Patterico's Pontifications

3/23/2006

Great Roberts Dissent in Search Case

Filed under: Constitutional Law,Court Decisions,Dog Trainer,General — Patterico @ 7:30 am



The L.A. Times reports:

A homeowner has the right to bar the police from entering without a warrant to look for evidence of a crime even if the spouse agrees to the search, the Supreme Court ruled today.

The opinion presents an interesting question: if you and I live in the same house, and you consent to a police search and I expessly refuse consent, can the police conduct the search and use the results against me?

Before reading Chief Justice’s Roberts’s brilliant dissent, my instinctive reaction might have been to say “no.” But he makes a very convincing argument.

For example, as today’s article notes, in the majority opinion written by David Souter,

. . . 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.

Roberts responds:

The Court observes that “no sensible person would go inside under those conditions,” ante, at 8-9, and concludes from this that the inviting co-occupant has no “authority” to insist on getting her way over the wishes of her co-occupant, ante, at 10. But it seems equally accurate to say — based on the majority’s conclusion that one does not have a right to prevail over the express wishes of his co-occupant — that the objector has no “authority” to insist on getting his way over his co-occupant’s wish that her guest be admitted.

The fact is that a wide variety of differing social situations can readily be imagined, giving rise to quite different social expectations. A relative or good friend of one of two feuding roommates might well enter the apartment over the objection of the other roommate. The reason the invitee appeared at the door also affects expectations: A guest who came to celebrate an occupant’s birthday, or one who had traveled some distance for a particular reason, might not readily turn away simply because of a roommate’s objection. The nature of the place itself is also pertinent: Invitees may react one way if the feuding roommates share one room, differently if there are common areas from which the objecting roommate could readily be expected to absent himself. Altering the numbers might well change the social expectations: Invitees might enter if two of three co-occupants encourage them to do so, over one dissenter.

The possible scenarios are limitless, and slight variations in the fact pattern yield vastly different expectations about whether the invitee might be expected to enter or to go away. Such shifting expectations are not a promising foundation on which to ground a constitutional rule, particularly because the majority has no support for its basic assumption — that an invited guest encountering two disagreeing co-occupants would flee — beyond a hunch about how people would typically act in an atypical situation.

Well said.

The Times‘s David Savage characterizes Roberts’s argument in a cartoonish way designed to make it look unreasonable:

The ruling, the first major criminal law decision of this term, came over a strong dissent from Chief Justice John G. Roberts Jr. He said people who share a dwelling give up most of their privacy rights.

That is an unfair reading of the dissent, which explains:

The majority also mischaracterizes this dissent as assuming that privacy shared with another individual is privacy waived for all purposes including warrantless searches by the police. Ante, at 11, n.4. The point, of course, is not that a person waives his privacy by sharing space with others such that police may enter at will, but that sharing space necessarily entails a limited yielding of privacy to the person with whom the space is shared, such that the other person shares authority to consent to a search of the shared space.

That is not the same as giving up most of your privacy rights.

A great performance by Roberts, and a typically poor one by The Times.

P.S. Those criticizing Roberts for analogizing police to houseguests are unwittingly bolstering his point. That analogy was made by the majority, folks, not by Roberts. He simply criticizes the analogy (devastatingly so) by pointing how how inapt it is.

It’s always a good idea to read the opinion before you opine.

76 Responses to “Great Roberts Dissent in Search Case”

  1. I was amused by the observation that Souter makes a huge deal about the “a man’s home is his castle” line, but was in the majority in Kelo.

    I would also like to point out now that I believe that Kelo was rightly decided, and all the whining and bitching over, particularly by libertarians, it are incredibly annoying.

    Angry Clam (fa7fff)

  2. “The possible scenarios are limitless, and slight variations in the fact pattern yield vastly different expectations about whether the invitee might be expected to enter or to go away”

    Haven’t read the opinion, but it seems to me the quick answer to the Roberts reasoning is that without knowing more of the circumstances, we give deference to the privacy of the home, strongly recognized in the line of cases such as Kyllo.

    actus (6234ee)

  3. Hmmm. Well I can’t imagine this comes up very much, or will in the future.

    It isn’t exactly a novel idea that you cannot search such an area against the express wishes of the occupant absent probable cause. I see Roberts’ point but the basic concept is you can’t search someone without their permission.

    So if the police want to enter and someone that lives there says no, they can’t. Seems reasonable to me, since otherwise you allow one person to in effect consent to someone else being searched.

    Dwilkers (a1687a)

  4. Actus, the standard is reasonableness. The word the Fourth Amendment uses is “reasonable.”

    So, if you think that both Souter and Roberts (and hence the police) had pretty much reasonable arguments, then it seems to me you’ve got to defer to what the police did. You can only overturn what the police did if they’re being unreasonable. How can you say that the government loses under the Fourth Amendment, if the government was being reasonable?

    Andrew (08ba2c)

  5. “How can you say that the government loses under the Fourth Amendment, if the government was being reasonable?”

    I don’t think its reasonable to fail to defer to the privacy of the home, without other circumstances, some of which roberts listed.

    actus (ebc508)

  6. Ugh, 3 dissents and 2 concurences out of 8 participating. A muddled mess.

    Dwilkers (a1687a)

  7. […] If you read this Patterico post, it would lead you to believe I am misinterpreting the dissent. No matter- I am still fed up with the GOP. […]

    Balloon Juice (c62e7c)

  8. Angry Clam – I understand why libertarians are upset. But what they don’t seem to get is that their objection is a policy objection, and that it should be easy enough to push for the legislature and/or the voters (via initiative) to make it impossible for the state in which they live to do it.

    aphrael (e7c761)

  9. Yeah, Roberts whole guest who travels a long distance for a surprise party analysis was “brilliant”. Well said, well said. The dissent would have been even more brilliant if he pointed out the party guest might have been carrying an ice-cream cake that would melt if he was not allowed in to put it in the freezer right away, and that the guest was really tired and needed to put his feet up for just a few minutes, and if the occupant of the house would be a dear and rather than just decline entry, fetched him a spot of tea. Really put Souter in his place on that one indeed.

