A Rare Victory for Privacy and Common Sense

Why the Supreme Court got it right in Georgia v. Randolph

Steve Chapman | April 9, 2009

Editor's Note: Steve Chapman is on vacation. The following column was originally published in March 2006.

In 2006, the Supreme Court did something surprising. It said that if a man stands at the threshold of his own house and tells the police they may not enter without a warrant, then—get a load of this, will ya?—they may not enter without a warrant.

That might not sound very remarkable. After all, most of us are familiar with the axiom that a man's home is his castle, and the Constitution does have that passage assuring the right of all Americans "to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures."

But in recent years, the court has had a simple rule in disputes between citizens and police on the legality of a search: Go with the cops. It's out of character for the justices to rule that a person's privacy may impede law enforcement, as they did here.

The case arose after a Georgia woman, Janet Randolph, called police to say her husband had absconded with their son. When officers arrived, she told them he was also a cocaine user. About that time, Scott Randolph showed up, said he had taken the boy for fear she would spirit him out of the country, and denied using drugs.

One of the police, who had no search warrant, asked the husband if he could search the house. He said no. So the officer asked the wife, who obliged.

The cop went in and found a straw coated with a powdery substance. When Scott was indicted for cocaine possession, he argued that the search was invalid because he had refused consent.

The trial court rejected the claim because, it said, his wife had authority to admit police to their joint residence. But the Supreme Court took a different view: While she could have let them in when her husband was absent, he was present, and therefore had the right to bar their entry. Only if there was an emergency, such as the threat of domestic violence, could the cops enter over his objection.

That conclusion rests on common sense. "It is fair to say," wrote Justice David Souter, "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."

Chief Justice John Roberts disagreed, insisting that when two people live together, prevailing conventions allow either to have visitors over the objections of the other. Apparently he sees no limit to this principle. So when representatives of The Committee to Impeach John Roberts arrive at his house and his wife invites them in, he will consider himself powerless to keep them out.

But Roberts had reason to think his fellow justices would go along with him. They have provided the government lots of ways to get around that pesky Fourth Amendment. One is to say, as the chief justice did here, that in many situations, the government may conduct a search because a citizen has no "reasonable expectation of privacy."

You may think your bank or video store records are confidential, but the court has said that once you share information with a third party, it's no longer private. So a prosecutor embarked on a grand jury investigation can inspect them, without bothering to get a search warrant from a judge based on evidence that you've committed a crime.

The Constitution generally bars searches without a warrant, which requires a showing of "probable cause," but the rule doesn't apply if the target of the search consents to it. So the court has ingeniously stretched the meaning of "consent."

The average person, confronted with cops asking if they can search her house or car, would not realize she has a right to decline. Most people "consent" because they figure they have no choice. And the court has said that the police are under no obligation to let them know otherwise.

Still, there are limits to how far the court can go in placing the convenience of law enforcement over the language of the Constitution. It can pretend people have no expectation of privacy even when they do, and it can pretend that people routinely agree to things they have every reason to reject. But when a man stands in his doorway telling the police they may not come in, the court has to acknowledge that a citizen's right to say "no" still means something.

COPYRIGHT 2009 CREATORS SYNDICATE, INC.

Comments

|4.9.09 @ 7:01AM|#

raivo pommer-www.google.ee
[e-mail]

NORDBANK-drei million euro

Demnach hatte die Bank im Vorgriff auf die ursprünglich geplanten Ausschüttungen in Höhe von 64 und 200 Millionen Euro zum Zeitpunkt von Wiegards Angaben bereits gut acht Millionen ausgezahlt.

Der Minister habe sich auf Auskünfte der Bank verlassen müssen, weil es sich um rein operatives Geschäft handele, sagte der Sprecher. Das Ministerium überwache nicht den Zahlungsverkehr der Bank. Es habe sie nun aber aufgefordert, die Vorgänge zu erklären.

