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Posted: 3/22/2006 11:14:32 AM EDT
From: http://www.msnbc.msn.com/id/11959183/

Updated: 12:29 p.m. ET March 22, 2006
WASHINGTON - The Supreme Court ruled Wednesday that police without a warrant cannot search a home when one resident says to come in but another tells them to go away, and the court’s new leader complained that the ruling could hamper investigations of domestic abuse.

Justices, in a 5-3 decision, said that police did not have the authority to enter and search the home of a small town Georgia lawyer even though the man’s wife invited them in.

The officers, who did not have a search warrant, found evidence of illegal drugs.

The Supreme Court has never ruled on whether the Constitution’s ban on unreasonable searches covers a scenario when one home occupant wants to allow a search and another occupant does not.

The ruling by Justice David Souter stopped short of fully answering that question — saying only that in the Georgia case it was clear that Scott Fitz Randolph was at the door and objected to the officers entry.

Roberts dissents
In his first written dissent, Chief Justice John Roberts said that “the end result is a complete lack of practical guidance for the police in the field, let alone for the lower courts.”



Today's ruling reads like an episode of "Law & Order." Police officers respond to a domestic disturbance call at the home of a couple that's had a rocky marriage. In front of the officers, the husband and wife trade accusations. She claims her husband's drug use is causing money problems and says actual "items of drug evidence" are in their home. Hearing the suggestion that evidence might be inside, the police ask the husband if they can search the house. No way, he says. But the wife gives her consent and leads the officers to an upstairs bedroom, where they find a drinking straw with what looks like cocaine on it.

Today, the Supreme Court said the search was illegal and that police who don't have a warrant cannot come into a house (or apartment, or college dorm room, for that matter) when one of the "cohabitants" objects.

--Pete Williams, Justice Correspondent
Read more in "The Daily Nightly"


The case fractured a court that has shown surprising unanimity in the five months since Roberts became chief justice. Justices swapped barbs in their writings, with Souter calling Roberts’ view a “red herring.”

Justices Antonin Scalia and Clarence Thomas filed separate dissents, and Justice John Paul Stevens and Stephen Breyer wrote their own opinions to explain their votes in favor of the man whose home was searched.

Stevens said that “assuming that both spouses are competent, neither one is a master possessing the power to override the other’s constitutional right to deny entry to their castle.”

Georgia had asked the court to allow it to use evidence obtained in the 2001 search in Americus, Ga., that followed a police domestic dispute call.

Randolph and his wife, Janet, were having marital troubles. She led officers to evidence later used to charge her husband with cocaine possession. That charge was on hold while the courts considered whether the search was constitutional.

State court upheld
Georgia’s Supreme Court ruled for Scott Randolph, and the high court agreed.

“This 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.”

Justice Anthony Kennedy was the swing voter, joining the court’s four more liberal members.

Roberts’ dissent was unusually long — almost as long as the main opinion. He predicted “severe” consequences for women who invite police in only to be overruled by their husbands.

Justice Samuel Alito did not participate in the case, because he was not on the court when it was argued.

The case is Georgia v. Randolph, 04-1067.

© 2006 The Associated Press.

*************************************­*******************************

I have been thinking about this....I agree with the majority. In communal property, no spouse should be allowed to consent to a search that the other disagrees to. If police want to take a statement and get a warrant, that is a different matter. I am by no means as well versed in matters of search and seizure as the average cop here, so I will be watching this thread to see what ya'll have to say, and might change my mind if I see a compelling argument.

Link Posted: 3/22/2006 11:23:47 AM EDT
I agree with the majority opinion. If there is a person there, who has standing to give or refuse consent, he cannot be overidden by another. There's a lot of case law on consent, and it has to be freely given by someone who has legal standing to do so. If another co-owner says no, then he has not given consent. Of course if he is not there, then it's a different matter. Entering to investigate a domestic violence situation is a different matter as no search is being conducted.

I don't see any real problem with the ruling.
Link Posted: 3/22/2006 12:31:01 PM EDT
For some reason the first thing that comes to mind is:

<­font size=5>HE GOT WEED!! HE GOT WEED!!
Link Posted: 3/22/2006 12:56:03 PM EDT
[Last Edit: 3/22/2006 12:57:11 PM EDT by scrum]
I am waiting to read Scalia's dissent. I agree with your concerns, and generally think a warrant should be obtained in most cases [edit for clarity: prior to a search of a home], BUT this judgment is going to have severe repurcussions on law enforcement and on domestic violence in particular.