    Bryce Pashler (68e5ab)

  10. After reading all the opinions, I’m struck by how good the arguments from all sides are (well, Stevens’ was odd but raised some good points). Its as if all sides can be right, which makes me agree with aphrael that it is a argument that best resolved by democratic action in the legislature.

    Tob

    toby928 (f6a7ec)

  11. The policy objection, aphrael, I don’t mind at all.

    I’m referring to the “THIS IS A TRAVESTY!!!! FIFTH AMENDMENT!!!!!!!!!!!” type complaining that we saw after the decision issued.

    I will admit that it is less annoying than Randy Barnett-style 9th Amendment revisionism, but it’s right up there with that and substantive due process for me.

    Angry Clam (fa7fff)

  12. A major flaw in Roberts’ rebuttal is that a police search is generally a far higher-stakes situation than not liking a roommate’s visitor.

    Generally, roommates or cohabitors will come to some kind of arrangement, because it’s not *that* big of a deal if you don’t like your roommate’s patchouli-stinking friends.

    In a higher-stakes situation, where a potential visitor has a record of stealing, or starting fights in the house, or breaking things, the resident who wishes to decline entry is more likely to have his way, and the visitor will be banned.

    And a warrantless police search is certainly a high-stakes situation, especially if, say, your roommate has planted evidence against you.

    How does it work if the person is already in the house, and you want him removed by the police? I suspect it only takes one resident’s expressed wish for this to happen.

    If that’s the case, then why should it be any different when it comes to not allowing someone to enter the residence?

    Jon H (2dc44e)

  13. Roberts writes: “but that sharing space necessarily entails a limited yielding of privacy to the person with whom the space is shared, such that the other person shares authority to consent to a search of the shared space”

    The second part does not follow from the first. It’s one thing to surrender privacy to your roommate. It’s a huge, unjustified leap to say that by doing so you also surrender your rights to the state.

    Jon H (2dc44e)

  14. Haha – Roberts isn’t insisting that the roommate who doesn’t want his home searched “waive” his right. He merely “yields” it.

    Boy these conservatives sure do seem to love their warrantless searches, don’t they?

    Robert’s line of reasoning reminds me of Patterico’s silly Conventional Wisdom series, where unlike objects are compared to one another for their mutual obfuscation. Will Patterico let me search his home? After all, it’s just like a birthday party!

    m.croche (85f703)

  15. My memory of property law is that if one cotenant grants you permission to enter, even if another tells you to leave, you are not a trespasser, and therefore the police may not remove you as a trespasser. All cotenants share equally the power to grant a license to use the property. If I am wrong about the property law rule, then let me know.

    Contrary to some comments, Roberts is not saying that privacy rights yielded to a roommate are then also given to the police; in other words, they are not “made public” so that any intrusion by the police is no longer a search. Rather, and quite reasonably, he argues that things shared with a roommate may then by that roommate be shared with a third party without commiting any legal wrong.

    One may still argue this rule is correct, but it should be acknowledged that the Court has here crafted a special rule that applies only to the police, and says that the police may not do things that any other member of the public may do.

    Matto Ichiban (59bfb8)

  16. Well, happy day! I’m going to agree with the libs. It seems to me that in weighing the competing interests, the Fourth Amendment rights of the person who doesn’t want to admit the police should be deferred to.

    And frankly, Roberts’ reasoning seems nonsensical to me, but what do I know?

    CraigC (4525c5)

  17. Hardly brilliant, Robert’s reasoning is mostly silly as others have stated. Uninvited police at your door with the ability to haul you away to jail are hardly like birthday guests who traveled a long way. It’s dumb. When threatening individuals, and police are certainly threatening to many, show up at your door, you should be able to object to their entrance even if your roomie finds them less than threatening.

    And of course, if they have a reasonable reason to enter your house, they can secure the premises, make the suspect stay in their site, and then attempt to get a warrant before their search. If they suspect danger at anytime they can also enter. The police did neither of these. They simply entered despite objection from an occupant and started to search the premises. That’s unreasonable search. You need a reason to search someone’s house without their permission. Since there was no danger to speak of, that reason must be certified by a judge. A poor dissent all around and particularly embarrassing in the above excerpt.

    kj (45ed40)

  18. “it should be acknowledged that the Court has here crafted a special rule that applies only to the police, and says that the police may not do things that any other member of the public may do.”

    The police are not members of the public, they are agents of the government. If your roommate invites a member of the public in who then proceeds to steal your straw because he suspects it contains drugs, you could call the police and have him dragged downtown for stealing your straw. Therein lies the difference between the police and the public.

    kj (45ed40)

  19. I am not an attorney, nor have I spent sufficient time perusing the complete decision to claim a deep understanding thereof, but I quote this snippet from the syllabus:

    Second, a fine line must be drawn to avoid undercutting Matlock—where the defendant,
    though not present, was in a squad car not far away—and Rod-riguez—where the defendant was asleep in the apartment and could have been roused by a knock on the door; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not part of the threshold colloquy, loses out. Such formalism is justified. So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance specifically to avoid a possible objection, there is practical
    value in the simple clarity of complementary rules, one recognizing
    the co-tenant’s permission when no fellow occupant is on hand, the other according dispositive weight to the fellow occupant’s expressed
    contrary indication

    It seems that it is the concensus of the Court that indeed, “people who share a dwelling give up most of their privacy rights.”
    The only dispute between Roberts and the majority seems to be regarding the precise parameters of the loss of privacy.
    BTW, I forsee a need for a precise definition of what constitutes “an expressed contrary indication.”

    great unknown (a90377)

  20. The Fourth Amendment protects people not places. You surrender a lot of privacy and autonomy rights to your spouse that you do not surrender to anyone else. Can she or he transfer those rights? Can you wake up in the morning next to a stranger your spouse invited in? Can she invite a stranger to search your wallet and you have no right to stop him without being guilty of assault? That is the flaw I see in the CJ’s argument.

