A RARE VICTORY FOR PRIVACY AND COMMON SENSE

Creators Syndicate ^ | MARCH 26, 2006 | Steve Chapman

[JTN]

The other day, the Supreme Court did something surprising. It said that if a man stands at the threshold of his own house and tells the police they may not enter without a warrant, then -- get a load of this, willya? -- they may not enter without a warrant.

That may not sound very remarkable. After all, most of us are familiar with the axiom that a man's home is his castle, and the Constitution does have that passage assuring the right of all Americans "to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures."

But in recent years, the court has had a simple rule in disputes between citizens and police on the legality of a search: Go with the cops. It's out of character for the justices to rule that a person's privacy may impede law enforcement, as they did here.

The case arose after a Georgia woman, Janet Randolph, called police to say her husband had absconded with their son. When officers arrived, she told them he was also a cocaine user. About that time, Scott Randolph showed up, said he had taken the boy for fear she would spirit him out of the country, and denied using drugs.

One of the police, who had no search warrant, asked the husband if he could search the house. He said no. So the officer asked the wife, who obliged.

The cop went in and found a straw coated with a powdery substance. When Scott was indicted for cocaine possession, he argued that the search was invalid because he had refused consent.

The trial court rejected the claim because, it said, his wife had authority to admit police to their joint residence. But the Supreme Court took a different view: While she could have let them in when her husband was absent, he was present, and therefore had the right to bar their entry. Only if there was an emergency, such as the threat of domestic violence, could the cops enter over his objection.

That conclusion rests on common sense. "It is fair to say," wrote Justice David Souter, "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."

Chief Justice John Roberts disagreed, insisting that when two people live together, prevailing conventions allow either to have visitors over the objections of the other. Apparently he sees no limit to this principle. So when representatives of The Committee to Impeach John Roberts arrive at his house and his wife invites them in, he will consider himself powerless to keep them out.

But Roberts had reason to think his fellow justices would go along with him. They have provided the government lots of ways to get around that pesky Fourth Amendment. One is to say, as the chief justice did here, that in many situations, the government may conduct a search because a citizen has no "reasonable expectation of privacy."

You may think your bank or video store records are confidential, but the court has said that once you share information with a third party, it's no longer private. So a prosecutor embarked on a grand jury investigation can inspect them, without bothering to get a search warrant from a judge based on evidence that you've committed a crime.

The Constitution generally bars searches without a warrant, which requires a showing of "probable cause," but the rule doesn't apply if the target of the search consents to it. So the court has ingeniously stretched the meaning of "consent."

The average person, confronted with cops asking if they can search her house or car, would not realize she has a right to decline. Most people "consent" because they figure they have no choice. And the court has said that the police are under no obligation to let them know otherwise.

Still, there are limits to how far the court can go in placing the convenience of law enforcement over the language of the Constitution. It can pretend people have no expectation of privacy even when they do, and it can pretend that people routinely agree to things they have every reason to reject. But when a man stands in his doorway telling the police they may not come in, the court has to acknowledge that a citizen's right to say "no" still means something.

[JTN]

Ping

[CrawDaddyCA]

The average person, confronted with cops asking if they can search her house or car, would not realize she has a right to decline.

Always deny consent to a search, and keep your mouth shut. Make them do their job.

[Redbob]

Disappointed to hear that John Roberts failed this very simple test of conservative values.

[stacytec]

Its sad to say, but a lot of so-called conservatives fail to see the need for privacy protection. Should it surprise us that the chief justice doesn't observe it either?

[street_lawyer]

The average person, confronted with cops asking if they can search her house or car, would not realize she has a right to decline.

 Ignorance of the law is no excuse. The average person may not know but I bet the criminal does.

 This is not a question of “convenience of law enforcement”. The fact is that if you have contraband in your house and police have to get a search warrant the contraband will be gone by the time they return.

 So let's see, man standing two houses away has no right of privacy but one standing in the doorway does? You see how screwed up it’s going to get and how police will not know what rules to follow? "Oh, no judge I was standing in the yard, not in the doorway."

