservative concept? I thought conservatives were for privacy, small gov't, etc. So why did the most conservative judges vote for MORE gov't intrusion? Bigger gov't influence? What is this all about?

    Re: Supreme Court Voids Search Over Consent Issue (none / 0) (#9)
    by joejoejoe on Wed Mar 22, 2006 at 10:16:09 AM EST
    The latest legal news from The Onion: Constructionist Supreme Court To Revisit Women's Suffrage
    WASHINGTON, DC--The Supreme Court, demonstrating its new constructionist leaning since the appointment of Justice Samuel Alito, will re-examine arguments behind the 19th Amendment this week. "There was no constitutional precedent for amending the law of the land so dramatically," the Heritage Foundation's Trent England said Monday. "A case could be made on social grounds, but what the Court will determine is exactly what the framers of the Constitution wanted." While it's difficult to predict an outcome, observers believe Ruth Bader Ginsburg will use her three-fifths of a vote to oppose.
    It's like Roberts is ruling this way now. Is Stevens taking a dig at the dissenters when he writes, "assuming that both spouses are competent, neither one is a master possessing the power to override the other's constitutional right to deny entry to their castle." The "neither one is master" might be a reminder to the Patriarchy Four.

    Re: Supreme Court Voids Search Over Consent Issue (none / 0) (#10)
    by kdog on Wed Mar 22, 2006 at 10:17:33 AM EST
    A lesson to be learned here...tell all the people that share your dwelling where you stand on warrantless police searches. I've told my housemates the day they let a state agent in our home without a warrant is the day we are no longer housemates. State agents can obviously not be trusted to adhere to the constitutional limits on their power.

    msnbc.com's headline on this case is: "Top Court restricts cops in searches". Of course, the decision does no such thing. The decision merely upholds a citizen's right to not allow cops into his house without a warrant. A liberal media would have had the headline: "Top Court rules that 4th amendment still somewhat viable, at least in nonpresidentially approved entries and searches."

    Re: Supreme Court Voids Search Over Consent Issue (none / 0) (#12)
    by wg on Wed Mar 22, 2006 at 11:45:23 AM EST
    Enjoy these kind of victories while you can folks. There's a new rightwing world view coming when Scalito joins in. Yeah we know, you don't have to rub in.

    Re: Supreme Court Voids Search Over Consent Issue (none / 0) (#13)
    by roger on Wed Mar 22, 2006 at 12:39:04 PM EST
    I will be using language from this decision within a few weeks. The State is appealing my win on a similar case. I love some of the language about foolish arguments and red herrings......... Scary how Roberts is willing to knowingly lie to further his agenda though.

    Scary how Roberts is willing to knowingly lie to further his agenda though.
    Roger, Are you referring to the abused spouse reference in his opinion?

    This was a case with some pretty unusual facts that make it a rather surprising case to choose to take on the issue. Usually, people who live together are not active adversaries. Here, the wife did not just come to the door and find the police there. She led the police to the house saying that her husband had drugs there, he was asked by police if he consented, he said no, and they searched anyway. In this case, while wife was on the deed, but she had moved out for a lengthy period of time, a divorce was brewing, and may have simply been back to the house to retrieve property. While she was an owner, it isn't even clear that she was an occupant of the property, and this would have been a more obvious way to resolve the concerns expressed by the majority. She was hotly engaged in a custody battle with the husband and was the complaining witness the drug case that gave rise to the prosection. (Indeed, if her attorney had threatened to do what she did, it would have been an ethical violation). The case for the husband superficially, at least, looks like it would fit more naturally into the pigeon hole of an extension of the husband-wife privilege (i.e. not only may confidential communications between a husband and wife not be disclosed without permission of the other spouse, but husbands and wives also shouldn't give consent to warrantless searches likely to reveal contraband to authorities either). In short, the case seems like a poor one to evaluate the usual situation of roommates or spouses who are not actively at odds with each other. And, the rule the Court adopts, which in essence says that one occupant may consent, unless another occupant is right there complaining about the consent, seems like an odd rule to have constitutional stature. Yes, there are reasons to doubt that this was a valid search. Clearly, it would have been easy for the police, with a complaining witness and a search target who is unlikely to be aware of what is coming, to get a warrant. As noted above, this odd situation presented unusual expectations. But, a rule that hinges ones constitutional rights on whether you are home and come to the door or not, seems problematic.

