Ruling reveals court's rifts


WASHINGTON -- A Supreme Court decision yesterday in an uncelebrated criminal case did more than resolve a dispute over whether police are permitted to search a home without a warrant when one occupant gives consent but another objects.

More than any other case, the 5-3 decision that said police do not have that power revealed the strains behind the surface placidity and collegiality of the court in its early months under Chief Justice John G. Roberts.

It was not only that this case, out of 32 decided since the term began in October, provoked Roberts to write his first dissenting opinion. He had cast two earlier dissenting votes and would eventually have written a dissent.

And, despite the court's unusually high proportion of unanimous opinions - 22 this term compared with 27 in all of the last term - few expected that rate to continue as the court disposed of its easiest cases.

What was striking about the decision in Georgia v. Randolph was the personal and acerbic tones with which the justices expressed their disagreement over whether the Fourth Amendment's ban on unreasonable searches was violated when police in Americus, Ga., arriving at a house to investigate a domestic dispute, accepted the wife's invitation to look for evidence of her husband's cocaine use.

The dueling opinions were relatively straightforward. As has often been the case in the court's recent past, although not so far this term, the justices revealed their feelings in the footnotes.

Writing for the majority, Justice David H. Souter said the search was unreasonable given the vocal objection of the husband, Scott Randolph.

The court had long permitted one party to give consent to a search of shared premises under what is known as the "co-occupant consent rule," Souter wrote. But he said that rule should be limited to cases in which the person who later objected was absent, the context in which it was first applied.

The presence of the objecting person changed everything, Souter said, noting that it defied "widely shared social expectations" for someone to come to the door and to cross the threshold at one occupant's invitation if another objected.

"Without some very good reason, no sensible person would go inside under those conditions," Souter said.

"We have, after all, lived our whole national history with an understanding of the ancient adage that a man's home is his castle. Disputed permission is thus no match for this central value of the Fourth Amendment."

Justices John Paul Stevens, Anthony M. Kennedy and Ruth Bader Ginsburg joined the majority opinion, as did Justice Stephen G. Breyer, who explained himself in a concurring opinion notable for its ambivalent tone. Justice Samuel A. Alito did not vote because he was not a member of the court when the case was argued. Justices Antonin Scalia and Clarence Thomas also dissented.

In his opinion, the chief justice took aim at the majority's description of social custom and its reliance on that description to reshape "a great deal of established Fourth Amendment law."

Every lower federal court that has considered the issue, and most state courts, have concluded that one party's consent is sufficient.

The Georgia Supreme Court, in its 2004 decision that the justices affirmed, was in the minority, ruling in this case that the evidence of Randolph's cocaine use was inadmissible.

"The fact is that a wide variety of differing social situations can readily be imagined, giving rise to quite different social expectations," Roberts said. For example, he said, "a guest who came to celebrate an occupant's birthday, or one who had traveled some distance for a particular reason, might not readily turn away simply because of a roommate's objection."

Noting that "the possible scenarios are limitless," Roberts said, "Such shifting expectations are not a promising foundation on which to ground a constitutional rule, particularly because the majority has no support for its basic assumption - that an invited guest encountering two disagreeing co-occupants would flee - beyond a hunch about how people would typically act in an atypical situation."

The majority missed the point, the chief justice said, adding that someone choosing to share space has also chosen to share privacy.

"Our common social expectations may well be that the other person will not, in turn, share what we have shared with them with another - including the police," he said, "but that is the risk we take in sharing."

In the footnotes, the usually mind-mannered Souter said that "in the dissent's view, the centuries of special protection for the privacy of the home are over." By invoking a "false equation" between inviting the police into the home and reporting a secret, Souter said, the chief justice "suggests a deliberate intent to devalue the importance of the privacy of a dwelling place."

Roberts responded in another footnote that the majority had mischaracterized his position on privacy and "seems a bit overwrought."

In a concluding paragraph of his dissent, he said, "The majority reminds us, in high tones, that a man's home is his castle, but even under the majority's rule, it is not his castle if he happens to be absent, asleep in the keep or otherwise engaged when the constable arrives at the gate. Then it is his co-owner's castle."

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