I am guessing that Scalia will base part of the issue on whether or not community property takes away a party's right to allow a search. Living under the same roof with someone logically means that both cohabitees, whether married or otherwise, have given some of their privacy rights up regarding the other person in so far as it involves community property, and that the first person has the right to open their property to search and by extension some portion of the second person's property that is under the first person's access and control. Part of the logic may be based in that either person can invite a person into a community property home for example (normally), even against the other's will, and the third person generally has a defense that they were not trespassing.

I would guess that Scalia's dissent will state that, for example, that the wife cannot consent to S&S of a gun safe for which she does not know the combination, or to grant a search of what is not hers, and is clear non-community property (like a box of documents stored in the attic from prior to the marriage).

This is just a guess though. Scalia usually doesn't dissent unless there is a good reason for it.
Link Posted: 3/22/2006 2:49:33 PM EDT
What issues can ya'll think of in DV cases that would be affected by this? I gave it a shot and had a hard time thinking of something that would not be enough for a probable cause search of some sort. The one I came up with would be if a spouse wanted to rat the other out for drugs so she could get him the hell out of there. But in that case, would a statement from the wife that he has drugs at such and such location in the house be enough to warrant a probable cause search without a warrant, or does that not meet the standard for a warrantless search of a house (vice the relaxed rules for cars).

I'm a Political Science student and finding myself on something of a pre-law track, so I'm starting to really be interested in legal issues.
Link Posted: 3/23/2006 8:15:17 AM EDT
this decisions makes it the opposite of what were taught. This should be interesting.
Link Posted: 3/23/2006 8:27:14 AM EDT
Simple, and correct ruling - one person cannot waive another person's civil rights. Even if they live together. Protection of the individual should be upheld and in this case it was.

The DV arguement is a red herring.
Link Posted: 3/23/2006 8:56:43 AM EDT
I agree with the majority as well. Domestics aside....it won't affect searches incident to an arrest. This is just for consent searches.
Link Posted: 3/23/2006 9:47:53 AM EDT
[Last Edit: 3/23/2006 9:55:06 AM EDT by ChickenKiller]

Originally Posted By LEO916:
this decisions makes it the opposite of what were taught. This should be interesting.



Yep.

So in a domestic some d-bag is yelling don't come in here, and his wife is all battered and such? You know we are all going to go in there, but spineless defense lawyers everywhere are going to wear this thing out. I have gotten several paraphernaila/drug arrest off of domestics, crap is on the table or something. Search incident to arrest still applies, I'm sure.

Now, if a wife wants to snitch off her hubby, wait till he's gone and get a signed consent to search.

Just another law we have to figure out how to bend.

different subject:
Someone said something about vehicles up above me.......... it's coming. Someday we will pull them over write a ticket and let em go nothing else. Fricking Liberal American Commies Livin in the US.

Link Posted: 3/23/2006 9:53:45 AM EDT

Originally Posted By ChickenKiller:

Originally Posted By LEO916:
this decisions makes it the opposite of what were taught. This should be interesting.



Yep.

So in a domestic some d-bag is yelling don't come in here, and his wife is all battered and such? You know we are all going to go in there



I was under the impression you wouldn't need a warrant in that situation b/c of PC. Is that not the case?
Link Posted: 3/23/2006 9:56:51 AM EDT

Originally Posted By PBIR:

Originally Posted By ChickenKiller:

Originally Posted By LEO916:
this decisions makes it the opposite of what were taught. This should be interesting.



Yep.

So in a domestic some d-bag is yelling don't come in here, and his wife is all battered and such? You know we are all going to go in there



I was under the impression you wouldn't need a warrant in that situation b/c of PC. Is that not the case?



Yeah PC there, but I can hear the lawyers foaming at the mouth now for any non-domestic violence arrest made during that call........ Search incident to arrest shold still kick in though!! Make sure he has long arms and access to the whole house.....
Link Posted: 3/23/2006 10:00:52 AM EDT

Originally Posted By scrum:
I am waiting to read Scalia's dissent.