Die HSH Nordbank hatte im März angekündigt, aus EU-rechtlichen Gründen auf die Ausschüttung zu verzichten. Die ausgezahlten Summen würden daher zurückgefordert, heißt es in der Antwort auf die Kleine Anfrage des Hamburger Abgeordneten Stefan Schmitt (SPD).

Hamburg und Schleswig-Holstein helfen ihrer gemeinsamen Landesbank mit einer Kapitalspritze in Höhe von drei Milliarden Euro sowie Garantien über weitere zehn Milliarden Euro aus der Klemme. Die Parlamente beider Länder hatten dem Rettungsplan in der vergangenen Woche zugestimmt.

MNG|4.9.09 @ 7:52AM|#

And you know who dissented? Why those conservative lovers of small government and liberty Scalia, Thomas and Roberts, that's who! Those guys love them some police power! The guys that McCain said he'd be sure to appoint more judges similar to.

Let's hope Obama gets quite a few SCOTUS picks.

MNG|4.9.09 @ 7:53AM|#

Oh, and in reply to raivo pommer,
Mein Gott!

Alan Vanneman|4.9.09 @ 8:05AM|#

I was going to mention another rare case when the Supreme Court got it right--Brown v Board of Education--but that damn MNG used this retread to make a good point. Anyway, if you want a great deal on shares from the Landesbank de Schleswig-Holstein, call me. I'm their sole U.S. agent, and I guarantee returns of 7.37% a year, tax-free.

|4.9.09 @ 8:10AM|#

raivo the Raving Cherman blathering on about teutonic banking, in response to an article from 2006?! What's next, a funny friday cartoon?

MNG, save your outrage, we aren't conservatives, and won't defend them.

Seward|4.9.09 @ 8:20AM|#

MNG,

Why those conservative lovers of small government and liberty Scalia, Thomas and Roberts, that's who!

Are they really lovers of small government? For example, a lot of the commentary on Scalia argues that he is basically a majoritarian.

Anyway, I'd argue that from a libertarian or classical liberal perspective, all of the justices are a mixed bag.

High Every Body|4.9.09 @ 8:49AM|#

A bit of gun jumping on the thread I see.

Shredding the tradition of reading the article, I only had to go a little bit to find this fact:

One of the police, who had no search warrant, asked the husband if he could search the house. He said no. So the officer asked the wife, who obliged.

So, concent was given to the police by one of the residents. Souter argued that one declining search was enough to deny concent.

Chief Justice John Roberts disagreed, insisting that when two people live together, prevailing conventions allow either to have visitors over the objections of the other.

I side with Souter on this, but the situation certainly is not like the headlne suggests.

Guy Smiley|4.9.09 @ 8:49AM|#

"It is fair to say," wrote Justice David Souter, "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.' ..."

Thank God. I pray that this will start a trend of judges using that standard: would this person's behavior be legal if he were not a cop?

|4.9.09 @ 9:00AM|#

I wonder what a cop would do if, when asking to search a house, he was told "I'm sorry officer, but my duty as an American is to do whatever I can to confine the government to its constitutional limits. You will not enter this house without a warrant, and if your application for a warrant is not within the letter of the law, I will seek redress against you personally, as well as your entire chain of command."

-jcr

|4.9.09 @ 9:07AM|#

JCR, depends on the cop. Some will avoid the chance at being sued while others may just shoot you in the face because you "threatened them."

robc|4.9.09 @ 9:10AM|#

This seems a tricky issue to me.

Im thinking back to my days of living in a 2 bedroom apt. Could I have barred my roommate's friends from visiting? If there was some obnoxious/dangerous guy that I didnt want over, it would be polite of my roommate to not invite him over, but did I control legal power to absolutely ban him? I dont think so.

I could probably be persuaded the other way though. I would like to side with Souter et al on this, but I think Roberts got it right.

Obviously, using the 2 bedroom apt version above, my room couldnt be searched without my consent, but the common areas could be searched with just my roommate's consent. In this case, since they were married, everything was common area.