    Posted by jessica March 22, 2006 10:39 AM just paul wrote:
    And what about the idea of spousal abuse cases where the wife is trying to get the cops to come in to see what's going on and the husband keeps refusing entry?"
    There's this brand new concept. It's called Probable Cause. You can look it up.

    Re: Supreme Court Voids Search Over Consent Issue (none / 0) (#17)
    by kdog on Wed Mar 22, 2006 at 01:36:45 PM EST
    Give 'em hell Roger. I sleep better knowing people like you are out there keeping power in check. Good luck brother.

    Eight votes and six opinions? Is it just my imagination, or do the justices write more separate opinions than they once did?

    Re: Supreme Court Voids Search Over Consent Issue (none / 0) (#19)
    by swingvote on Wed Mar 22, 2006 at 02:02:27 PM EST
    Is it just my imagination, or do the justices write more separate opinions than they once did? Not at all, Quaker. There are far more separate opinions then there just a generation of justices ago. Any thoughts as to why that might be?

    Given the makeup of the current court, and its tendency toward male-centricity, I wonder what the outcome would have been, had the husband said yes and the wife said no....

    Roberts biased, Court decision too narrow 1) My reading is that the court made the constitutional decision and that Roberts would have decided to support the State over the Constitution -- An obvious ideological decision. 2) It seems to me that the Constitution means that warrantless searches can not be done if the on-site responsible people object. Thus, if the State has not made a Good Faith attempt to get the agreement of all these people the search would require a warrant or reasonable suspicion of probable cause of a crime against one of the individuals. -- Thus the police should be required to ask the person in their custody or who is sleeping. 3) Though I might prefer the "plaque" to be honored, I would accept the decision that a person needs to be present to give or not give their permission. 3) Though I might prefer the "plaque" to be honored, I would accept the decision that a person needs to be present to give or not give their permission.

    Scary how Roberts is willing to knowingly lie to further his agenda though.
    Scary, but hardly surprising. He'll give 'em what they want 85 percent of the time. Same with scalito.

    Re: Supreme Court Voids Search Over Consent Issue (none / 0) (#23)
    by kdog on Wed Mar 22, 2006 at 03:57:31 PM EST
    Any thoughts as to why that might be?
    Perhaps more politics being played on the court, and less strict interpretation of the law.

    Re: Supreme Court Voids Search Over Consent Issue (none / 0) (#24)
    by swingvote on Wed Mar 22, 2006 at 04:25:36 PM EST
    Perhaps more politics being played on the court, and less strict interpretation of the law. I would say it's too much politics being played in the court, in terms of politically motivated cases, and too much politics being played by the court, in terms of justices getting involved in political issues. There also seems to be a serious personality issue on the court these days, which is only fed by all the obsessing over "conservative" and "liberal" justices.

    Re: Supreme Court Voids Search Over Consent Issue (none / 0) (#25)
    by Molly Bloom on Wed Mar 22, 2006 at 04:32:30 PM EST
    Enjoy these kind of victories while you can folks. There's a new rightwing world view coming when Scalito joins in
    Scalito at worst makes it 5-4, but same out come.

    Re: Supreme Court Voids Search Over Consent Issue (none / 0) (#27)
    by roy on Wed Mar 22, 2006 at 05:59:00 PM EST
    Come on guys, quit lambasting one of the smartest men in the public sphere for writing a legally correct, eloquent dissent.
    It's the Supreme Court. The dissent is, by definition, not legally correct.

    It's the Supreme Court. The dissent is, by definition, not legally correct.
    The argument, however, is legally accurate. There is nothing incorrect in what he advanced.

    The argument, however, is legally accurate. There is nothing incorrect in what he advanced.
    Tell me, which part do you think is more brilliant and "legally accurate" (ignoring for the moment the vacuousness of such a description): the comparison of the police attempting to conduct a warrantless search to a friend showing up for a birthday party, or the willfully false invocation of domestic abuse, which Justice Souter easily smacked down? Because unless you were reading the Bizarro World version of the decision, the domestic abuse red herring was neither legally correct nor accurate, since it, you know, ignored the law. And Chief Justice Roberts knows that perfectly well (See? I give him credit for being intelligent.).