Here's all the opinions

caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-1067
Link Posted: 3/23/2006 10:05:31 AM EDT

Originally Posted By AJ-IN-JAX:

Originally Posted By scrum:
I am waiting to read Scalia's dissent.



Here's all the opinions

caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-1067



thanks AJ I'll read them later
Link Posted: 3/23/2006 10:30:33 AM EDT
I don't see how this ruling is going to have much impact. It only deals with consent searches inside of a home and not the investigation of the family violence. The ruling states that it has no impact on an officer entering to investigate an assault. I am sure this is under the rules of exigent circumstances (From the ruling-This case, which recognizes limits on evidentiary searches, has no bearing on the capacity of the police, at the invitation of one tenant, to enter a dwelling over another tenant's objection in order to protect a resident from domestic violence. ). Once inside the home to investigate the claimed act of violence, a woman cannot give permission to go search her husband's gun safe for dope. He has a right to privacy over that safe and is present to deny the search.

As Johninaustin stated, it sounds like a case from the Chirs Rock video, "HE GOT WEED". Inside a house, without consent, you need a warrant. If the police are really concerned with making the dope case, they can secure the residence, seek a warrant and then execute it on the statement from the wife. It just takes little longer if they really want to hang around and make the dope case. In most domestic violence investigations, that normally just does not come up. What would stop the woman from going to get the dope herself and handing it to the officers as long as she did not do it at the direction of the police?

An officer still has the right to make a wingspan search of the room the suspect is in for weapons, assuming the officer has reasonable suspicion of danger. It does not seem a hard stretch when investigating an assault. I would assume in most states an officer can arrest for Domestic Violence and then remove the offender from the property, they can then enter with consent after the person has been lawfully removed and is no longer on the scene to deny the search. The ruling also brings up the fact that a co-habitated person can consent to community property search as long as the other party is not on scene to deny the search.

Overall, it seems like much to do over nothing. It is no different from what Miranda did to confessions. I am sure that when Miranda came down, many officers thought confessions would end. That is clearly not the case as we get them all the time under Miranda. This ruling will have very little impact on day to day law enforcement. There are still ways to do the job but you will just not be able to rely on a consent search when one party denies the consent while on the scene.
Link Posted: 3/23/2006 10:59:25 AM EDT
related case from CT. State v. Brunetti.
Kid is a murder suspect. He's not home. Dad says "come on in, look around, if my son did something wrong, that's his problem." Kid does not have a lock on his bedroom door. parents state they and other family members have access to his room, mom puts away his laundry, etc.
Mom, never says police can't come in, can't search, she just goes into the kitchen and makes coffe for the detectives. Lo and behold they find evidence of the murder. Kid is convicted. On appeal, court decides that mother did not give specific permission, she only acquiesced.
ALL EVIDENCE THROWN OUT, KID RELEASED. Ruling from CT court, all residents with stake in house must give permission at time of search unless they can't reasonably be located at that time. Prosecutors are appealing it right now.
Link Posted: 3/23/2006 11:29:04 AM EDT
A state can be more restrictive than the federal ruling....it is up to each state.

We have plenty of that with vehicle searches........we are restricted more than the federal ruling.
Link Posted: 3/23/2006 12:11:15 PM EDT
How does this affect searches when the other party with standing is not present. Of course, they wont consent after the fact (not possible anyway), and this ruling looks like the search will not be valid. Sooo, calling when hubby is not home aint gonna cut it. Unless I missed something.

Link Posted: 3/23/2006 2:45:24 PM EDT

Originally Posted By AZ-K9:
How does this affect searches when the other party with standing is not present. Of course, they wont consent after the fact (not possible anyway), and this ruling looks like the search will not be valid. Sooo, calling when hubby is not home aint gonna cut it. Unless I missed something.




It does not affect the search if the other party is not present. This is a direct quote from the USSC decision:

Held: In the circumstances here at issue, a physically present co-occupant's stated refusal to permit entry renders warrantless entry and search unreasonable and invalid as to him. Pp. 4-19.

(a) The Fourth Amendment recognizes a valid warrantless entry and search of a premises when the police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, common authority over the property, and no present co-tenant objects.


It seems fairly simple. If an ocupant gives the police consent to search the home but a co-tenant denies the right to search all or parts of it, then it is an illegal search. For example, if a woman tells the police that they can search the home but man then tells the police that they cannot look in his gun safe, then they cannot short of obtaining a warrant or showing exigent cirumstances.

