Police searching home without warrant, with permission.

[Vex]

http://www.msnbc.msn.com/id/11959183/

WASHINGTON - The Supreme Court ruled Wednesday that police without a warrant cannot search a home when one resident says to come in but another tells them to go away, and the court’s new leader complained that the ruling could hamper investigations of domestic abuse.

Justices, in a 5-3 decision, said that police did not have the authority to enter and search the home of a small town Georgia lawyer even though the man’s wife invited them in.

The officers, who did not have a search warrant, found evidence of illegal drugs.

The Supreme Court has never ruled on whether the Constitution’s ban on unreasonable searches covers a scenario when one home occupant wants to allow a search and another occupant does not.

The ruling by Justice David Souter stopped short of fully answering that question — saying only that in the Georgia case it was clear that Scott Fitz Randolph was at the door and objected to the officers entry.

Roberts dissents
In his first written dissent, Chief Justice John Roberts said that “the end result is a complete lack of practical guidance for the police in the field, let alone for the lower courts.”

The case fractured a court that has shown surprising unanimity in the five months since Roberts became chief justice. Justices swapped barbs in their writings, with Souter calling Roberts’ view a “red herring.”
Justices Antonin Scalia and Clarence Thomas filed separate dissents, and Justice John Paul Stevens and Stephen Breyer wrote their own opinions to explain their votes in favor of the man whose home was searched.

Stevens said that “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.”

Georgia had asked the court to allow it to use evidence obtained in the 2001 search in Americus, Ga., that followed a police domestic dispute call.

Randolph and his wife, Janet, were having marital troubles. She led officers to evidence later used to charge her husband with cocaine possession. That charge was on hold while the courts considered whether the search was constitutional.

State court upheld
Georgia’s Supreme Court ruled for Scott Randolph, and the high court agreed.

“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.”

Justice Anthony Kennedy was the swing voter, joining the court’s four more liberal members.

Roberts’ dissent was unusually long — almost as long as the main opinion. He predicted “severe” consequences for women who invite police in only to be overruled by their husbands.

Justice Samuel Alito did not participate in the case, because he was not on the court when it was argued.

The case is Georgia v. Randolph, 04-1067.

Thoughts?

 

[Lupinus]

if it doesn't remove the ability to enter when they have reason to believe I say hell yeah to it.

We aren't talking police can't come in if they got a 911 call came in that a woman was being beaten half to death by her husband and she is heard screaming in the backround that they can't come in.

This is great for those of us living with people who don't think to much of such things.

No I have nothing to hide, that doesn't mean I should have to have my privacy invaded cause the other person living here doesn't mind or know better.

 

[lysander]

I just skimmed the slip opinion for the case and it appears that the Roberts/Scalia dissent wanted to hang their hat on the idea that disallowing a search without consent of all the parties in a home would damage law enforcement's ability to handle domestic dispute incidents.

The majority feels that exigent circumstances will take care of that sort of trouble...

I linked the opinion in another thread..but here it is again:

Georgia v. Randolph

 

[Chipperman]

If the Police are suspicious about domestic abuse, they can ask both parties to exit the house, and conduct interviews on the street. Why do they have to go into the house?

If they have enough suspicion of domestic abuse to make a charge, then haul the guy in. Later, they can ask the wife for permission to search the premises if needed. The husband won't be there to object, because he'll be in the holding cell.

Am I missing something here?

 

[ArmedBear]

The nature of the case makes this a bit more complicated than it needed to be, I think.

I wish it had been a roommate case, because that is an issue more important to our liberty now that roommate living arrangements are commonplace.

A couple of screwed-up spouses should be protected by the Constitution, and the cops could have gotten a warrant to search their house since there was no active violence taking place. But they don't make the best 4th Amendment poster children, either.

BTW, I think that this illustrates something I believe pretty strongly: the "drug war" poses a far greater threat to our personal liberty and privacy than any terror-related measures enacted thus far.

