Supreme Court Adds Limits to Search and Consent

In a 5-3 decision, the U.S. Supreme Court rules that police without a warrant cannot search a home when the residents disagree about whether the police can enter. Chief Justice John Roberts was among the dissenters, saying the ruling could have severe consequences on domestic violence cases.

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The Supreme Court ruled today that police cannot search a home without a warrant when one occupant gives permission and another occupant objects. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG reporting:

When police arrived at the home of Scott and Janet Randolph in July of 2001, she complained that he was a cocaine user, and he said she was a drug and alcohol abuser. When police asked if they could go inside to search the house, he unequivocally refused, but she agreed, and took the police upstairs, where one of the policemen saw a powdery substance that looked like cocaine and a straw, which the policeman put in an evidence bag and took to the police station. Randolph was subsequently indicted on drug charges, but the Georgia Supreme Court ruled that the evidence against him had been taken in an illegal search and could not be used at trial.

Today the U.S. Supreme Court agreed by a 5-3 vote. Writing for the five-justice majority, Justice David Souter said that police cannot search a house without a warrant based on the consent of one occupant when the other objects. He acknowledged that under previous Supreme Court rulings, if Randolph had not been present, the police could've searched with the wife's consent alone, but Scott Randolph was there. There was no indication of any exigent circumstances, no threat or danger to Mrs. Randolph, and if police were worried about the possible destruction of evidence, said Justice Souter, they could've secured the premises while going to get a warrant.

In a concurring opinion, Justice John Paul Stevens observed that at the time the Constitution was adopted, a wife's word would not have counted for much, since a husband was the master of the house under the law. Stevens noted that in today's world, though, each partner has an equal right under the Constitution to be free from warrantless searches, and each partner can assert that right. Neither one, he said, is a master, and neither can override the other. Joining Souter and Stevens in the majority were Justices Ginsburg, Breyer and Kennedy.

Chief Justice John Roberts, in his first written dissent since joining the court, lambasted the majority opinion, saying it would establish no rule of law that police could follow and would make it more difficult for police to protect wives in domestic violence situations when husbands refuse to allow entry to the house. The majority called that assertion a red herring, saying that police always have the right to enter a dwelling to protect a resident if such a threat exists.

Criminal law experts said today's ruling would affect a relatively small number of cases, but some said it would make life more difficult for police. George Washington University law professor Stephen Saltzburg.

Mr. STEPHEN A. SALTZBURG (George Washington University Law School): I think the confusion for the police is going to come in terms of how certain they have to be that there's some danger that will occur if they don't actually enter at that time when one party wants them to consent. That I think is going to be a difficult thing for police officers to deal with.

TOTENBERG: Stanford law professor Robert Weisberg agrees.

Mr. ROBERT WEISBERG (Stanford Law School): It makes life a little more difficult for police in a very specific set of situations. It's not a trivial set of situations. You know, it's the odd situation where you've got two equal co-occupants of a house or an apartment and one of them says to the police you may come in and look around and the other says no, you can't. That doesn't happen very often, but it does happen, and it tends to happen somewhat disproportionately when there's a domestic violence problem.

TOTENBERG: But Ohio State law professor Joshua Dressler, who's written extensively about battered wives, disagrees.

Mr. JOSHUA DRESSLER (Ohio State University): I'm not worried. There are so many different ways in which the police can deal with a problem at the home that if there is an ongoing assaultive conduct on the part of a person in the house, they'll be able to get in. They just won't be able to use the consent basis to enter the house. But there are just so many other ways to do so.

TOTENBERG: Lawyer Thomas Goldstein, who represented Scott Randolph in the Supreme Court, says today's ruling will make police think twice, and that, says Goldstein, is what the Constitution requires.

Mr. THOMAS C. GOLDSTEIN (Attorney, Goldstein & Howe, P.C.): This decision means that the police are going to have to exercise judgment about whether they really do need to come into the house, and whether they're going to go to the trouble of going and asking a judge for a warrant, or if there's some emergency, to come in, and that's a good thing. That's what the Constitution requires. It wants there to be really a reasonable need to come into a private home.

TOTENBERG: Ironically, even in the Randolph case, when police on the scene checked with headquarters, they were told to stop all their activity and get a warrant.

Nina Totenberg, NPR News, Washington

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