Today's Supreme Court Decision in Georgia v. Randolph

An interesting Supreme Court decision today in Georgia v. Randolph. Justice Souter, writing for the liberals as well as Justice Kennedy, held that if a man's wife consents to have their home searched by the police but he himself refuses, the police cannot perform a warrantless search based solely on the wife's permission. (The holding wasn't specific to husbands and wives; that's just how it arose in this particular case.)

Souter's opinion points out:

The constant element in assessing Fourth Amendment reasonableness in the consent cases, then, is the great significance given to widely shared social expectations, which are naturally enough influenced by the law of property, but not controlled by its rules.

Souter then claims that --as a general matter -- no one would enter a house if one of the inhabitants wanted to allow entry and the other didn't:

To begin with, it is fair to say that a caller standing at the door of shared premises would have no confidence that one occupant’s invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, “stay out.” Without some very good reason, no sensible person would go inside under those conditions.

To say the least, this is a very dubious assertion on Souter's part. How does he know what "no sensible person" would do in such a hypothetical situation?

Chief Justice Roberts had an excellent dissent, which was joined by Justice Scalia (but not Justice Thomas). In a well-written flair that already seems typical, Robers handily points out that Souter's reasoning is unsupported and unsupportable:

Today’s opinion creates an exception to this otherwise clear rule: A third-party consent search is unreasonable, and therefore constitutionally impermissible, if the co-occupant against whom evidence is obtained was present and objected to the entry and search.

This exception is based on what the majority describes as “widely shared social expectations” that “when people living together disagree over the use of their common quarters, a resolution must come through voluntary accommodation.” Ante, at 6, 9. But this fundamental predicate to the majority’s analysis gets us nowhere: Does the objecting cotenant accede to the consenting cotenant’s wishes, or the other way around? The majority’s assumption about voluntary accommodation simply leads to the common stalemate of two gentlemen insisting that the other enter a room first.

Nevertheless, the majority is confident in assuming — confident enough to incorporate its assumption into the Constitution — that an invited social guest who arrives at the door of a shared residence, and is greeted by a disagreeable co-occupant shouting “ ‘stay out,’ ” would simply go away. Ante, at 8. 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.

Finally, Roberts points out that in domestic violence cases -- in particular -- it is often important that one party be able to consent to a search over the other party's objection:

While the majority’s rule protects something random, its consequences are particularly severe. The question presented often arises when innocent cotenants seek to disassociate or protect themselves from ongoing criminal activity. See, e.g., United States v. Hendrix, 595 F. 2d 883, 884 (CADC 1979) (wife asked police “to get her baby and take [a] sawed-off shotgun out of her house”); People v. Cosme, 48 N. Y. 2d 286, 288–289, 293, 397 N. E. 2d 1319, 1320, 1323 (1979) (woman asked police to remove cocaine and a gun from a shared closet); United States v. Botsch, 364 F. 2d 542, 547 (CA2 1966). Under the majority’s rule, there will be many cases in which a consenting co-occupant’s wish to have the police enter is overridden by an objection from another present co-occupant.

What does the majority imagine will happen, in a case in which the consenting co-occupant is concerned about the other’s criminal activity, once the door clicks shut? The objecting co-occupant may pause briefly to decide whether to destroy any evidence of wrongdoing or to inflict retribution on the consenting co-occupant first, but there can be little doubt that he will attend to both in short order. It is no answer to say that the consenting co-occupant can depart with the police; remember that it is her home, too, and the other co-occupant’s very presence, which allowed him to object, may also prevent the consenting co-occupant from doing more than urging the police to enter.

Perhaps the most serious consequence of the majority’s rule is its operation in domestic abuse situations, a context in which the present question often arises. See Rodriguez, 497 U. S., at 179; United States v. Donlin, 982 F. 2d 31 (CA1 1992); Hendrix, supra; People v. Sanders, 904 P. 2d 1311 (Colo. 1995) (en banc); Brandon v. State, 778 P. 2d 221 (Alaska App. 1989). While people living together might typically be accommodating to the wishes of their cotenants, requests for police assistance may well come from coinhabitants who are having a disagreement. The Court concludes that because “no sensible person would go inside” in the face of disputed consent, ante, at 8–9, and the consenting cotenant thus has “no recognized authority” to insist on the guest’s admission, ante, at 10, a “police officer [has] no better claim to reasonableness in entering than the officer would have in the absence of any consent at all,” ibid. But the police officer’s superior claim to enter is obvious: Mrs. Randolph did not invite the police to join her for dessert and coffee; the officer’s precise purpose in knocking on the door was to assist with a dispute between the Randolphs — one in which Mrs. Randolph felt the need for the protective presence of the police. The majority’s rule apparently forbids police from entering to assist with a domestic dispute if the abuser whose behavior prompted the request for police assistance objects.

Remember, of course, that John Roberts is "insensitive on women's issues."