Those who are accustomed to being overruled by their spouses can take some measure of comfort from the Supreme Court's most recent decision in Georgia v. Randolph. Here are the facts:
Respondent's estranged wife gave police permission to search the marital residence for items of drug use after respondent, who was also present, had unequivocally refused to give consent. Respondent was indicted for possession of cocaine, and the trial court denied his motion to suppress the evidence as products of a warrantless search unauthorized by consent.
I am amused and amazed that this has not come before the Court before. The police can search a house without a warrant if the owner gives permission. But what if there are two owners, and one gives consent while the other explicitly refuses consent? The Court concluded, by a five to three majority (Justice Alito not participating), that the denial is controlling.
Held: In the circumstances here at issue, a physically present co-occupant's stated refusal to permit entry renders warrantless entry and search unreasonable and invalid as to him. Pp. 4-19.
I suppose that means first, that the police may indeed search the whole house with the permission of one owner, but that nothing that is found can be used in court against the person who refused consent to search; and two, that under this precedent the second refusal must be explicit. Had Mr. Randolph not been present, his nose candy would have been fair game.
I am more than a little dubious about the Court's central reasoning. Justice Souter, writing for the Court:
[I]t is fair to say that a caller standing at the door of shared premises would have no confidence that one occupant's invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, "stay out." Without some very good reason, no sensible person would go inside under those conditions. Fear for the safety of the occupant issuing the invitation, or of someone else inside, would be thought to justify entry, but the justification then would be the personal risk, the threats to life or limb, not the disputed invitation.3 The visitor's reticence without some such good reason would show not timidity but a realization that when people living together disagree over the use of their common quarters, a resolution must come through voluntary accommodation, not by appeals to authority.
Now its true that if a friend invited me into her home but her husband, standing right there, told me to get off his property, I wouldn't go in. Or at least I wouldn't unless concern for her safety or someone else's compelled me to do so, an exception the Court notes. But this seems to confuse social convention with legal proscription. Surely if I did enter with her permission, no one would think that I was legally trespassing. So I find the Court's reasoning here unpersuasive.
But just because I wouldn't be trespassing doesn't mean the police wouldn't be trespassing. The rules governing police searches are certainly more extensive than those governing private entry. The truth of the matter is that this is a judgment call. Consider the words of the Fourth Amendment, brought to you by EPublius (Professors Blanchard and Schaff, presiding):
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The amendment doesn't tell us anything about when a warrant is required. The Court answers such questions by referring to the "expectation of privacy." If the police see a twenty foot tall marijuana plant growing in someone's front yard, they can seize the plant and use it as evidence. No one can expect that what is visible to any passer-by is private. But if the cops sneak up and peak through the curtains, that is an invasion of privacy. This has been a spectacularly successful doctrine.
But of course our expectations of privacy are as much molded by the courts as discovered by the courts. I expect my sealed letter to be private, as well as my phone conversations. But an e-mail posted from my office? No one knows, yet. The only constitution that matters is the one that lives and breathes in the people and the various branches of their government. The Court has here put a bit more flesh on the bones of the Fourth Amendment. Conservatives may not like it, but that is in fact one of the Court's jobs.
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