    Let’s not forget also, 1) Mr. Randolph was there refusing consent to the search (distinction from the Coolidge case) 2) this was a woman hostile to her husband (also as opposed to Mrs. Coolidge) 3) her statement could have been the basis for a search warrant before the search (in fact the DA advised a search warrant and the police got one but one step too late) 4) it was not a gun, it was cocaine — totally irrelevant to a domestic violence call.

    Finally, with apologies to our host, I will be less than liberal and say that it is a shame that the lowest common denominator of society, i.e. the likes of Mr. and Mrs. Randolph, is shaping our constitutional jurisprudence.

    nk (47858f)

  21. nk, if a wife invites a private detective into the house, then it seems from Matto Ichiban’s comment (#15), that she can do so over hubby’s objections. But that doesn’t mean that hubby is without recourse. There’s something called “partition” which any co-tenants can demand in order to divvy up the property.

    Interestingly, Justice Scalia was the only judge in this case who mentioned trespass law, and good for him (although he certainly didn’t go into much depth).

    Scalia wrote, “From the date of its ratification until well into the 20th century, violation of the Amendment was tied to common-law trespass.”

    It’s also interesting that CJ Roberts declined to address this aspect of the case.

    Andrew (08ba2c)

  22. Further thoughts: Something has been rubbing me the wrong way about this decision and I just figured out what it is: Justice Souter equating a roommmate with a spouse. Now, I can see why he would do so since has never been married but I am surprised that the other Justices went along even, implicitly, the dissents. There is a sanctity and a trust in the marital relationship which does not exist between roommmates and it was violated here. I am very surprised that Scalia did not catch on and I think Thomas, who stuck to a straightforward stare decisis argument, was probably the best of the bunch.

    nk (32c481)

  23. Andrew,

    See my comment 22. We posted past each other.

    nk (32c481)

  24. Finally, with apologies to our host, I will be less than liberal and say that it is a shame that the lowest common denominator of society, i.e. the likes of Mr. and Mrs. Randolph, is shaping our constitutional jurisprudence.

    nk, Could you possibly be remotely or indirectly favoring the civil law system as opposed to the common law system in so far as constitutional law cases are concerned?

    Maybe it’s the lack of distinction between case law approach for usual cases and the case law approach for constitutional law cases, where different outcomes could possibly be obtained by either common law case law approach or civil law codification approach, to the constitution. The latter [ civil law approach to the interpretation of the constitution] could have developed a more complete sanitized jurisprudence considering all factors and setting the borders more clearly and not based on the instant case.

    The exception you take for your given reason, could it not also belie the deeper reason, Scalia echoed elsewhere on which approach is more appropriate for the constitution?

    Yi-Ling (7942cd)

  25. No, Yi-Ling, definitely not. Legislatures overreact much more than judges to perceived threats to their ability to collect next year’s taxes (metaphor for law and order). To explicate my comment, child-knapping, cocaine inhaling people create precedents for the police being able to invade my home. That is the shame I am talking about.

    nk (35ba30)

  26. nk, if a private detective can do something legally without any court authorization, don’t you think that it’s reasonable to suppose that the police can do so too?

    Andrew (08ba2c)

  27. Moronic.

    Comparing an unwanted guest to unwanted police troopers searching your house!!! Give me a friggin break.

    This is our great new chief justice????

    wtf (1b6046)

  28. Hey Rico, when you fascists take over, will you give us liberals 24 hours running time? In the name of being a good sport and all?

    jerry (a3c869)

  29. Let me get this straight. If a man gets lucky and a woman with a rommate consents to have sex with him, he can have sex with the roommate even if she says no, because she has sacrificed her rights by living with someone who said yes? What a bunch of maroons. If logic was twisted any harder, it would shatter.

    [Your *comparison* is what twists logic. Nobody disputes that your roommate can give valid consent for your house to be searched if you’re not there and don’t object. You can’t *ever* consent to sex for domeone else. So your analogy is inapposite, if not outright silly. — Patterico]

    ed (be6936)

  30. To explicate my comment, child-knapping, cocaine inhaling people create precedents for the police being able to invade my home. That is the shame I am talking about.

    nk,

    Well maybe some philosophers do not argue and think like lawyers! But Prof Koons http://www.utexas.edu/cola/depts/philosophy/faculty/koons/ on philosophy of law seems to state in writing, the following –

    Scalia’s Charge [http://www.utexas.edu/courses/phl347/lectures/lec19.html http://www.utexas.edu/courses/phl347/ ]
    • J. Scalia has argued that the common law tradition has corrupted constitutional law in the U.S.
    • The text of the Constitution is a kind of super-statute, and so must be interpreted by the traditions of the civil law.
    • Instead, attention to past cases now dwarfs attention to the actual text.

    What would a Civil-Law approach to the Constitution look like?
    • Abandon, or severely limit, stare decisis.
    • Focus on actual wording of the Constitution, taken as a whole.
    • Shift emphasis away from individual rights, and toward the organic functioning of govt.: separation of powers, federalism, checks and balances.

    And if he [ Koons] is right in his interpretation, from the view point of ‘philosophy of law’ , then your reply is within his idea of the traditional common law approach used in interpretation of the constitution.

    Yi-Ling (7942cd)

  31. Comparing an unwanted guest to unwanted police troopers searching your house!!! Give me a friggin break.

    You’re completely missing the point. To Janet Randolph, they most certainly were wanted.

    The point is that whether you enter a house or not depends on the circumstances — you won’t *always* go away just because *one* of the occupants doesn’t want you there.

    Patterico (59bfb8)

  32. Hey Rico, when you fascists take over, will you give us liberals 24 hours running time? In the name of being a good sport and all?

    Friendly liberals, yes. But liberals like you, who call me a fascist, will be immediately rounded up and dealt with appropriately.

    Patterico (59bfb8)

  33. Andrew, re your comments #21 and #26,

    The Fourth Amendment can only address state action not private action. The state legislatures regulate the ability of private detectives, guests, invitees and interlopers to intrude. So Georgia v. Randolph is an argument to our legislatures not to let private detectives do what sworn peace officers cannot. Not the other way around as you propose. The same about partition. Again, that is a private action to determine the respective property rights of the parties. Not the government’s. BTW: There is no right of partition between spouses. Spouses cannot sue each other except for divorce and in some states for intentional violence.

    nk (f58916)

  34. Yi-Ling, re your comment #30.

    There is a point to be made that applying stare decisis to interpretations of the Constitution or statutes is a hybrid between common-law and civil law. But it is what we have since, at least, Marbury v. Madison. Our laws mean only what the highest court of our jurisdiction says they mean.

    nk (f58916)

  35. “Youre completely missing the point. To Janet Randolph, they most certainly were wanted.”

