High Court Cuts Police Power to Search Homes

By Charles Lane
Washington Post Staff Writer
Thursday, March 23, 2006; A01

The Supreme Court narrowed police search powers yesterday, ruling that officers must have a warrant to look for evidence in a couple's home unless both partners present agree to let them in.

The 5 to 3 decision sparked a sharp exchange among the justices. The majority portrayed the decision as striking a blow for privacy rights and gender equality; dissenters said it could undermine police efforts against domestic violence, the victims of which are often women.

The ruling upholds a 2004 decision of the Georgia Supreme Court but still makes a significant change in the law nationwide, because most other lower federal and state courts had previously said that police could search with the consent of one of two adults living together.

Now, officers must first ask a judicial officer for a warrant in such cases. Quarrels between husbands and wives, or boyfriends and girlfriends, keep police busy around the country; in the District, almost half of the 39,000 violent crime calls officers answered in 2000 involved alleged domestic violence.

Justice David H. Souter's majority opinion said that the consent of one partner is not enough, because of "widely shared social expectations" that adults living together each have veto power over who can come into their shared living space. That makes a warrantless search based on only one partner's consent "unreasonable" and, therefore, unconstitutional.

"[T]here is no common understanding that one co-tenant generally has a right or authority to prevail over the express wishes of another, whether the issue is the color of the curtains or invitations to outsiders," Souter wrote.

Chief Justice John G. Roberts Jr., writing his first dissent since joining the court in October, said the ruling's "cost" would be "great," especially in domestic dispute situations.

Roberts wrote that the ruling made no sense, given that the court had previously said it is constitutional for police to enter a house with the permission of one partner when the other is asleep or absent. Those rulings were unchanged by yesterday's decision.

Just by agreeing to live with someone else, a co-tenant has surrendered a good deal of the privacy that the Constitution's Fourth Amendment was designed to protect, Roberts noted.

"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," he wrote.

But Souter called that argument a "red herring," saying that the police would still have legal authority to enter homes where one partner was truly in danger.

"[T]his case has no bearing on the capacity of the police to protect domestic victims," Souter wrote. "No question has been raised, or reasonably could be, about the authority of the police to enter a dwelling to protect a resident from domestic violence; so long as they have good reason to believe such a threat exists."

Souter said Roberts was guilty of declaring that "the centuries of special protection for the privacy of the home are over."

Souter's opinion was joined by Justices John Paul Stevens, Anthony M. Kennedy, Ruth Bader Ginsburg and Stephen G. Breyer.

Breyer backed Souter with a separate opinion noting that his decisive fifth vote was cast on the understanding that Souter's analysis applies to cases such as this one, Georgia v. Randolph , No. 04-1607, in which the police were searching for evidence of a crime, rather than intervening in a violent dispute.

"[T]oday's decision will not adversely affect ordinary law enforcement practices," Breyer wrote.

The case arose out of a 2001 quarrel over child custody at the home of Janet and Scott Randolph in Americus, Ga.

When officers arrived, she told them where they could find his cocaine. An officer asked Scott Randolph for permission to search the house. He refused, but Janet Randolph said yes -- and led them to a straw covered in cocaine crystals. Scott Randolph was arrested and indicted for cocaine possession.

Georgia's Supreme Court ultimately ruled that the evidence should be suppressed because it was gathered without a warrant.

Justices Antonin Scalia and Clarence Thomas also dissented. Justice Samuel A. Alito Jr. did not vote because he was not yet on the court in November, when the case was argued.

The main battle between Souter and Roberts was accompanied by a skirmish between Stevens and Scalia, who used the case as an opportunity to make points in the court's long-running dispute over Scalia's view that the Constitution should be interpreted in light of the Framers' original intent.

In a brief concurring opinion, Stevens noted that the court's ruling was based on the concept that neither a husband nor a wife is "master" of the house in the eyes of the law. But at the time the Bill of Rights was drafted, he wrote, only a husband's consent or objection would have been taken into account.

Thus, he wrote, "this case illustrates why even the most dedicated adherent to an approach . . . that places primary reliance on a search for original understanding would recognize the relevance of changes in our society."

Scalia fired back at "Justice Stevens' 'attempted critique' of originalism,' " arguing that the court's ruling would probably not benefit women.

"Given the usual patterns of domestic violence," he noted, "how often can police be expected to encounter the situation in which a man urges them to enter the home while a woman simultaneously demands they stay out?"