    I would say it's too much politics being played in the court, in terms of politically motivated cases, and too much politics being played by the court, in terms of justices getting involved in political issues.
    Such as? For example? Do go on.
    There also seems to be a serious personality issue on the court these days, which is only fed by all the obsessing over "conservative" and "liberal" justices.
    What the hell are you talking about! Just what is your basis, your foundation, for any of this, sheep entrails! Just what evidence do you have that there is "a serious personality issue on the Court these days?" Which Justices does it involve? Is it limited to them or is it widespread? What is your source for this information? Is it verifiable? Have you confirmed it? Furthermore, what evidence do you have that said "serious personality issue" is only fed by "all the obsessing over 'conservative' and 'liberal' Justices?" Do you have anything solid, JP, or are you just pullin' your usual caper and trying to pretend you know what the hell you're talking about?

    Re: Supreme Court Voids Search Over Consent Issue (none / 0) (#31)
    by joejoejoe on Wed Mar 22, 2006 at 07:28:35 PM EST
    Consent by one party is not sufficient for sexual intercourse. Why should it be so in search of a home? Or does Roberts think rape is impossible if one party agrees to the act? Of course that is an outrageous view but it's logically consistent with Roberts' dissent. Consent is not some least-common denominator obstacle to law enforcement that can be forfeited based on selecting whichever of two claims is more favorable to government in a given case. Justice Souter rightly keeps the power with the individual denying consent and does not invent a "tie goes to the government" clause for the 4th Amendment as Umpire Roberts suggests.

    Re: Supreme Court Voids Search Over Consent Issue (none / 0) (#32)
    by Sailor on Wed Mar 22, 2006 at 07:57:40 PM EST
    I love when people that have zero clue armchair quarterback SCOTUS decisions. It isn't the CJ playing politics, it's you morons.
    Well, personal insults like that must be OK since ppj has shown over and over that they are allowed here.
    quit lambasting one of the smartest men in the public sphere
    What are you, his mom!? He's a political hack who couldn't get appointed under bush one, so bush number 2 (yes, pun intended;-) does it, just like all the other incompetent hacks he's appointed.

    ...just like all the other incompetent hacks he's appointed.
    You're absolutely right. Roberts is incompetent. Get a clue. And I almost think its humorous you condemn my "personal attack" just before you call him a "hack." Nice touch. as for mds: While I agree that the domestic abuse argument is weak, I wouldn't go as far as to call it a "red herring." As for the birthday party example you grossly mischaracterize as a direct comparison (although I suspect you were, yourself, being disingenuous): it's an apt example of the social expectation doctrine of privacy. But I think you are avoiding the real point of his argument: that is, people living together have a reduced expectation of privacy. When physical space is shared (be it a shared duffle bag as in Cupp, a locker as in Jacobsen or a shared dwelling as in Karo) there is a reduced expectation of privacy. Period. That fact is indisputable. I'm not saying that I'm shocked and appalled by the decision the Court reached. On the contrary, I feel as though finds legitimacy in both the Constitution and precedent. However, on balance, I feel the Chief Justice's argument makes more sense, particularly as translated as a directive to law enforcement.

    [Insults to other commenters deleted.] (i) CJ Roberts is completely correct in saying cohabitants of a house have a diminished expectation of privacy. It's an understood and accepted tenet of common law property rights. Want proof? It that wasn't true, the police would have to secure the consent of each and every inhabitant prior to an unwarranted search. They don't and the Court's opinion affirms that. (ii) Roberts isn't "siding with the state" as some of my fellow Chicken Little-esque commentators have suggested. He doesn't support search without probable cause. He doesn't permit search without consent. He is merely asserting that when any of the cohabitants present can consent to a search of the common area. Roberts advises that, should you happen to live with someone and care to maintain your complete privacy, keep your contraband in a "private room or locked suitcase under the bed." Good advice anyway. (iii) The Court's opinion isn't flawed by any means. It surely upholds the spirit and history of the 4th Amendment protecting privacy of a very solemn zone: the home. It is, as Roberts alleges, overwrought in making clinical distinctions between a roommate sleeping in the other room (with apparently reduced rights to object) and a cohabitant who happens to be standing at the door. Come on guys, quit lambasting one of the smartest men in the public sphere for writing a legally correct, eloquent dissent. It's not politics, it's not ideology, it's adherence to common law and the Constitution itself.

    Re: Supreme Court Voids Search Over Consent Issue (none / 0) (#34)
    by roger on Thu Mar 23, 2006 at 03:47:00 AM EST
    The majority considered the abused spouse argument to be a red herring. That is because we already have an "exigent circumstances" exception to the warrant requirement. Souter actually (and correctly), mocks the argument made by Roberts. Stevens decision is eveb more mocking in tone. As to number of decisions, originally, all justices wrote their own decisions. Joining in with others is a modern development. Look at Marbury v Madison.