News report of the arrest: "The defendant/victim of police abuse, claims that the police officer lied to justify an illegal search. According to the victim, he was standing on the sidewalk and not in his doorway. The illegal search took place at 4 a.m. There were several bystanders who confirmed the victims statement. The officer has had two reprimands for overstepping his authority. Several people have come forward to testify that this particular police officer has a reputation for lying to justify previous arrests. This newspaper is calling for the police chief take action against the officer for illegally searching for and finding fifteen pounds of cocaine in Mr. X's private living room, before typing out an affidavit, getting a judge out of bed, and serving the warrant on the victim prior to making a legal search of the living room."

[Realism]

It can pretend people have no expectation of privacy even when they do, and it can pretend that people routinely agree to things they have every reason to reject.

If no one is home to deny access. Refer to the Patriot Act.

[Moral Hazard]

"After all, most of us are familiar with the axiom that a man's home is his castle"

How did "a man's home is his castle" get promoted from an expression to an axiom?

[Altamira]

"The trial court rejected the claim because, it said, his wife had authority to admit police to their joint residence. But the Supreme Court took a different view: While she could have let them in when her husband was absent, he was present, and therefore had the right to bar their entry."

This is what the court said. Presence is what matters, not if you are standing in the doorway or not.

The requirement of a warrant protects the innocent, and, yes, the guilty. Our society is the better for it.

[nativesoutherner]

If I recall correctly, CJ Roberts argument was basicly why should there be a differentiation for someone "physically present in the entryway" who could deny entry, as the majority in this case ruled, versus someone "physically present" on the property, but in custody in the back of a police car in the driveway, who could not, as prior case law had determined. In both cases, the "significant other" gave permission to police to search. I believe his dissent had more to do with the Court failing to formulate a definition of "physically present occupant". See both US vs Matlock and Georgia vs Randolph for the slight difference. BTW, both cases are still valid.

[GovernmentShrinker]

I can see a lot of situations where this would infringe on the wife's rights. Say hubby is dealing drugs or child porn out of the house, which they share with their children, and she needs this documented for divorce/custody/child support proceedings. It's her house too, and she's trying to protect her children. She has a right to have her home searched if that's what she wants, and the right to have it searched before scummy-hubby gets rid of the evidence.

[nativesoutherner]

In your case, US vs Matlock would apply and she could invite the police in anytimr the hubby was not "physically present". BTW, there is a third case where the perp was asleep in the living room, but the Court ruled it was OK for the landlady to consent to a search, since he was not "physically present" to deny permission.

[timm22]

This is not a question of “convenience of law enforcement”. The fact is that if you have contraband in your house and police have to get a search warrant the contraband will be gone by the time they return...You see how screwed up it’s going to get and how police will not know what rules to follow?

So you are saying the police will have a harder time apprehending people with contraband...how is that not a question of "convenience of law enforcement"?

[The Ghost of FReepers Past]

Would you feel the same if it had been the man inviting the police in and the woman denying entry? Come on now and be honest. Or do you still think the man owns the house and the little wife is just another one of his possessions? Just curious.

[cryptical]

This is not a question of “convenience of law enforcement”. The fact is that if you have contraband in your house and police have to get a search warrant the contraband will be gone by the time they return.

That's always the risk, but if they are refused permission to search by an occupant they shouldn't search.

If they're afraid of the evidence disappearing, they can post officers to make sure nobody carries it out of the house.

[timm22]

She has a right to have her home searched if that's what she wants, and the right to have it searched before scummy-hubby gets rid of the evidence.

This issue is not simple, I'll agree with you there. Both sides have good arguments.

Still, at this point I agree with the majority's decision. I think that whenever you have a tough call to make regarding civil liberties and individual rights, it's usually a good idea to take the side that gives less power to the government. I would hope most conservatives would agree with me, even if they are not comfortable with the consequences of that guideline in this particular case.

[longtermmemmory]

This was abused by the cops all the time.

You just put ANYONE into the house and then let the plant "authorize" the entrance to the house.

[usurper]

While she could have let them in when her husband was absent, he was present, and therefore had the right to bar their entry.

So I guess LEOs will have to conduct a poll of everyone present in the home before entering, even the children.

[JTN]

I think that whenever you have a tough call to make regarding civil liberties and individual rights, it's usually a good idea to take the side that gives less power to the government.

That's the position I took in a previous thread on this case. I think I was in the minority, though. There was one poster who took the position that if any search is not obviously unconstitutional, then it is constitutional. I take the opposite point of view.