    Not at all, I agree Janet wanted them to come in.

    “The point is that whether you enter a house or not depends on the circumstances you wont *always* go away just because *one* of the occupants doesnt want you there.”

    Totally agree…you’re missing the point! The circumstances between an unwanted guest and an unwanted police search are night and day.

    [You act as though Roberts made the analogy first. He didn’t. He was responding to the majority’s analogy. — P]

    wtf (1b6046)

  36. “Will you give us liberals 24 hours running time? In the name of being a good sport and all?”

    Ok, Go.

    C Student (59bfb8)

  37. nk, yes I know that the Fourth Amendment only restrains the government and not private actors. But still, the court has to determine what government action is “reasonable.” That doesn’t mean subjectively reasonable in the personal opinion of the judges. It refers to what is generally considered unreasonable by the American people. And what better way to gauge what the American people think than to look at how their elected representatives have treated the exact same type of action by private investigators?

    I’m not saying the Court should look at what foreign countries have done on this question. I’m saying that they should look at what our own country has done. If 50 states allow private detectives to enter over the objection of one co-tenant, then that seems significant,a nd perhaps even decisive evidence of what is “reaonsable” under the Fourth Amendment.

    In determining what is “cruel and unusual,” the Court has looked to what the various states have done. I don’t see why the Court didn’t do so in this Fourth Amendment case too.

    Anyway, the partition is available to many co-tenants, and for other co-tenants divorce is an option. The Court’s Randolph decision just seem silly to me. If a wife is allowing the police (or a private eye) into the house to search for contraband, it should obviously be presumed that the husband objects. And yet, the Court says the husband must be there in person at the front door objecting. If he’s at the Dairy Queen getting some ice cream, then the Court says the police can enter. It’s just silly. And unreasonable.

    Andrew (08ba2c)

  38. Patterico writes: “You’re completely missing the point. To Janet Randolph, they most certainly were wanted.”

    So in a Stalinist state, you’d approve of the loyal party apparatchik inviting the KGB in to ransack her spouse’s property in search of illegal documents espousing Democracy?

    She wants the KGB to do away with the disloyal counterrevolutionary, after all, so it must be okay?

    Jon H (2dc44e)

  39. “And what better way to gauge what the American people think than to look at how their elected representatives have treated the exact same type of action by private investigators?”

    Because private investigators don’t have the massive weight of the State on their side.

    This is a conservative site, is it not? Are you supposed to be in favor of keeping the jack-booted thugs of the state out of your lives?

    Jon H (2dc44e)

  40. The point I find essential is that the Randolph’s were “estranged”. The wife had moved out and gone to stay with her parents – this may have either been a temporary or permanent thing. At that point the LAT story gets a little hazy. She returned to the house and called the police on her husband, informing them that he was a drug user and had drugs in the house, and inviting the police to search.

    In this instance, I think the whole “co-tenant” thing has to get tossed. My reading of the LAT article is that the wife was arguably no longer in residence at the time she called the police. Hence, no right to invite.

    I also have to agree that the police should have acted differently than they did. By the time they had the confrontation with the husband, this bust was sour. They would have done better to go for a warrant from the start.

    Dave in W-S (2a57fc)

  41. Patterico writes: “Nobody disputes that your roommate can give valid consent for your house to be searched if you’re not there and don’t object. You can’t *ever* consent to sex for domeone else. So your analogy is inapposite, if not outright silly”

    Not that silly. You’re acting like the cops would just eyeball the place from the threshold. But a warrantless search can mean the person’s home being ransacked, papers and files opened, journals read.

    How, exactly, would you feel if you had to sit and watch some police tear all your shit apart based on some trumped-up charge from a disgruntled roommate or spouse?

    Jon H (2dc44e)

  42. “If a wife is allowing the police (or a private eye) into the house to search for contraband, it should obviously be presumed that the husband objects. And yet, the Court says the husband must be there in person at the front door objecting. If he’s at the Dairy Queen getting some ice cream, then the Court says the police can enter. It’s just silly. And unreasonable.”

    I agree. The wife has no right to consent to the invasion of the husband’s privacy and the husband’s presence or absence is irrelevant. It is a betrayal of the marital relationship and the trust society expects each spouse to have in the other. A little bit reminiscent of Stalinist Russia, as well. Have we now staked out our respective positions?

    nk (b57bfb)

  43. How, exactly, would you feel if you had to sit and watch some police tear all your shit apart based on some trumped-up charge from a disgruntled roommate or spouse?

    That skews the question by saying the charge is trumped-up. Police could get a *warrant* with trumped-up information. Trumped-up charges are wrong — but that’s not what is at issue in this case. In this case, the information wasn’t trumped up; contraband was found.

    You’re skewing the question with the “trumped-up” language, and the fact that you feel the need to do so suggests that you feel your position would be weak without it.

    Ask the question a more reasonable way.

    Patterico (de0616)

  44. Jon (#39), private investigators certainly do have the massive weight of the State on their side. Suppose Mrs. Randolph cvalled Jim Rockford instead of calling the cops. Rockford comes over, does the search, finds the drugs, and what do he and Mrs. Randolph do with the drugs? Consume them? No, they call in the massive wieght of the state.

    All I’m saying is that it’s might peculiar that the Supreme Court didn’t consider whether a private eye could have lawfully done exactly what the police did in this case. Maybe a private eye couldn’t have, and that would be a very strong argument on Souter’s side.

    Anyway, regarding the “jack-booted thugs of the state,” maybe there are one or two government officials in the USA who aren’t jack-booted thugs? Just a thought.

