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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On the Net:
Supreme Court: http://www.supremecourtus.gov/
That's what the Supreme Court has said about the 4th Amendment, and the exception you are refering to might even be something that should be in the Constitution, but its no where to be found except in the minds of a handful of judges who decided to add the exception. Making up provisions that aren't there is a dangerous precedent.
i think the scenario being envisioned is more a domestic violence situation where the "beator" says no and the "beatee" says yes.
HOWEVER, I think this smacks of occupant shopping in much the same way as the courts see forum shopping as a no no.
The police mearly wait for the 16 year old (which is all that is required in age for most states for service of process btw) and ask the child if it is ok to go in.
I think it really matters what the facts are in this case and the court have better CHAIN their ruling to those SPECIFIC facts.
Only whe she says, "No!"
Yes, freezing the scene and getting the warrant is always the better option, and it can be a fairly quick process, but certainly not the "5 minute" telephone call described.
So many factors, so little information to do an analysis.
Thanks
"If the second part of the sentence doesn't apply to the first, then there is absolutely no point in even adding the second phrase sense it has no meaning except in the context of the sentence."
Intersting . . .
On the one hand, two people have equal rights to privacy and, since both are present, one can not speak for the other.
On the other hand, the police were responding to a domestic disturbance complaint - where, likely, access to the domicile would be needed to ascertain whether a crime was being comitted (remember that it can be assumed that one or the other of the persons present could be "under duress" and unable to tell the police what occurred.)
Lastly, it seems obvious that the women used the situation to implicate her husband in a crime other than the one being investigated . . .
IMHO, the court should allow the entry into the domicile for the purpose of discovering whether the complaint was vaild - anything beyond that, should have needed a valid warrant.
"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."
I guess O'Connor will have to consult with French or German law to settle this one.
GR, an explanation of how the text, structure and history of the 4th Amendment shows that it is best interpreted as two separate clauses, and thus not requiring warrants in order for a search be deemed reasonable, may be found in pages 3-13 of the following PDF: http://islandia.law.yale.edu/amar/lawreview/1994Fourth.pdf
Perhaps it won't convince you, but I think you'll at least find the history and analysis interesting.
If you're interested in this and other issues of interpretation of the 4th Amendment, and have an hour to spare, read the whole article (it's 67 pages).
BTW, I know that I'm in the minority when it comes to the Warrant Clause, but I'm too much of a textualist to believe otherwise. (If you can find the old Kelo threads, you'll see that I similarly make a textual argument that the 5th Amendment does not require courts to determine whether a taking is for public use, but that a whole other matter).
FReegards,
AuH2O
"This is reason enough to recognize that granting the power to refuse entry to the suspect by denying the victim the right to request police assistance would be a miscarriage of justice."
With that statement, you are assuming that the wife is the victim of something, and the husband is the suspect.
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