- The Washington Times - Wednesday, March 22, 2006

A split Supreme Court yesterday ruled that Georgia police acted unconstitutionally when they searched a home without a warrant after one occupant agreed to the search but another refused.

The court ruled 5-3 that warrantless searches may be allowed under the Fourth Amendment if a home’s occupant gives consent — but not when a second occupant “is present at the scene and expressly refuses to consent.”

Justices John Paul Stevens, Anthony M. Kennedy, Ruth Bader Ginsburg, Steven G. Breyer and David H. Souter formed the majority. Chief Justice John G. Roberts Jr., in his first written dissent since being confirmed five months ago, disagreed, saying the ruling will damage investigations of domestic violence.

“The cost of affording such random protection is great, as demonstrated by the recurring cases in which abused spouses seek to authorize police entry into a home they share with a nonconsenting abuser,” the new chief said.

Justice Antonin Scalia joined the dissent, and he and Justice Clarence Thomas wrote dissents of their own. Justice Samuel A. Alito Jr. abstained because the case was argued before he was confirmed.

The varied opinions marked the first major high court split since the confirmation of Chief Justice Roberts. Calling the new chief’s concern a “red herring,” the majority asserted the case had “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,” Justice Souter wrote for the majority.

“It would be silly to suggest that the police would commit a tort by entering … to determine whether violence (or the threat of violence) has just occurred or is about to (or soon will) occur, however much a spouse or other co-tenant objected.”

The case involved a 2001 search of Janet and Scott Randolph’s home. Mrs. Randolph had called police to complain that after a domestic dispute, her husband had taken their son away. When police arrived, she said Mr. Randolph was a cocaine user.

Mr. Randolph returned while police were still there, and Mrs. Randolph repeated her complaints about her husband’s drug use and said there was evidence of it in the house.

Mr. Randolph denied this, saying that, in fact, it was Mrs. Randolph with the drug problem. When police asked whether they could look around without a warrant, Mr. Randolph “unequivocally refused,” according to court papers. Mrs. Randolph, however, consented, leading an officer to a room where he found “a section of a drinking straw with a powdery residue he suspected was cocaine.”

Mr. Randolph was indicted on charges of possession of cocaine. A state trial court denied his motion to suppress the evidence as products of a warrantless search unauthorized by consent. But the Georgia Court of Appeals and the Georgia Supreme Court reversed the denial, ruling in favor of Mr. Randolph that a warrantless search is invalid if an occupant refuses it, regardless of whether a second occupant gives consent.

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