High Every Body|4.9.09 @ 9:12AM|#

robc,

Can side with Souter in th sense that it is a marriage partnership and concent requires both parties, just like it should be with sex.

robc|4.9.09 @ 9:15AM|#

MNG,

Scalia wrote the majority decision in Kyllo, banning infrared searches.

Stevens wrote the dissent - being the cop coddler that he is.

robc|4.9.09 @ 9:18AM|#

High,

This isnt like sex though. This is co-ownership of property, I dont see how it matters if it is marriage or a business partnership. Should write into the marriage contract that all decisions regarding warrantless searches require unanimous consent when both present, that if either opposes, both agree to oppose search.

Can any one owner of XOM stock prevent a warrantless search of Exxon HQ? Okay, maybe that is a good idea.

High Every Body|4.9.09 @ 9:23AM|#

This is co-ownership of property, I dont see how it matters if it is marriage or a business partnership.

If I were the joint owner of a car my partner could not sell it without my concent.

robc|4.9.09 @ 9:25AM|#

Hmmmm....the Exxon example makes me think that both sides were wrong in their decisions.

As a stock holder, I have limited liability, in return certain obligations are passed on to offices of the corporation. Thus, they would make the decision regarding whether or not to allow the search. In a marriage, if this isnt explicitly decided otherwise, tradition says the man overrules the woman.

So, in a case like this were they disagree, the cops should have taken the man's answer as the correct one. Thus, no search allowed, but not for the reason Souter gave.

Note: robc is not married for a reason.

robc|4.9.09 @ 9:27AM|#

If I were the joint owner of a car my partner could not sell it without my concent.

That depends on your ownership contract. By default, though, that is correct. However, I think your partner can drive it without your consent in the absence of an agreement otherwise.

rhofulster|4.9.09 @ 9:45AM|#

If the wife says there are drugs in the house, does that give the cops probable cause to search the house without a warrant?
Just askin'

robc|4.9.09 @ 10:18AM|#

rhofulster,

Nope. That gives them cause to get a warrant.

|4.9.09 @ 12:05PM|#

Well, unless the powder on the straw is thought to be weaponized anthrax or weapons-grade plutonium, it's absurd for the police to be investigating powders on straws. Having said that, I don't think it is at all obvious that, when property has more than one owner, that one owner's dissent can render insufficeint another owner's invitation for a party to enter the property.

The next time your insufferable visiting mother in law completely drives you over the edge, try calling the police or your local district attorney, and having the old battle axe prosecuted for trespassing. Even if your local DA is another son-in-law of the insufferable hag, and thus agrees to go forward with the effort to jail her, I suspect a judge would throw the case out once it was made clear your unfortunate choice for a spouse, as co-owner of the property, had invited the Wicked Witch of The West to sit at the breakfast table every morning, tattered housecoat, fuzzy slippers, hair in curlers, in all her terrible, awful, glory.

Some matters really are best headed off before marrigae ceremonies, and making sure your wife isn't the sort to invite the police onto your property probably falls into that category.

Paul|4.9.09 @ 1:02PM|#

and if your application for a warrant is not within the letter of the law, I will seek redress against you personally, as well as your entire chain of command."

According to live recordings of enforcement officials in similar situations, this would be "playing games" with the officer.

Paul|4.9.09 @ 1:04PM|#

Anyway, I'd argue that from a libertarian or classical liberal perspective, all of the justices are a mixed bag.

You can say that again.

Xeones|4.9.09 @ 1:21PM|#

Still and all, this seems like a good way to get your dog shot.

Some Guy|4.9.09 @ 1:48PM|#

I'm giving this one to the cops. One person living somewhere can't ban the other from allowing a people in.

the innominate one|4.9.09 @ 3:45PM|#

consenting to a police search =/= having visitors over, morans

|4.9.09 @ 3:55PM|#

When wishing to insult another person, by denigrating their intelligence, misspelling "morons" is a bit unfortunate, you slack-jawed, drooling, lackwit.