    Andrew (08ba2c)

  45. I agree. The wife has no right to consent to the invasion of the husband’s privacy and the husband’s presence or absence is irrelevant. It is a betrayal of the marital relationship and the trust society expects each spouse to have in the other. A little bit reminiscent of Stalinist Russia, as well. Have we now staked out our respective positions?

    It’s not what the Supreme Court says. All the police have to do is wait for the husband to leave and the wife can consent, even under this opinion. The opinion simply creates the need for more gamesmanship.

    Patterico (de0616)

  46. The point I find essential is that the Randolph’s were “estranged”. The wife had moved out and gone to stay with her parents – this may have either been a temporary or permanent thing. At that point the LAT story gets a little hazy. She returned to the house and called the police on her husband, informing them that he was a drug user and had drugs in the house, and inviting the police to search.

    In this instance, I think the whole “co-tenant” thing has to get tossed. My reading of the LAT article is that the wife was arguably no longer in residence at the time she called the police. Hence, no right to invite.

    I also have to agree that the police should have acted differently than they did. By the time they had the confrontation with the husband, this bust was sour. They would have done better to go for a warrant from the start.

    You’re a cop. Now you’re going to interview each spouse to find out how their marriage is going, and if it’s on the rocks and they’ve only been in the house a few days, you’re going to reject consent???

    Where is there a workable rule in that?

    Patterico (de0616)

  47. As I understand it, nk disagrees with SCOTUS, and nk thinks that police should never be able to make a warrantless search unless ALL occupants consent. If all occupants are not available to consent, then no police search should be allowed.

    If that’s nk’s position, then I guess Mrs. Randolph could have called up a PI, who would have found the drugs and called in the cops. So it’s still gamesmanship.

    Andrew (08ba2c)

  48. #47. Andrew.

    “As I understand it, nk disagrees with SCOTUS, and nk thinks that police should never be able to make a warrantless search unless ALL occupants consent. If all occupants are not available to consent, then no police search should be allowed.”

    No. The Fourth Amendment protects persons not places. (Katz v. U.S.) “Occupants” has nothing to do with it. Expectation of privacy is the standard and faith and trust in a spouse should be too. This must be the fourth time I said this in this thread.

    nk (947b03)

  49. nk, if the occupants are husband and wife, then I udnerstand you to be saying that police should never be able to make a warrantless search unless ALL occupants consent. If all occupants are not available to consent, then no police search should be allowed. That seems to be what you’ve said, if the occupants are husband and wife.

    But if the wife hires a PI, couldn’t the PI do the search, and call the police if the search turns up contraband? Why not just let the police do the search i the first place?

    Andrew (08ba2c)

  50. There is a point to be made that applying stare decisis to interpretations of the Constitution or statutes is a hybrid between common-law and civil law. But it is what we have since, at least, Marbury v. Madison. Our laws mean only what the highest court of our jurisdiction says they mean.

    If we explore Koons thoughts as we can see in his outline http://www.utexas.edu/courses/phl347/lectures/lec19.html
    Lecture 20: Principles of Constitutional Interpretation & Lecture 18: Constitutional Interpretation, The Mysteries of the Constitution http://www.utexas.edu/courses/phl347/lectures/lec18.html , then there are some points I would raise .

    The 1st point is in Koons’ Lecture 18 outline where he highlights the historical development of American legal system, the convergence of two great legal western traditions : common law and civil law.
    • From Great Britain, we inherited the common-law tradition, which continues to govern torts and contracts in 49 states.
    • From Continental Europe (and Rome), we inherited the civil (statutory) tradition.

    The Common Law
    • Common law is judge-created.
    • The principle of stare decisis is central: respect for precedents.
    • Sharp distinction between what the law is (the underlying principle) and the words of past opinions, decisions.
    • Dominated legal training in U.S. since Harvard adopted the ³case method².

    The Civil Law Tradition
    • Dates back to ancient Rome, especially the Code of Justinian.
    • Revived during the Enlightenment: the codification and rationalization of the law.
    • Clearest expression: Napoleonic code.
    • Moved the Founders to adopt a ³written constitution².

    Principles of Civil Law Interpretation
    • Focus remains on the text of the statute, not on past decisions.
    • No role for stare decisis.
    • Emphasis on grammar, linguistic structure, overall context.
    • Jurists interpret the code teleologically: discerning the organic purpose of the code as a whole.

    The 2nd point is he [Koons] draws to our attention that, if we borrow from the common law tradition, it was a tradition without a written constitution.

    Written vs. Unwritten Constitutions
    • In Great Britain, the common law tradition coexists with an unwritten constitution.
    • In continental Europe (e.g. Germany), we have written constitution and civil law tradition.
    • Only in the U.S. do we combine common law with written constitution.

    The third point: Thus the use of the common law case approach was one way, and that it has solidified through the years , does not mean, that, it cannot be relooked at. Example from another area. If we look at evolution and origin of life, the scientist usually see it as a science. The philosopher of science Karl Popper sees evolution as a science as well as a metaphysical research program. The Harvard paleontologist Gould [dsd] could refer to Popper without taking Popper’s reference to the aspect of the metaphysical program of law. Maybe Koon is able to step outside the box like Popper, and draw out the elements of common law and civil law, and since Koons did not go through the grueling approach of common law case law approach, it is easier for him to ask questions that attorneys would consider sacrosanct. Koons did not go through the sacred case law approach.

    That aside, is there any future value in re-examining the early days base, which base has been used and build up upon, without further query. I do not know, but if one cares, one would , check the models, and see , if the model adopted then, could have other alternatives, and whether the alternatives can be in yonder future years worked into the system, to improve on the system.

    The recent Da Vinci Code that sold 4 million copies worldwide, is creating a stir in some quarters and when my husband and I [ neither of us have read it ] had discussion on it, and based on other’s reviews of it, it sparked us looking at questions like [1] when did the gospels become canonized and thus Gnostic gospels was excluded from the canonization process. [2] was it at the time of the Council of Nicea 325AD when the divinity of Jesus Christ was established , knocking of the competing view on the nature of humanity of Jesus Christ. We take for granted or assume , the gospels are THE only gospels and the findings in the cave in 1945 of some Gnostic gospels, begs scholarship to review how Christianity is or can be, if they incorporate the Gnostic gospels, though most Churches would reject the Gnostic gospels I think.