The opinion of the court also states that the police may not remove the person that may object to the search soley to make him unable to deny the search. I take that to mean that the police cannot ask the guy to step outside of the home and then ask the wife to allow the search since he is being detained outside by the officers soley for the purpose of keeping him from denying the search.

None of this case denies the officer the right to enter the home to investigate a violent act, the right of an officer to frisk for safety, the ability to get a warrant with the information or to seize contraband in plain view.
Link Posted: 3/23/2006 2:48:12 PM EDT

Originally Posted By AZ-K9:
How does this affect searches when the other party with standing is not present. Of course, they wont consent after the fact (not possible anyway), and this ruling looks like the search will not be valid. Sooo, calling when hubby is not home aint gonna cut it. Unless I missed something.




From the link provided above...

Held: In the circumstances here at issue, a physically present co-occupant's stated refusal to permit entry renders warrantless entry and search unreasonable and invalid as to him. Pp. 4-19.

Link Posted: 3/24/2006 6:12:09 AM EDT
Well does it violate my right if I want the police to come in, but my partner does not. I may want the police there for my own reasons. Does this mean that I can not invite the police in for whatever reason? Does this restrict who I can invite into my home? If the husband say “come on in and have a cup of coffee”, but the wife says “no”. Are you then forbidden to enter? Just food for thought.
Link Posted: 3/24/2006 8:34:58 AM EDT

Originally Posted By ScubaTexas:
Well does it violate my right if I want the police to come in, but my partner does not. I may want the police there for my own reasons. Does this mean that I can not invite the police in for whatever reason? Does this restrict who I can invite into my home? If the husband say “come on in and have a cup of coffee”, but the wife says “no”. Are you then forbidden to enter? Just food for thought.



From the opinion of the Court as delivered by Souter:

Since the co-tenant wishing to open the door to a third party has no recognized authority in law or social practice to prevail over a present and objecting co-tenant, his disputed invitation, without more, gives a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all.

Link Posted: 3/24/2006 11:22:16 AM EDT
I don't see it having much impact. Even before this ruling, if I had one spouse giving consent, and another saying they wouldn't, I would apply for a warrant out of an abundance of caution.

Of course, you would have to detain or remove both from the premises to preserve the scene while you did, and you might have to enter it and sweep it for other individuals as well.
Link Posted: 3/24/2006 11:28:04 AM EDT

Originally Posted By Combat_Jack:
What issues can ya'll think of in DV cases that would be affected by this?



You get dispatched to a DV call and the wife invites you in but the husband says you cant come in and refuses to answer the door. Short of hearing him beating on her on the other side of the door, you have no exingency. Prior to this case you could enter with her persmission alone. Now it seems you need permission of every resident present.
Link Posted: 3/24/2006 11:31:30 AM EDT

Originally Posted By PBIR:

Originally Posted By ChickenKiller:

Originally Posted By LEO916:
this decisions makes it the opposite of what were taught. This should be interesting.



Yep.

So in a domestic some d-bag is yelling don't come in here, and his wife is all battered and such? You know we are all going to go in there



I was under the impression you wouldn't need a warrant in that situation b/c of PC. Is that not the case?

You cannot enter the house just to effect the arrest of the husband without consent to enter the house. The court has said the husband has to give you that consent now.

You get there, the wife is in the front yeard beat to hell, the husband is standing just inside tthe door. under this ruling you can try to talk him out of the house, or you can just write a crime report and gotarrest him a month later when the DA gets an arrest warrant, but you cannot enter against his will to arrest him. Even with her permission.
Link Posted: 3/24/2006 11:33:18 AM EDT

Originally Posted By ScubaTexas:
If the husband say “come on in and have a cup of coffee”, but the wife says “no”. Are you then forbidden to enter?


Yes.
Link Posted: 3/24/2006 3:28:21 PM EDT
[Last Edit: 3/24/2006 3:30:00 PM EDT by tvc184]

Originally Posted By AR15fan:
You get dispatched to a DV call and the wife invites you in but the husband says you cant come in and refuses to answer the door. Short of hearing him beating on her on the other side of the door, you have no exingency. Prior to this case you could enter with her persmission alone. Now it seems you need permission of every resident present.



