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Guests at private house covered by 4th Amendment, justices rule 5-4 high court decision shields most visitors from arbitrary search, seizures


WASHINGTON -- The Supreme Court gave guests in someone else's home a broad right of privacy yesterday, ruling that almost all invited visitors are secure from government intrusion -- but not if they are there only briefly just to engage in a crime.

Before the new ruling, the court had assured privacy inside a home only to the owner or renter or to guests who remained overnight.

Now, however, "most, if not all, social guests" will be protected by the privacy guarantees of the Fourth Amendment, according to the view of Justice Anthony M. Kennedy, whose vote was the decisive one to break a 4-4 split among the other justices on the constitutional issue.

Justice Ruth Bader Ginsburg, who wrote a dissenting opinion but whose views helped shape the constitutional result, said it was "noteworthy that five members of the court would place under the Fourth Amendment's shield 'almost all social guests.' "

The constitutional declarations had to be pieced together from five separate opinions, which will make it difficult for lower-court judges, police and lawyers to find clear constitutional guidance.

'Overnight guest' protected

If readers of the decision focus only on Chief Justice William H. Rehnquist's opinion, which spoke formally for the court majority, the ruling might appear to deny privacy protection to short-term guests in a home.

Rehnquist wrote: "An overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not."

That language, however, is qualified by a remark by Kennedy, holding the crucial tie-breaking vote, who said: "I join the court's opinion, for its reasoning is consistent with my view that almost all social guests have protection against unreasonable searches, in their host's home."

But there are two individuals who will not share in the newly declared privacy right: the two Chicagoans who took the case to the Supreme Court after being convicted in Minnesota of cocaine trafficking.

Not guests

By a vote of 6-3, the justices concluded that the men's rights RTC were not violated when a police officer observed them through a window during a visit to a woman's apartment in a suburb of Minneapolis-St. Paul. While there, the two men and a woman put cocaine into plastic bags.

Kennedy said the two men had "established no meaningful tie or connection" to the woman whose apartment they visited, to the apartment or to her privacy right in the home. The two men, Kennedy said, "established nothing more than a fleeting and insubstantial connection" with the apartment.

The constitutional part of the ruling was reached this way: Ginsburg, joined by Justices David H. Souter and John Paul Stevens, said that short-term invited guests have a right of privacy -- even if their visit existed for criminal purposes; Justice Stephen G. Breyer, in a separate opinion, said he agreed with that conclusion, making four; Kennedy's separate views added the fifth vote for privacy, at least for "almost all social guests."

Ginsburg said the court should leave to some future case the issue of the privacy of other kinds of visitors, such as "the milkman or pizza deliverer."

In her opinion protesting the constitutional views in the Rehnquist opinion, Ginsburg expressed concern about the consequences if police read only that part of the ruling. That part, she said, "will tempt police to pry into private dwellings without warrant, to find evidence incriminating guests who do not rest there through the night."

Here is how the two Chicagoans, Wayne Thomas Carter and Melvin Johns, wound up losing the case: Rehnquist's ruling upholding their convictions had the support, for varying reasons, of five justices: Breyer, Kennedy, Sandra Day O'Connor, Antonin Scalia and Clarence Thomas. Only Ginsburg, Souter and Stevens dissented on that point.

The woman whose apartment was involved, Kimberly Thompson of Eagan, Minn., has been convicted of the same cocaine crimes as Carter and Johns. She did not have a role in yesterday's appeal, and her legal fate is unknown.

Pub Date: 12/02/98

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