    Anyway my point is that, a system [ in this case, Christianity built on the four canonizes gospels] can be re-examined, and the rest is up to us…..
    Well coming back to Koons, is it of significance if this approach is used “Jurists interpret the code teleologically: discerning the organic purpose of the code as a whole. Would it meet your concern of “To explicate my comment, child-knapping, cocaine inhaling people create precedents for the police being able to invade my home.” By that, jurisprudence can develop without reliance so much on the instant case facts but as a whole, with the principle applied to the instant case? You could think of more innovations…. Just a thought !

    Yi-Ling (3e624e)

  51. Folks: see my P.S. to the post. If you actually read the opinions, you will see that the *majority*, not Roberts, made the analogy between police and visitors to a residence. Roberts was simply responding by criticizing the logic — and he did it quite well.

    Those of you who criticize him for making the analogy are bolstering his point, and you don’t even realize it.

    Patterico (de0616)

  52. Anyway, regarding the “jack-booted thugs of the state,” maybe there are one or two government officials in the USA who aren’t jack-booted thugs? Just a thought.

    Of course there are, but there are also government abuses, and the constitution was written to preserve our rights against abuse by those very “jack-booted thugs” that were agents of the then King of England. We don’t need constitutional protection against benign government. If government didn’t behave maliciously at times we wouldn’t need those protections at all.

    In other words, this is specifically about jack-booted thugs, and our rights and protections against them as citizens.

    This, to my non-lawyer mind, strikes me as just as strange an argument as the private investigator riff. As far as I understand the constitution doesn’t address the issue of spouses allowing PI’s, or exterminators or painters or carpet cleaners in a home. They aren’t agents of the state. Police are.

    If the police can enter and search your home over your direct objection without warrant or probable cause – which seems to be the position that some people in this thread are taking – we might just as well delete the 4th amendment. That seems to me to bear a very strong resemblance to the King’s men breaking down doors in the middle of the night.

    The state can live without searching homes over the direct objection of an occupant and without a warrant or probable cause. It isn’t necessary or desireable. The police can go get a warrant. It isn’t like taking that step is all that difficult.

    Dwilkers (a1687a)

  53. “You’re a cop. Now you’re going to interview each spouse to find out how their marriage is going, and if it’s on the rocks and they’ve only been in the house a few days, you’re going to reject consent???”

    I’m neither a cop nor a lawyer. Nor am I a journalist, but I can tell that there is a lot missing from the LAT story.

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

    I can’t imagine the police responding to a simple, “My husband uses cocaine.” without asking questions to determine, at the very least, if 1) there are drugs in the house, 2) how much drug is in the house, 3) is the husband home, 4) how long he will be gone.

    “The Georgia courts suppressed the evidence because Scott Randolph had not consented to the search. The state judges noted that the police could have used information from the wife to obtain a search warrant from a magistrate.”

    Seems reasonable to me. What prevented asking for a warrant? Was there really a flight danger here? We’re not talking the French Connection here, just a personal stash. No big deal even if they missed the bust.

    To me it looks like sloppy police procedures. I also find it bizarre that this case got pushed to the SCOTUS. It looks like a lousy case for the government to try to set precedent on.

    Dave in W-S (2a57fc)

  54. I read through quickly but did not see a distinction between what was open and visible and what was concealed.

    It seems to me Roberts is correct in the case of drugs and paraphenalia in the open.

    If the spouse OK’s an inspection of drawers and closets, I get a little squeemish.

    Lonetown (a3c6a2)

  55. Roberts’ dissent was well-written and exploited the main weakness of the majority – that it meandered into the police-guest analogy in the first place. But it was academic, since the outcome was the right one.

    The point of consent-to-search-of-one’s-home has always been the individual’s right to be refuse. Nothing has previously suggested that this right can be diminished by another tenant’s consent.

    To wit, the right is not the right to consent, but the right to refuse. The consenting tenant is not exercizing a right, but waiving it. It does not make sense that she can waive it for others.

    For police to rely on the consent of one tenant when others are not present is the only reasonably workable rule in terms of police practices. But here, no such practicality consideration applies.

    biwah (f5ca22)

  56. Lonetown:

    I’m working from memory (read the opinions yesterday), but I think Roberts introduced a few issues that had more to do with plain view and safety exigencies – justifications in themselves for police entry into the home. These considerations should not provide any basis for watering down the baseline requirement of consent (to which the exigencies are separate exceptions).

    biwah (f5ca22)

  57. I am in the process of surveying our house and delieneating my and my wife’s respective zones of privacy so that I can file it with the county recorder to give constructive notice that we do not consent to searches. How does this sound for the upstairs bathroom:

    “… from the NE corner of the aforesaid Lot 162 75 feet due South then at an angle of 90 degrees vertically to an elevation of 462.4 feet above sea level then at an angle of 90 degrees horizontally due South again 14 feet then West 10 feet then due North 14 feet then due East 10 feet.”

    Do I need to include the ceiling elevations of the rooms as well?

    nk (947b03)

  58. nk, depending on where you keep your stash, ceiling height could be essential.

    biwah (f5ca22)

  59. If the police can enter and search your home over your direct objection without warrant or probable cause – which seems to be the position that some people in this thread are taking – we might just as well delete the 4th amendment. That seems to me to bear a very strong resemblance to the King’s men breaking down doors in the middle of the night.

    Dwilkers, that’s not quite the position I’m taking. What I’m saying is that, IF a private investigator can lawfully enter and search your home over your direct objection without warrant or probable cause (e.g. based upon an invitation from your spouse), and can then call in the cops when contraband is found, THEN it seems entirely reasonable to suppose that a police detective could do the same thing.

    I’m not an expert on what private investigators are allowed to do under state trespass law, but it seems to me that if 50 states allow private investigators to do what I’ve described, then that’s a pretty good indicator of what the American people view as “reasonable.” Moreover, if private investigators can do what I’ve described, then you’re basically saying that rich women who can afford PI’s can get the law enforced but poor women who can’t afford PI’s are out of luck.