 

[Vex]

If they have enough suspicion of domestic abuse to make a charge, then haul the guy in. Later, they can ask the wife for permission to search the premises if needed. The husband won't be there to object, because he'll be in the holding cell.

I don't think this will count, either. Just because someone is in jail on suspicion of criminal activity doesn't mean all their property is automatically searchable... the husband, though in a holding cell, can still object to a search even though he's not there, and if the cops search anyway, it's a prime candidate for dismissal in an evidentiary hearing.. The cops would still need a warrant. The warrant could have been obtained while the husband was in jail, however....

 

[MrTuffPaws]

^^^^
Arresting the person on a charge would be more than enough probable cause to search the house.

 

[Vex]

^^^^
Arresting the person on a charge would be more than enough probable cause to search the house.

You'd think, wouldn't ya? But this is not the way it works. Unless the police can properly and accurately articulate why they should be able to search a house, then there won't be a warrant. This is the true meaning of a fishing expedition.

Cop: "Judge, we arrested Joe Smith, and we want a warrant to look for guns, drugs, and bombs in Joe Smith's house."
Judge: "What was Joe Smith arrested for?"
Cop: "Drunk driving."
Judge: "Get the heck out of here until you have some real proof."

If I'm arrested for something real bad, like terrorism, and I was arrested in my car at Walmart's parking lot, the cops can't search my house without a warrant. Being arrested doesn't mean all your rights are null and void. Just your immediate ones.

 

[Molon Labe]

Someone pinch me.

Wow. I cannot believe I'm agreeing with the court's liberals on this one.

 

[TexasRifleman]

Randolph and his wife, Janet, were having marital troubles. She led officers to evidence later used to charge her husband with cocaine possession. That charge was on hold while the courts considered whether the search was constitutional.

So the counterpoint to this would be, in a nasty divorce/domestic situation, what if the scorned woman planted drugs in the house then invited police in to search without the husbands consent?

I'm in agreement with the ruling here.

Being married makes you a "single entity" in many legal proceedings, but it should not make you a single entity where the Bill of Rights is concerned.

I agree with Souter. (Ewwww, that was disgusting to say out loud)

 

[Live Free Or Die]

IIRC, the previous couple of "police power" cases that made it to the supreme court turned out a similar way -- not the decision but the actions of the judges. The conservative judges tended to support more police power, and the liberal judges tended to support limiting police powers. There were always one or two swing voters who in effect determined the outcome.

Those of us who feel wary of the liberal-activist judges can't exactly find comfort in the conservative judges who seem to want to give government more and more power. Neither group can be counted on to steadfastly protect individual liberties.

 

[Vex]

IIRC, the previous couple of "police power" cases that made it to the supreme court turned out a similar way -- not the decision but the actions of the judges. The conservative judges tended to support more police power, and the liberal judges tended to support limiting police powers. There were always one or two swing voters who in effect determined the outcome.

Those of us who feel wary of the liberal-activist judges can't exactly find comfort in the conservative judges who seem to want to give government more and more power. Neither group can be counted on to steadfastly protect individual liberties.

Well, I think it boils down to something a little more sinister.

The left wants to take authority away from the State (the police included) and give it to the federal government.

The right wants to retain the authority in the State (the police included) and leave the federal government to handle foreign affairs.

It really makes quite a bit of sense.

 

[ArmedBear]

Live Free, that's the truth.

Still, if we were to eliminate the laws we have and the "war" we've ostensibly declared, against voluntary drug use by individuals, there would be very few of these police power cases to decide in the first place.

Most of these cases about the fine points of police power involve laws that govern victimless crimes. Cocaine possession is a victimless crime, in that no one is forced to do anything. Domestic violence is NOT a victimless crime; note that domestic violence was not the charge in question in this case. Without laws against possession of cocaine, this would have been an open-and-shut case in the local courts.

So, this means that the technical fine points police powers are limited, but that limitation exists in a context where the police powers of the state are already beyond excessive. By this, I invoke the real, common sense meaning of "police power", and I mean to remind us that it is a false comfort when we have minute procedural Constitutional protections, but are subject to imprisonment for acts that should not be crimes.