No, one property owner cannot automatically obviate another co-owner's rights, which includes the right to invite third parties onto the property. It is much more complicated than what this article presents, and this complicated matter is one reason why one should be exceedingly, exceedingly, careful about with whom one chooses to own property.

the innominate one|4.9.09 @ 4:29PM|#

That was an ironical misspelling, you slack-jawed, drooling lackwit who is also ignorant of a popular intertubes meme.

|4.9.09 @ 4:50PM|#

I plead guilty, slack-jawed, drooling, lackwit, to being ignorant of many intertubes memes. By the way, my use of invective was also meant to be an ironic (really, does adding an "al" mnake any sense?) response to the insipid use of invective in the intertubes.

|4.9.09 @ 5:02PM|#

And you know who dissented? Why those conservative lovers of small government and liberty Scalia, Thomas and Roberts, that's who!

Yet another post trying to claim that since conservatives aren't libertarians, then the liberals must be. How's that drug legalization working out for you?

|4.9.09 @ 5:19PM|#

"""If the wife says there are drugs in the house, does that give the cops probable cause to search the house without a warrant?"""

SCOTUS has upheld community posession, if that's what it's called. Eveyone in a house can be arrested for posession if they find pot in the house. So if the woman admits to pot being in her house, she is confessing to the officer that she is in posession. Why not arrest her for posession, then search the house, then arrest the guy when they found it.

Slimey yes, but the kind of slime that SCOTUS likes.

the innominate one|4.9.09 @ 7:06PM|#

Merriam-Webster's Collegiate Dictionary, 11th ed.

Main Entry:ironic
Variant:also ironical
Function:adjective
Date:1576


1 : relating to, containing, or constituting irony *an ironic remark* *an ironic coincidence*
2 : given to irony *an ironic sense of humor*
synonyms see SARCASTIC
-ironicalness noun

emphasis mine

No, one property owner cannot automatically obviate another co-owner's rights, which includes the right to invite third parties onto the property and which also includes "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized". It is much more complicated than what this article presents, and this complicated matter is one reason why one should be exceedingly, exceedingly, careful about with whom one chooses to own property.

fixed

One has the right to invite others over to one's property. One doesn't have the right nor the authority to abrogate another's constitutionally guaranteed rights, which is why I stated that a consent to a police search wasn't the same thing as having visitors over, you ignorant slut.

|4.10.09 @ 11:09AM|#

Yes, lackwit, the extra "al" is accecptable, which doesn't mean it isn't also stupid. Here's a clue; less typing to convey nearly the same word is a good thing.

Yes, I know you think it is a simple matter to say that it is unreasonable for an owner of a property to exercise his right as an owner, to invite parties onto the owner's property at the owner's discretion, to end criminal activity that the owner may not wish to take place on his property. This is due to your lackwitted nature.

A property owner has the right to control his property, up to an including inviting the state to search his proerty. When an owner has invited a search the search by definition becomes reasonable. To conclude otherwise is to unreasonably attack an owner's right to control his property.

Imagine you were stupid enough to own a condo with Jeffrey Dahmer (this really isn't a stretch), and it took you several months to discern that when ol' Jeffy was frying up stuff in the pan, it wasn't bacon. According to your theory, you couldn't invite a passing patrol car to observe your roommate serving up the specialty meats, but would rather have to ask the police to obtain a warrant, during which time the roomie would have destroyed the evidence in his gullet. This may make dinnertime at the condo a bit uncomfortable in the future. Perhaps, just maybe, an owner of a property has the right to end cannibalism on his property by inviting lawful authorities onto his property as quickly as possible.

I know that this is likely beyond your grasp, but one should endeavor to be optimistic.

Jon|4.10.09 @ 3:33PM|#

While I like the Court's holding here, once again, I find Chapman's legal analysis very elementary (e.g., Cal.'s Supreme Court screwed up because they were getting in the way of the majority's will, a criticism, which presumably doesn't apply to SCOTUS when it told DC's voters that they couldn't ban handguns outright?).