    Women in this country are often at a disadvantage relative to their husbands. Many women would want illegal activity by their husbands to be stopped, especially if there are children in the household. I’m not sure it helps women to refuse them any assistance when they confront their husbands.

    Andrew (08ba2c)

  60. It’s always a good idea to read the opinion before you opine.

    Mr. P., I’m not a lawyer, and certainly not a constitutional scholar. Slogging through that stuff is tough going for a layman. I was having a hard time figuring out who was on which side at first. So, forgive me if this is, er, un-nuanced, but it still seems to me to be a simple case of two competing interests, and that we should always come down on the side of the person wishing to assert a constitutional right.

    As someone else pointed out, if the cops have probable cause, they can enter. Just because one person waives his rights, that doesn’t mean the other person has to. If that’s simplistic, or I’m missing something, please tell me.

    CraigC (4525c5)

  61. Interesting just how novel this issue is. Matlock, which the Chief cited up front, is the closest the Court has come to establishing that one person may give consent on another’s behalf to search a space to which both parties have legitimate access. But Matlock acknowledged that the rule had become the norm, and moved on. Thus, no rationale has ever explicitly been given (by SCOTUS) for this rule, so we don’t have an exact principle to apply here. But, IMO, we don’t need one.

    Our zone of privacy is determined by our subjective expectations, subject to the requirement that those subjective expectations are also reasonable. Andrew argues that if a person can legally enter a certain space of yours through another’s consent, then that person becomes an acceptable conduit for police to search that same space. But who bases their expectations of privacy in their home on the boundaries of criminal trespass?

    Who, in fact, expects that their express refusal to admit someone to their home will be overridden by another person with whom they choose to live? Not the typical adult with any sense and/or any expectation of privacy. We should be glad that the court didn’t follow the Chief and hold that “people don’t actually expect that their express will means anything – and if they do, they’re just plain unreasonable!”

    The reasonable expectation of privacy is defined, in practice, by courts looking back and saying, would this have been an area reasonably expected to be private by the defendant? To tack on the requirement that his expectation must anticipate that his space would be entered against his express wishes (or else be deemed unreasonable and thus ignored) is pure back door legal shenanigans. The REOP is meant to guide the application of the 4th A., not a trojan horse to do away with the notion of privacy anywhere outside of a one-man bomb shelter in the woods. It is unreasonable to infer that people expect to be walked over by intrusions against their express wishes.

    Of course, if the State has actual evidence that a particular defendant had reason to know that third parties were coming in, or would come in, over his express refusal to admit them, then that could build the case for rendering his refusal moot, to wit: “he knew that his refusal didn’t mean anything, since his wife admitted people against his express objection on these specific occasions.” But the default, under any reasonable biew of human nature, must be to expect that one’s refusal actually means something.

    The Chief’s view turns a corner on where “reasonable expectation of privacy” bears any connection to objective reality. It says, “It’s in your home, it’s against your express will, and it’s in violation of your subjective expectation of privacy – but that expectation is unreasonable, so we’ll just search anyway.” This is pure anathema to the Fourth Amendment! Again, there are very few hard-line rules on 4th A. issues, and this should not be one – just a common-sense presumption in favor of (a) the individual and (b) reality.

    biwah (f5ca22)

  62. a common-sense presumption in favor of (a) the individual and (b) reality.”

    Actually, one of two individuals.

    Andrew (08ba2c)

  63. Andrew,

    No, the presumption is not in favor of the individual over his spouse, co-tenant, etc. It is in favor of the individual (via his explicitly expressed volition) over the government (via its post-hoc inference of the irrelevance of that volition).

    biwah (f5ca22)

  64. Biwah, re your comment #58:

    Since under Georgia’s Rules of Evidence silence is an admission, I deny in the strongest possible terms the implication that I have a “stash”.

    nk (4cd0c2)

  65. Biwah, I think that when the state of Georgia passed a law against heroin in the household, it meant (among other things) to create an individual right of any member of the household to live in a household free of heroin. Whether a right is created by statute or is created by the Constitution doesn’t make it less of a right. Obviously, the Constitution controls when it conflicts with a statute, but let’s not pretend that the searched person is the only person with rights here.

    And I think it’s silly to suppose that a husband impliedly consents to a drug search of his house by virtue of the fact that he’s taking a nap instead of explicitly expressing his “volition.”

    Andrew (08ba2c)

  66. Andrew,

    it meant (among other things) to create an individual right of any member of the household to live in a household free of heroin.

    Disagree, plus it’s besides the point.

    let’s not pretend that the searched person is the only person with rights here.

    Now that’s just ridiculous.

    I think it’s silly to suppose that a husband impliedly consents to a drug search of his house by virtue of the fact that he’s taking a nap instead of explicitly expressing his “volition.”

    I’m not so sure it is about implied consent. As I pointed out, the SCOTUS has never given us the exact reasoning. But clearly to disallow vicarious consent in the absence of other rights-holders would be to intolerably shut down a wide range of police investigations. The Fourth Amendment is a balancing act. When the protected individual is sleeping or absent, permitting vicarious consent is worth the tradeoff. When the person is there, exercising his right to withold consent based on his own reasonable expectations of privacy in his home, to overrride his exercise of that right is a travesty.

    biwah (f5ca22)

  67. nk, so you admit that you sold it?

    biwah (f5ca22)

  68. Anyone interested in exploring these issues in greater depth may be interested in reading the Solicitor General’s amicus brief in this case.

    According to the SG, a “general principle of property law is that one cotenant has no right to exclude another cotenant from the premises, or to prevent the other cotenant from leasing the latter’s rights in the property to a third party.” So, a cotenant can lease her rights to a private investigator whenever she wants to.