Funny thing is, I don't do any of these drugs, and don't want to. But my freedom, also, suffers.

 

[Langenator]

Of course, if the cops had been smart about the whole thing, this case never would have existed.

The wife told them her husband had cocaine, and she could tell them where it was. How hard would it have been to get a warrant, while the cops had kept both of them standing on the front porch?

"Judge, the wife says there's cocaine belonging to the husband in a shoebox under the bed in the guest room."
"Here's your warrant."

DISCLAIMER: I do believe that the .gov should but the hell out of the individual's right to voluntarily destroy his brain or any other organs with the chemical(s) of his or her choice.

 

[Flyboy]

The right wants to retain the authority in the State (the police included) and leave the federal government to handle foreign affairs.

Ah, yes. That would explain the (Federal) anti-drug laws, the (Federal) Defense of Marriage Act, the numerous (Federal) gun restrictions pushed through by the right (usually by Administrative fiat, when they control the White House), the (Federal) standards for (State) driver's licenses, the (Federal) drug benefit for old folks, the (Federal) meddling in education (No Child Left Unharmed, etc.), the . . . .

Face it: they're all statists, looking to concentrate power in Washington. The more I think and read about it, the more I think electing Senators directly--rather than having them chosen by the State--is a bad idea.

 

[Live Free Or Die]

(deleted pending further research)

 

[neoncowboy]

Stevens said that “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.”

+1!

 

[Aguila Blanca]

I join in failing to understand Roberts' dissent.

What need is there to search the premises if the police are there about domestic abuse? They show up at the door, Party A says "He/she hit me," Party B says either "No I didn't" or "Only because he/she hit me first," and the cops haul both parties away any how because in most places it's my understanding that the law requires them to do so.

The don't need to search. They need to enter only to slap on the cuffs.

 

[WYO]

I’m a little surprised at the decision but don’t see it as a big deal one way or the other.

1. My surprise is the result of the general concept that people with equal dominion over property generally can do what they want with it, even over the objections of the other party. For example, there’s nothing to stop someone with equal dominion over a candy bar from eating it, throwing it away, smashing it or giving it away even over the stated objection of the other person. This concept has generally been the result of the expansion of equal rights for both sexes in the acquisition, use and disposition of property over the past several decades.

However, I can see the logic of saying that express refusal of consent by one party renders consent to search given by the other person with co-equal rights “unreasonable” under the 4th amendment. So, it really doesn’t bother me.

2. On my first reading, I don't think the decision will change a lot.
a. It only seems to apply when both parties are present and someone expressly objects. If one party isn’t there to assert rights, then the other party gets to consent and there’s no one else there to stop the police unless, perhaps, there is some way of knowing the person expressly refuses consent.
b. It doesn’t appear to stop the person with equal dominion from getting the stuff and giving it to the police of his/her own volition. (There may or may not be an issue if the police direct the person to go get it.)
c. If there is probable cause to believe that there is evidence, and a fear that the property could be destroyed while a warrant is being obtained, upon prevailing authority the police can kick both people out of the residence for a reasonable time while they obtain a search warrant. It’s an inconvenience that may dissuade some searches, but there’s still a way in if the police want to do the legwork. Of course, this requires a determination that the person making the report is telling the truth, and possibly giving a written or even sworn statement or affidavit. The potential payback has to be worth the effort to the system, including police downtime, and D.A.’s and judges aren’t going to want to be awakened at 2 a.m. for a quarter ounce pot case without extenuating circumstances.
d. This doesn’t appear to override other exceptions to the warrant requirement such as exigent circumstances, the automobile exception, or plain view. Under the plain language of the opinion it does not appear to require the police to leave the premises if they are investigating something, although it does limit an independent right to search. (The court noted a distinction between consent to enter without being considered a trespasser and consent to search.) One post suggests that a search incident to arrest will result in a full search of a residence. This is an overbroad interpretation of that doctrine.
e. There also are practical reasons why the decision may not cause the police much, if any, grief. A lot of times people tolerate others’ indiscretions while they’re in love, then decide to exploit those same indiscretions as “leverage” when they no longer like them. For example, they may live and/or work with a doper for years, then say the other person is a doper when it becomes convenient for things like child custody, “business advantage,” getting exclusive control over the residence, or just plain hassling “Ex” with the long arm of the loi. A LOT of people suggest that you will find drugs if you search “Ex” or his place. Gee, how do they know that and why didn’t they care until just this exact minute? Believe it or not, the police don’t like to be used as pawns or tools in acrimonious private disputes not involving personal harm or imminent threat of personal harm. Having a valid, legal reason to not be the tool isn’t all bad.

