Posted on 11/08/2005 2:14:12 PM PST by NormsRevenge
WASHINGTON - The Supreme Court considered whether police may search a home when one resident says to come in but another objects, in an unusually spirited debate Tuesday that drew out even the usually silent Justice Clarence Thomas.
Justices took up a case that arose in a small Georgia town. The wife of a local lawyer invited officers in to search their house after the husband turned them down. The search uncovered evidence of illegal drugs.
The Supreme Court has never said whether the Constitution's ban on unreasonable searches covers such a scenario — when one home occupant says enter and another says no.
Thomas, who rarely asks questions during court sessions, spoke several times and hinted that he would back the police.
The case could be so close that it comes down to Justice Sandra Day O'Connor, who is retiring. If her successor is confirmed before the ruling is announced, her vote will not count.
"Don't we have to look to social understanding and the right to privacy?" O'Connor asked. "The wife says come on in and the husband is right there and says no."
The dispute arose in 2001 when police in Americus, Ga., were called to a domestic dispute at the home of Scott Fitz Randolph and his wife, Janet.
The two were having marital troubles, and she'd recently taken their son to her parents' home in Canada. Scott Randolph's lawyers said the police call came when she returned for a few days to get belongings.
Janet Randolph led officers to evidence later used to charge her husband with cocaine possession. That charge is on hold while the courts resolve whether the search was constitutional. Georgia's Supreme Court was divided in ruling for Scott Randolph.
Americus is a town of about 17,000 near Plains, the hometown of former President Carter. It's about 200 miles from Savannah and Pin Point, where Thomas was raised.
Thomas Goldstein, the lawyer for Scott Randolph, said it would have taken police only five minutes to get a judge's approval over the telephone for a search warrant.
Michael Dreeben, an attorney for the Bush administration, which backs police in the case, said people should be encouraged to cooperate with law enforcement.
Several justices seemed sympathetic to the police, raising concerns that limits on searches would hamper domestic disturbance investigations.
"The two words on my mind are 'spousal abuse,'" Justice Stephen Breyer said.
Chief Justice John Roberts worried that if a home had 10 occupants, all 10 would have to agree before a search.
The court's two women, O'Connor and Ruth Bader Ginsburg, seemed more inclined to back the rights of homeowners who turn police away.
Eight of the nine justices are married, and several seemed concerned that one spouse could object to a stranger coming into the house and be trumped by the other spouse.
"It seems to me an odd proposition," Justice Antonin Scalia said.
"Can the wife say, `It's OK for you to come in and you can look in my husband's top drawer?'" Justice Anthony M. Kennedy asked the lawyer for Georgia, Paula Smith
Smith responded that the wife may have put socks in the drawer.
The case is Georgia v. Randolph, 04-1067.
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"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."
Please note that these are two separate clauses, the first protecting against unreasonable searches, and the second imposing strict conditions before a warrant may be issued. The 4th Amendment does not require that warrants be issued before a search may be undertaken. The Founders hated warrants, since they would allow the police to escape liability in a civil suit, so they added the Warrant Clause to make it difficult for the police to obtain warrants.
Ever hear of something called warrants? Good forbid the cops bust into your house and destroy property someday in a case of mistaken identity (happened to a neighbor of mind years ago).
Would the fact that the one saying 'yes' was the reporting victim in a domestic disturbance call and the one saying 'no' was the alleged suspect be considered 'unusual circumstances' to you?
I can't stand the "law and order" freaks. I always suspect that they have leather parties with posters of Ernst Rohm and Rudy Giuliani on the wall.
"The Fourth Amendment guarantees the right against searches and seizures without a warrant."
Please take my rights, I wasn't using them anyway.
I have nothing to hide and still would tell cops to stay the hell out of my house . Remember, the court's decision came down last month that it is not the police departments job to protect you .
my point exactly..
Perhaps if the police acted like a collection agency, continuing to pester the homeowner until they get an angry " yes, da**it " at 4 AM should be acceptable.
...Thomas Goldstein, the lawyer for Scott Randolph, said it would have taken police only five minutes to get a judge's approval over the telephone for a search warrant...
If someone else was living in your house and called police to report that you were assaulting them, and then when the police showed up they invited them in, you shouldn't have the option of blocking the police from assisting the victim.
And why wasn't SHE charged?
Possession isn't proved just cause she says,"It's his!".
A competent lawyer should have a field day with this one.
"I can't stand the "law and order" freaks. I always suspect that they have leather parties with posters of Ernst Rohm and Rudy Giuliani on the wall."
Yeah, require the police to give a five minute head start to suspects after they become aware that a search is about to take place so they can dispose of evidence.
The police entered and searched in good faith that they were legitimately invited, in a situation where they knew a warrant would be issued if necessary. That makes this clearly a situation of inevitable discovery.
Tough case. If the wife was a documented victim of domestic violence, consented to the entry, then the cops accepted the husbands "No", there would be serious liability problems for the cops if she was subsequently injured.
Then again, the husband had a right to not consent to a search of his domicile.
If the evidence was in plain view, the police were lawfully in the house due to the wifes consent, and anything they saw in plain view was fair game under present case law-this article is unclear on if that happened.
If she led them to a location and identified it as having contraband (Drugs), then exigent circumstances may apply, and the police can execute the search based on the probable cause statement of the wife, and the exigent circumstances provided by the possibility that the evidence would be destroyed/lost while trying to get the warrant.
The probable cause used for the exigent circumstances would need to be the same as that needed for the warrant. In other words, given the time to get a warrant, could they have proven probable cause
Once again, the article doesn't give a clear view of what happened so that case law can be applied, just outlining the possibilities of what was applied, and why
I see your problem already. The police don't need to ask each and every occupant if it's ok to search. The police only need to ask a single judge. We could toss out ALL warrantless searches and not hurt anything.
I disagree with you on point (i). Making warrants difficult to get was the intent of the founders. As for point (ii), my heart may want me to say "yes" and allow such evidence, but my brain tells me that there is no excuse for shoddy police work from the donut brigade.
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