[William Terrell]

Ignorance of the law is no excuse.

Ignorance of the law is no excuse, not necessarily statutes. There are 'way too many of those and they conflict.

The fact is that if you have contraband in your house and police have to get a search warrant the contraband will be gone by the time they return.

Contraband! Gasp!

So let's see, man standing two houses away has no right of privacy but one standing in the doorway does? You see how screwed up it’s going to get and how police will not know what rules to follow? "Oh, no judge I was standing in the yard, not in the doorway."

Sorry. I can extract no sense from this paragraph at all. Do you actually think that, since the court said "doorway", a person present must must actually be standing in the doorway?

[jla]

Disappointed to hear that John Roberts failed this very simple test of conservative values.

Scalia and Thomas also dissented. Perhaps a more in-depth look at the case is in order before passing judgement on anyone's conservative values.

[kitkat]

***he has a right to have her home searched if that's what she wants, and the right to have it searched before scummy-hubby gets rid of the evidence.***

Agreed!

[freepatriot32]

Libertarian ping.To be added or removed from my ping list freepmail me or post a message here

[winston2]

I can see a lot of situations where this would infringe on the wife's rights. Say hubby is dealing drugs or child porn out of the house, which they share with their children, and she needs this documented for divorce/custody/child support proceedings. It's her house too, and she's trying to protect her children. She has a right to have her home searched if that's what she wants, and the right to have it searched before scummy-hubby gets rid of the evidence.

-------------------------------------------------------------------------------------------------------------------------------

There are marriage counselors, ministers, and legal means plenty for a spouse to remedy martial problems. Chances are - the wife was somewhat complicit to the contraband.

I know of several cases where a pissed off spouse or neighbor chose to use police bust of contraband to avenge for totally unrelated grievances. (So - who is the scum?)

There is no man so good, who, were he to submit all his thoughts and actions to the laws, would not deserve hanging ten times in his life.
Michel Eyquem, seigneur de Montaigne. (1533-1592)

[Know your rights]

The fact is that if you have contraband in your house and police have to get a search warrant the contraband will be gone by the time they return.

If they had drugs, they had to flush them and lose the money they paid (or were going to get) ... is that so far short of sufficient punishment that we have to violate the Constitution to make sure they're further punished?

[winston2]

This is not a question of “convenience of law enforcement”. The fact is that if you have contraband in your house and police have to get a search warrant the contraband will be gone by the time they return.

-----------------------------------------------------------------------------------------------------------------------------------------

I am further of opinion that it would be better for us to have [no laws] at all than to have them in so prodigious numbers as we have.
Michel Eyquem, seigneur de Montaigne. (1533–1592)

[Ken H]

So I guess LEOs will have to conduct a poll of everyone present in the home before entering, even the children.

If he had not objected, then search would have been allowed. I don't see anything that requires permission be obtained from other occupants. Did I overlook something?

[mysterio]

Good, good decision.

[JTN]

If he had not objected, then search would have been allowed. I don't see anything that requires permission be obtained from other occupants. Did I overlook something?

No, you didn't.

[goldstategop]

I agree. If the police think I committed a crime, they should go to the trouble of securing a warrant to search the premises of my place. If they don't, they're lazy in diligence and its not my job to make law enforcement's life easier or more convenient. As a citizen in a free country, I should have the right to say "NO" when the circumstances warrant it and when my interests would served by telling the authorities to wait til they get their warrant in hand.

(Denny Crane: "I Don't Want To Socialize With A Pinko Liberal Democrat Commie. Say What You Like About Republicans. We Stick To Our Convictions. Even When We Know We're Dead Wrong.")

[LibertarianInExile]

There is a reason this was a 5-3 opinion.

This ruling is a nightmare.

I am a libertarian. I believe the SCOTUS has bent far too directly to an authoritarian vision of the Constitution.

However, this is an opinion that will make it difficult for police to know when to bother with real crimes. It will cause nothing but more litigation. That is not the purpose of law, to decide on each situation as it occurs. The ideal law is a brightline rule society must follow, and those rules strictly enforced would present little or no discretion to police intent on harassment. However, here Souter says:

"W]here the defendant has victimized the third-party . . . the emergency nature of the situation is suchthat the third-party consent should validate a warrantless search despite defendant’s objections” (internal quotation marks omitted; third omission in original)). The undoubted
right of the police to enter in order to protect a victim, however, has nothing to do with the question in this case, whether a search with the consent of one cotenant
is good against another, standing at the door and expressly refusing consent."

