Court makes it more difficult for police to search homes

By David G. Savage

Los Angeles Times

WASHINGTON – The Supreme Court on Wednesday strengthened the rights of residents to bar police from entering and searching their homes, but the ruling drew a sharp dissent from new Chief Justice John G. Roberts Jr.

In a 5-3 decision, the justices said a homeowner may prevent officers from looking for evidence without a warrant, even if a spouse and co-owner had consented to the search.

In the past, most courts had said that the consent of one person was sufficient to permit a home search by the police.

The first major criminal law decision of this term, the case split the court along ideological lines, with the new chief justice speaking for the conservatives in his first written dissent.

“Sharing space entails risk,” Roberts said, including the risk of having your secrets and private items exposed to the police. In the case before the court, the wife’s wish “to cooperate with the government” in a drug investigation should not be thwarted by giving her husband a “veto power,” Roberts said. Justices Antonin Scalia and Clarence Thomas agreed with him.

But a moderate-to-liberal majority led by Justice David H. Souter cited the “ancient adage that a man’s home is his castle” and that even “the poorest man may in his cottage bid defiance to all the forces of the Crown.” On a more everyday level, Souter said “no sensible person” would think he was free to enter a house if one of its two occupants stood in the doorway and said “stay out.” That, in sum, is what happened in the case of Scott and Janet Randolph, an estranged couple from Americus, Ga.

After leaving to stay with her parents in Canada, Janet Randolph returned to their Georgia home in July 2001 and shortly afterward called police to report her husband was a cocaine user. When police arrived at their house, she invited them inside and said they would find evidence of his drug use in their bedroom.

Scott Randolph, a lawyer, refused to let the officers in. They entered anyway and upstairs found a straw with a white powder that proved to be cocaine.

The case of Georgia v. Randolph asked whether this entry without a warrant was legal.

The Fourth Amendment forbids “unreasonable searches” by the government, and it generally requires police to have a search warrant before entering a home. But persons may freely consent to a search without a warrant.

So, what happens if one occupant of a home agrees to have the police come inside, while the other adamantly refuses? The Supreme Court had never answered that question until Wednesday.

Most appeals courts had upheld searches as valid when one person consented. But the Georgia courts suppressed the drug evidence in Randolph’s case because the husband had not consented to the search of his house. These judges noted that the police could have used information from the wife to obtain a search warrant from a magistrate.

Nonetheless, state prosecutors and the Bush administration urged the Supreme Court to reverse the Georgia ruling and to make clear that searches were permitted whenever one occupant consented.

The Supreme Court refused Wednesday and ruled the drug evidence was properly suppressed.

“A warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable,” said Souter.

Justices John Paul Stevens, Anthony M. Kennedy, Ruth Bader Ginsburg and Stephen G. Breyer agreed with Souter. New Justice Samuel A. Alito Jr. did not participate in the decision since the case was heard in November, before he joined the court.

Souter said it would be different if police had come to protect Janet Randolph from physical abuse. Police have an “undoubted right … to enter in order to protect a victim,” he said.

It also would have been different had Scott Randolph not been there when police arrived. “We have to admit that we are drawing a fine line,” Souter said, since the court in the past had ruled that one person can consent to search a home when a co-occupant is being held elsewhere.

The ruling almost certainly will apply to other residences, such as apartments and group homes. It may not restrict searches of cars, however, because police are given more leeway to search vehicles.

Before Wednesday, the court had handed down 11 consecutive unanimous decisions.