I respectfully disagree. That is not what this ruling says. It clearly gives the officer the right to enter the house over the objections of one of the co-tenants if it is to investigate a Domestic Violence situation. The mere fact that it is DV is an exigent circumstance.

This case is nothing more than a Fourth Amendment right to keep out an illegal search, not to stop the police from investigating an alleged act of violence. The case law also states that this case did not even raise the issue of an officer entering to protect another person as long as there is "good reason to believe" which is nothing more than an accusation of the victim.

It seems rather foolish to think that the police are called to a house to investigate DV and the suspect can keep the victim from getting assistance just by keeping her away from the door if the police do not (as you stated) "hearing him beating on her on the other side of the door".

The following are direct quotes from GEORGIA v RANDOLPH:

This case, which recognizes limits on evidentiary searches, has no bearing on the capacity of the police, at the invitation of one tenant, to enter a dwelling over another tenant's objection in order to protect a resident from domestic violence. Notice it says "No Bearing" of one tenant over another's objection.

Nor should this established policy of Fourth Amendment law be undermined by the principal dissent's claim that it shields spousal abusers and other violent co-tenants who will refuse to allow the police to enter a dwelling when their victims ask the police for help The dissenting judges stated that they feared it would protect abusers. This section clearly shows that it is not intended for that purpose.

But this case has no bearing on the capacity of the police to protect domestic victims.....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, it would be silly to suggest that the police would commit a tort by entering, say, to give a complaining tenant the opportunity to collect belongings and get out safely, or to determine whether violence (or threat of violence) has just occurred or is about to (or soon will) occur, however much a spouse or other co-tenant objected. This section of the ruling deals with even "threat of violence". It mentions nothing of hearing a beating taking place inside.

Thus, the question whether the police might lawfully enter over objection in order to provide any protection that might be reasonable is easily answered yes. No ambiguity here.

The undoubted right of the police to enter in order to protect a victim, however, has nothing to do with the question in this case, whether a search with the consent of one co-tenant is good against another, standing at the door and expressly refusing consent. This is the explanation that this case has nothing to do with an officer entering to investigate or protect from violence. It is simple a case of an unlawful search of property, not the right (and duty) of an officer to enter to protect.


All of these are direct quotes from the case law. This is not the reporter's opinion that was floating around on the internet. In several places this case lists the officer's right to enter the residence from even the accusation of violence. The case law plainly states that this is a property rights issue of illegal search, not a case of denying a police officer the right to enter and investigation an allegation of violence.

Edit: typo
Link Posted: 3/24/2006 4:57:59 PM EDT
I agree with the majority opinion on this and I don't see the ramifications to domestic violence cases that would endanger the victim.

If there is a reasonable expectation that both parties are in the home and one says don't come in and the other one says do come in, it will depend on the individual circumstances. If the one saying come in sounds like they are in distress or injured then exigent circumstances exist precluding the need for a warrant. Now, if a search for EVIDENCE is needed and one desents then you have the agreeing party fill out an afidavit on scene and have someone go get a search warrant. You can stay on scene tosecure if you can reasonably believe that evidence will be destroyed if the other is given opportunity.

Being invited in is one thing, searching a home is another.
Link Posted: 3/24/2006 5:37:30 PM EDT

Originally Posted By cmoth:
I agree with the majority opinion on this and I don't see the ramifications to domestic violence cases that would endanger the victim.

If there is a reasonable expectation that both parties are in the home and one says don't come in and the other one says do come in, it will depend on the individual circumstances. If the one saying come in sounds like they are in distress or injured then exigent circumstances exist precluding the need for a warrant. Now, if a search for EVIDENCE is needed and one desents then you have the agreeing party fill out an afidavit on scene and have someone go get a search warrant. You can stay on scene tosecure if you can reasonably believe that evidence will be destroyed if the other is given opportunity.

Being invited in is one thing, searching a home is another.



I think you hit the nail on the head with that one.
Link Posted: 3/24/2006 8:29:10 PM EDT
I have to say I also agree with the majority on this one. The man was asked and gave the answer of No. I think he has a reasonable expectation of privacy in his house even though a bitter wife allowed officers in to search. It's like a roomie giving PD permission to search his room mates room.
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