Basically, he admits that in a domestic violence situation where there is disagreement over the search, the police may enter...but not in THIS domestic violence situation where there is disagreement over the search. In most situations where the police may confront domestic violence there are back-door ways around the search requirement--but not THIS situation. Breyer notes in his concurring opinion that "the Fourth Amendment does not insist upon bright-line rules."

But that is horseshit. Police work is based upon knowing the rules, and here, the court did not pick a rule at all. It is simply continuing the O'Connor reign of terror, now in the criminal law context. Any lawyer reading this knows damn well it'll create no certainty, just more lawyering, and that is why EVERY SINGLE LIBERAL on the court was for this opinion. It is an ABA dream opinion.

I don't agree with Roberts or Thomas 100%, but Roberts is dead-bang right in saying that:

"The rule the majority fashions does not implement the high office of the Fourth Amendment to protect privacy, but instead provides protection on a random and happenstance basis, protecting, for example, a co-occupant who happens to be at the front door when the other occupant consents to a search, but not one napping or watching television in the next room."

What does this mean for school lockers and drugs? What about all the other non-exceptions the same liberals have voted AGAINST? This is a nightmare, and again, the only people who should be happy with it are lawyers.

[Lancey Howard]

LOL!! Author Steve Chapman is beside himself with joy that a cocaine-using father beat the rap. Thank God the Supreme Court Hallelujah, and congratulations to Steve Chapman and the druggie. Common sense.

[LibertarianInExile]

One thing I forgot to add: If the majority wanted to strengthen the 4th amendment, they could have. If the dissent wanted to eviscerate it, they could have. The gutless majority didn't. The gutsy dissenters didn't either, because that was not at all their purpose in dissenting. Both Roberts and Thomas point out that this is lousy law. It follows neither precedent nor common sense, and we should expect both from the SCOTUS, not O'Connorish vacillation.

[Know your rights]

Author Steve Chapman is beside himself with joy that a cocaine-using father beat the rap.

Yes, let's throw out Constitutional protections for all so that we can punish more guilty people. Those Founding Fathers were clearly just druggie-coddlers.

[Lancey Howard]

Okay, I checked your homepage - - you're one of those anti-WOD warriors? A liberaltarian? "Uh, right, sir. Well, listen.... even though your girlfriend here says you're a cokehead and there's kids and drugs in the house, we'll go get a warrant and come back later. Just leave everything as it is, okay?"

[Brytani]

Ok, look at it this way. My husband and I both own our home. Both our names are on the title deed and both on the mortgage.

Who's rights trump who's? He has more right to allow/disallow entry into our home than I do, or do I have more right to allow/disallow entry into my home than he does?

Look at it this way, I can not call the police and have them forcibly remove my husband from the home (outside of clear cut abuse) because I decide he's not welcome in my home anymore. He has the right to enter into his own home. He can't do the same to me either. So again, who's rights trump who?

[Brytani]

In that case though, couldn't she produce evidence of drugs or child porn so the police could get a search warrant?

[robertpaulsen]

You do agree that a) the warrant would have been granted and b) the husband would have destroyed the evidence in the meantime?

Well, hey. As long as our constitution is safe.

[Know your rights]

"Uh, right, sir. Well, listen.... even though your girlfriend here says you're a cokehead and there's kids and drugs in the house, we'll go get a warrant and come back later. Just leave everything as it is, okay?"

Why would they have to leave? Leave one officer to make sure that no evidence leaves the residence, and that no harm comes to mother or children, while a warrant is obtained. If he's a cokehead, no way he can clean the place of all residue.

[Lancey Howard]

That's a good point.

[JTN]

Who's rights trump who's?

I don't think it's so much a matter of "Who's rights trump who's?" as it is a matter of "Which rights trump which?"

The court decided that the right of one member of the party to forbid entry supercedes the other's right to allow it. It's not granting the husband more power than the wife. If the roles were reversed, then the wife's right to disallow entry would rule.