    Under the common law of trespass, “[i]t is ordinarily held that a tenant in common may properly license a third person to make an entry on the common property, and the licensee, in making an entry in the exercise of his or her license, is not liable in trespass to nonconsenting cotenants.” 86 C.J.S. Tenancy in Common § 135 (1997); see Buchanan v. Jencks, 96 A. 307, 309, 310-311 (R.I. 1916) (“[I]t would seem unreasonable to say that a cotenant could not authorize another to go upon the common land and do anything that he might do himself.”); Granger v. Postal Tel. Co., 50 S.E. 193 (S.C. 1905); Harris v. City of Ansonia, 47 A. 672, 673 (Conn. 1900); Lee Chuck v. Quan Wo Chong, 28 P. 45 (Cal. 1891); see also Dinsmore v. Renfroe, 225 P. 886 (Cal. Ct. App. 1924); Causee v. Anders, 20 N.C. 388 (1839) (affirming that tenant in common has right to enter property and take with him a guest). But see Moore v. Moore, 34 P. 90, 92 (Cal. 1893). In fact, “a cotenant who ejects a third person entering under such license is liable to him in trespass.” 86 C.J.S., supra, § 135.

    Some in this thread seem to have the attitude that a wife can only invite private investigators into her house if the husband consents (either explicitly or vicariously). I don’t agree that spouses should be able to exercise such control over each other, nor does the law support that view.

    The prevalent view of the American people about reasonableness should be what counts.

    Andrew (08ba2c)

  69. Andrew,

    You seem determined to miss the point.

    First, the Fourth Amendment does not find its standards of reasonableness in property law or the law of trespass. Courts have, many times, rejected the equivalence in addressing various issues. BTW, the only cite that conceptually even approaches the question of a tenant excluding a cotenant’s licensee is the last one – the one that doesn’t cite any case.

    And also BTW, the amicus’ reliance on century-old common-law decisions of scant-at-best relevance to the issue at hand? That’s a hint that they don’t have anything better.

    Second,

    Some in this thread seem to have the attitude that a wife can only invite private investigators into her house if the husband consents (either explicitly or vicariously).

    This is a mischaracterization of what I have written above – or maybe an accurate rendition of something someone else has said. Either way, the fact that you pose what the wife “can” do as the issue at all is evidence that you are barking up the wrong tree.

    The Fourth Amendment is not about regulating the behavior of private citizens. It is not about what people can and can’t do (other than the gov’t w/ respect to search and seizure). It is not about the right to have a drug-free house. It is, to name the pivotal issue here, about what expectations society is prepared to accept as reasonable. I’m not saying my argument blows CJ Roberts’ position out of the water. Such clarity rarely arises in a REOP question. But it is more in line with mainstream expectations of privacy vis a vis the perceived strength of one’s own withholding of consent – and that’s why it’s right.

    biwah (d9507a)

  70. Biwah, I gather you agree that a wife can invite private detectives into her house even if the husband refuses to consent. My apologies if I previously mischaracterized your position.

    So, the private detective can enter, search, find, and summon the police. Right? I think it’s unreasonable to say that a police detective cannot do the same thing. Rich women will hire detectives, and poor women will be trapped with their children in lawless households. That’s reasonable?

    Andrew (4d9bb8)

  71. I gather you agree that a wife can invite private detectives into her house even if the husband refuses to consent.

    Not necessarily. If your final C.J.S. cite is the law of the land, it would appear so, but that’s hardly been established. I am somewhat interested to know the answer.

    But it’s academic, since, at the risk of being repetitive, it’s not about the legality of what the PI, or the wife, can do. Criminal statutes, e.g. trespass, govern that conduct. You change your language in the last post to say “it’s unreasonable to say that a police detective cannot do the same thing”, where before you were talking about straight legality. But changing “legal” to “reasonable” doesn’t correct it. The “reasonableness” you’ve attempted to reframe is actually about two things, and two things only: the expectation of the individual, and whether that expectation is within the range of societal norms, i.e. reasonable. Neither you nor a court can just ignore that.

    biwah (949dad)

  72. Hey, just noticed that one of the cites I cited from the SG brief is Harris v. City of Ansonia. That’s where I live: Ansonia, CT. Small world.

    Andrew (41fcd6)

  73. Roberts makes a point that is not only theoretical but is the case in practice, as one who, in the past, shared quarters, can attest..

    There are inevitably common areas and private areas, and in the case of one granting permission and another refusing, the common areas are thusly open, the private areas that were not granted permission to be searched therefore are not. The flip side of this is that being a common area, contraband found in a common area is not attributable to a particular individual absent some other conclusive evidence of possession, a legal fact that I confess I and my roommates exploited (details are not, um… necessary).

    -Steeley

    Steeley (ff141d)

  74. So, forgive me if this is, er, un-nuanced, but it still seems to me to be a simple case of two competing interests, and that we should always come down on the side of the person wishing to assert a constitutional right.

    That would be insane. If we did that, the mere assertion of a constitutional right, however frivolous, would be a get out of jail free card for every defendant who cares to assert it.

    As someone else pointed out, if the cops have probable cause, they can enter. Just because one person waives his rights, that doesn’t mean the other person has to. If that’s simplistic, or I’m missing something, please tell me.

    What you’re missing is that no one generally has a right to be free from searches and seizures, only from unreasonable ones. If the cops have probable cause, that’s one reason they can enter without your consent. If someone else with control over the facility has allowed them in, that’s another – or at least it was, until now. Actually, if I gather correctly it is even now, unless you have affirmatively objected.

    Xrlq (413265)

  75. I’ve blogged on Georgia v. Randolph, in connection with its seeming holding that one of two concurrent owners of a house can block entry by police against the desire of the other owner, while under property law generally he cannot block entry by anybody else in the world that the other owner wants to let in (in fact, the other owner can even lease out the common premises to some obnoxious third party and keep the rent money, so long as the first owner can still use the property too). My blog’s point is that this shows the amazing, self-satisfied, ignorance of all 8 of the Supreme Court justices (9 if we count O’Connor) on the subject of property law. Does anyone have any thoughts on that point? (as opposed to the broader point of whether Georgia v. Randolph was rightly decided) Or any good cases on use rights of cotenants?

    See http://www.rasmusen.org/x/2006/03/25/georgia-v-randolph- property-law-and-con-law

    Eric Rasmusen (161b81)

  76. […] And this is hardly the first time that these three have joined forces. […]

    Patterico’s Pontifications » Coulter: Wrong About John Roberts (421107)


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