When privacy is not so private
Slate has an amusing review of the oral arguments from a case heard yesterday, Georgia v. Randolph. After being called about a domestic disturbance at the Randolph home, police were led by Mrs. Randolph to a sock drawer upstairs where her husband kept some cocaine. Mr. Randolph returned home in the middle of this and demanded that the search stop. The police didn't stop. They found some more cocaine and arrested Mr. Randolph on drug charges.
The question facing the Supremes: what if one inhabitant of a house objects to a search, while the other inhabitant allows it? Should the law err on the side of protecting privacy -- and thus require a warrant in this case -- or should it err on the side of allowing the search? The court seemed divided, with Chief Justice Roberts on the side of "when you live with someone, you compromise your expectation of privacy" and Justice O'Connor leading the side of "just because one inhabitant says it's okay to let the police in, doesn't make it okay."
Read these briefs from the petitioner and respondent in the case and then go read the Georgia Supreme Court's opinion, which held that "the consent to conduct a warrantless search of a residence given by one occupant is not valid in the face of the refusal of another occupant who is physically present at the scene to permit a warrantless search."
Comments
Are there any distinctions here? Shouldn't a husband and wife who own property be treated differently than, say, a group of people who live together in a house? If I'm an 18 yr old kid and I consent to the police searching my parent's house (while they're present and object) should the situation be treated differently than if I'm a husband who consents and my wife presently objects? It wouldn't bother me if the law allowed a search to continue if one spouse consents and one spouse objects. It would bother me, however, if three guys own a house together, one guy consents to a search with the others two in protesting in vain, and the police are able to continue a search.
Posted by: Ned Weinberger | November 9, 2005 5:08 PM
All the controlling cases involve situations in which a husband and wife (or boyfriend and girlfriend) are living together. There's no federal precedent for people living together in a house. I expect that in the latter situation, deference might be made to the person who actually owns the house, if it's one of the people living there.
It seems as though the court is going to rule in favor of Mr. Randolph, though. Even Scalia didn't appear thrilled with the notion that, as long as just one person allows a search, then the police can search the home, even if a hundred other tenants object.
Also, the Fourth Amendment gives great deference to the person being searched; if it were a tie between "search" and "don't search," I think the law's default would be "don't search."
Posted by: Mark | November 9, 2005 5:29 PM