    As to number of decisions, originally, all justices wrote their own decisions. Joining in with others is a modern development. Look at Marbury v Madison. I can see them now, Roger. The Pocket Parts! Damn! I forgot to check the Pocket Parts!

    Re: Supreme Court Voids Search Over Consent Issue (none / 0) (#36)
    by Jlvngstn on Thu Mar 23, 2006 at 05:51:18 AM EST
    Chase. Depends on what you mean regarding reduced privacy. My wife and I each have an private room or "study" that is exclusive to each party. Having own space independent of one another provides us with a get away space in our own home where we can take a timeout from each other or the children. We have a reasonable expectation of privacy in each of our family free zones to allow us to have quiet time. If there was a knock at our door I could easily allow the police to inspect common areas but they would not be allowed in my wife's study. Of course that is just us but a reduced expectation of privacy does not intimate blind dual consent.

    Re: Supreme Court Voids Search Over Consent Issue (none / 0) (#37)
    by roger on Thu Mar 23, 2006 at 06:08:08 AM EST
    JL, According to the decision, the police just have to follow what would be a "common, usual" living arrangement fromn what is apparent to them. If your wife lets them in your area, it would be aa good search, unless you had locked the door. I am interested in how this ruling will apply to college dorm rooms that have a common area, as well as private rooms. We get a lot of consent seareches here. I would think that dorm arrangements are common enough to prevent a search of a private area within.

    JL: That's an interesting scenario. I would agree that your "private, family-free room" is entitled to greater privacy expectation than, say, the kitchen. But Roger makes a point: if the room is truly private, you should lock to the door, not only to secure its privacy but to signal that privacy *should* there be a consent search. I have the sense that a home shared by a married couple has fewer individual private zones than a home shared by two or more roommates. I currently share a two bedroom apartment with a longtime friend and former teammate. I tend to think that anything in the living room, kitchen or dining room is less private than things I keep in my own room (much less in my closet). While I would have little argument if he allowed the police to enter and take a look around the apartment, it would be quite a different story if he led them past my closed bedroom door. Roger: As someone who lived in a dorm room for 3 years, the level of privacy is minimal, at best. All three years I lived with another person in the same room. Intuitively I knew that anything sitting out would be afforded less privacy (from police or my roommate visiting friends) than things I stored in my own closet, under the bed or in a closed desk drawer.

    Re: Supreme Court Voids Search Over Consent Issue (none / 0) (#39)
    by scarshapedstar on Thu Mar 23, 2006 at 07:27:54 AM EST
    Roberts, Scalia and Thomas dissented.
    Somehow I can't stop from envisioning the Three Stooges.

    Re: Supreme Court Voids Search Over Consent Issue (none / 0) (#40)
    by Jlvngstn on Thu Mar 23, 2006 at 07:57:03 AM EST
    thanks Roger, appreciate the legal clarification. Also, thanks Chase for your response. Legally I did not think either of our rooms were off limits although the lock makes sense. I just thought the "reduced privacy" argument from Chase was accurate to a point, I now understand that the point is whether or not the door is locked.

    JL: To me, both arguments make sense and that's why this case is so fascinating. And I don't know if the lock is the difference, per se (although it no doubt signals your expectation of privacy to whomever tries to gain entry). I think that a shut door is sufficient. Take, for instance, the roommate example. One roommate consents to a search of the common areas and his own private room in the absence of the other roommate. If the missing roommate's door is open, and there is a pound of pot in the middle of the floor, the "plain view" doctrine takes over and he's toast. If, however, the door is shut, the consenting roommate (or the officer) should not be able to open the door, even for a plain view search as he lacks the authority to consent to that private area. In my view, that example represents a reasonable expectation of privacy worthy of 4th Amendment protection. So I think the lesson here is: if you are inclined to illegal behavior, keep the evidence in your room, out of plain view. You're just asking for it if you leave your bongs, mirrors and straws on the living room table.

    Posted by scarshapedstar March 23, 2006 08:27 AM
    Roberts, Scalia and Thomas dissented. Somehow I can't stop from envisioning the Three Stooges.
    Yeah, roberts does have a shemp-like quality now that you mention it. Scumlito is stoogie generis.