SCOTUS on Conflicting Search Permissions

This is an entry from SCOTUSblog. I read several news reports and this is just more informative.

The Supreme Court ruled 5-3 on Wednesday that it is unconstitutional for police without a warrant to search a home, if two occupants are present at the time and one consents but the other objects. The search may not go forward in the face of that objection, but the occupant must be present to have the objection count, the Court said in a decision written by Justice David H. Souter. The ruling in Georgia v. Randolph (04-1067) was the only decision of the day in an argued case.

"We have to admit we are drawing a fine line," Souter wrote, but added "we think the formalism is justified" and that it will be easier to enforce in practice. Thus, the Court held, If the individual who may be at legal risk of prosecution and thus does not want the police to enter "is in fact at the door and objects," the other occupant's consent to search will not suffice. But, Souter added, if the objector is nearby, and not at the door, an objection by him will not block the search. The Court stressed, though, that police may not take a potentially objecting tenant away from the home in order to be able to make the search with the other occupant's consent.

This argument does end up in the arguments that are more "nuanced" on constitutional law. Personally, I think they got it correct, though they are definitely dancing on the edge. I don't think this makes the Police's jobs any more difficult, which I'm sure is going to be an argument somewhere.

Chief Justice John G. Roberts, Jr., in his first written dissenting opinion, said the majority fashioned a rule that "does not implement the high office of the Fourth Amendment, 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....The cost of affording such random protection is great, as demonstrated by the recurring cases in which abused spouses seek to authorize police entry into a home they share with a non-consenting abuser."

Much of Roberts' dissenting opinion was aimed at undercutting the majority's reliance on "social expectations" about privacy that justified the distinction drawn by the ruling. When property is shared by two or more people, privacy is shared and expectations of what privacy will be protected depends upon the discretion of the other individual, Roberts said.

I guess I'll have to agree with the "happenstance" statement. Though it does have a certain logic. the police don't go to the extent of tracking down all the dwellings occupants to get permission to search. If the person is there and denies permission, that should be the end of it.

Though I do find Roberts' view, as I see it, that the occupant giving permission is the one that gets authority is utter rubbish. If privacy is a right, then the enforcement of such a right to the strictest boundaries is what is logical. The person giving permission isn't losing any right to privacy, but the denier is losing that right when the police are allowed to come in based on the assenter's permission.

This also can't be viewed as limiting the ability of the police to perform a reasonable search. If a crime is evident and the evidence is known to be in the residence, the police have a reasonable expectation of entry to get the evidence.