Laying into Roberts because he stated that the 4th Amendment only protects reasonable expectations of privacy is silly. That has been the standard 4th Amend interpretation for decades echoed by all justices, 4th Amend. lovers and haters alike. Roberts deserves his share of criticism, but let's get the facts straight, lest we end up writing like Ward Churchill.

Also, the police DO need a warrant to get your info from banks and video stores. Video stores and banks cannot simply be searched.

Justen|4.11.09 @ 3:53AM|#

The average person, confronted with cops asking if they can search her house or car, would not realize she has a right to decline. Most people "consent" because they figure they have no choice.

I can't tell you how many times I participated in engineering consent through intimidation in my time as an armed guard working for a police department. Early on in the job I asked if we had a responsibility to inform people that they had a right to decline a voluntary search, and I was told emphatically NO, with the implication that if I did there would be consequences. We detained and arrested a lot of people that could have casually walked away if they had just said "no thank you, officer". We wasted on average half an hour of many, many innocent people's times playing games like this with them. The stress this caused me is a large part of the reason I quit after three years.

If anyone has the impression that this doesn't happen, or that it's rare, please understand that you are strongly mistaken. This is not only common, it's part of the training and the job requirement. In law enforcement, you use your badge, your gun, and your uniform as tools to get around constitutional and statutory protections, ostensibly so you can more effectively 'get the bad guy' without the pesky interference of the law.

Justen|4.11.09 @ 4:00AM|#

@W.A.: Actually that's a felony in progress, it doesn't require a warrant for the police to interfere. Just so that nobody else wastes any time on that one. I know you're a troll, but honestly, if you want to attack people from a position of condescending superiority you should probably spend a few minutes Googling the subject in question beforehand; that's what divides the good trolls from the wannabes (oh, that and opening with personal insults, not very subtle). Carry on.

|4.12.09 @ 4:08AM|#

Justin, it probably escaped your penetrating intellect as well, but it was the lackwit who decided that an invective filled exchange was preferred. Also, possessing cocaine, unfortunately, is, like eating human body parts, also a felony in progress.

I know you are the sort of ass who only thinks it notable when people adopt a pointlessly insulting tone if they hold views which differ from yours, but try to attain some level of self-awareness.

|4.14.09 @ 6:46PM|#

raivo pommer-www.google.ee
[e-mail]


EUROPA FALSCHE WEG

Europa ist bei der Bekämpfung der Weltwirtschaftskrise nach Ansicht des Nobelpreisträgers Paul Krugman auf dem falschen Weg. "Die Vereinigten Staaten haben recht, Europa hat unrecht", sagte der Wirtschaftswissenschaftler, der in den vergangenen Monaten besonders die deutsche Regierung für ihre abwartende Haltung kritisiert hatte. Die Mitgliedstaaten der Europäischen Union müssten viel aggressiver als bisher versuchen, die Wirtschaft durch Konjunkturprogramme anzukurbeln. Dabei wies er Bedenken zurück, dass die großzügige amerikanische Intervention die Inflation beschleunigen und das höhere Defizit den Haushalt zu stark belasten könnte. "Eine Billion Dollar mehr wird das Problem nicht wesentlich vergrößern", sinnierte der Hochschullehrer von der Eliteuniversität Princeton am Montagnachmittag auf einer Pressekonferenz in New York.

Krugman wäre nicht der scharfzüngige Kolumnist und Buchautor, wüsste er nicht eine scheinbar simple Antwort auf die drängende Frage, wie eine Neuauflage der Großen Depression zu vermeiden sei. Er forderte staatliches Handeln auf breiter Front, ohne allzu sehr ins Detail zu gehen: aggressive Strategien, um die Kreditklemme auf den Finanzmärkten zu beseitigen, ein weiter Gestaltungsspielraum für die Geldpolitik, umfangreiche Konjunkturprogramme. "All diese Maßnahmen haben in der Vergangenheit gewirkt, und sie werden ohne Frage auch diesmal helfen", betonte er.