3. This appears to me to fall within the range of cases where the police can easily say “If you just tell us what the law is, we have no problem applying it correctly.”

YMMV

 

[Roadkill Coyote]

This would appear to be a much more limited change than the headlines are suggesting.

"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, it would be silly to suggest that the police would commit a tort by entering, say, to give a complaining tenant the opportunity to collect belongings and get out safely, or to determine whether violence (or threat of violence) has just occurred or is about to (or soon will) occur, however much a spouse or other co-tenant objected."

"we have to admit that we are drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant's permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.

This is the line we draw, and we think the formalism is justified. So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant's permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant's contrary indication when he expresses it. For the very reason that Rodriguez held it would be unjustifiably impractical to require the police to take affirmative steps to confirm the actual authority of a consenting individual whose authority was apparent, we think it would needlessly limit the capacity of the police to respond to ostensibly legitimate opportunities in the field if we were to hold that reasonableness required the police to take affirmative steps to find a potentially objecting co-tenant before acting on the permission they had already received."

 

[Strings]

>So the counterpoint to this would be, in a nasty divorce/domestic situation, what if the scorned woman planted drugs in the house then invited police in to search without the husbands consent?<

This was actually my first thought too. And I have to agree with others here: the police could simply detain both parties from the residence, while they obtain a search warrant...

 

[O.F.Fascist]

I agree with the ruling, and that the war on drugs is bad for our liberty.

 

[Robert Hairless]

I like the Court's decision on this one. The master or mistress of a castle should be able to deny entry because the right to deny is more important than the right to invite. Home is a person's ultimate shelter and retreat. It's the place where people should be able to have privacy, to keep their most personal items away from prying eyes, and to be safe from the outside world.

Of course there are occasions when it's essential to override the wishes of either or both parties, or any party who owns or lives in the home: when there is good reason to believe that murder is in process within, for example, and immediate intervention can save a life. But there should be relatively few such exemptions, otherwise it will be too easy to violate the rights of people to be safe in their own homes. A vindictive spouse, an angry child, a malicious roommate--any resident of the home could then invite law enforcement in to go fishing for evidence.

It's always inconvenient for law enforcement officers when other people can deny them the officers the ability to do what they want when they want for whatever reason they want, but that's as it should be, I think.

 

[Optical Serenity]

Very odd situation...Lets just say this is not the norm. I have never in my law enforcement career seen or even heard of a case where one resident says "yes" to a search, and someone else says "no" and they enter anyway!?

I don't know any officers or departments who would have entered. Court ruling or not.

One bizarre case.

 

[MechAg94]

I agree with Langenator in that I think IN THIS SPECIFIC CASE the cops should have handled it differently and avoided the problem. If the wife had just said there was cocaine in there, they would have had cause for a warrant.

I do agree that police should not be allowed to shop for permission to search. That is the main reason I agree with the outcome in case because that is what they were doing. I am not sure that I would apply it universally in all cases, but I think that is likely a good general rule.


I haven't read the opinions. The article I saw said Roberts made the domestic abuse argument. I am not sure if Scalia and Thomas made the same argument or not. The article said they issued separate dissenting opinions so I am thinking they may have had their own reasons.