March 23, 2006


Roberts Dissent Reveals Strain Beneath Court's Placid Surface (LINDA GREENHOUSE, 3/23/06, NY Times)

Writing for the majority, Justice David H. Souter said the search was unreasonable, given the vocal objection of the husband, Scott Randolph. True, Justice Souter said, the court had long permitted one party to give consent to a search of shared premises under what is known as the "co-occupant consent rule." But he said that rule should be limited to the context in which it was first applied, the absence of the person who later objected.

The presence of the objecting person changed everything, Justice Souter said, noting that it defied "widely shared social expectations" for someone to come to the door of a dwelling and to cross the threshold at one occupant's invitation if another objected.

"Without some very good reason, no sensible person would go inside under those conditions," he said.

"We have, after all, lived our whole national history with an understanding of the ancient adage that a man's home is his castle," Justice Souter said. "Disputed permission is thus no match for this central value of the Fourth Amendment."

Justices John Paul Stevens, Anthony M. Kennedy and Ruth Bader Ginsburg joined the majority opinion, as did Justice Stephen G. Breyer, who explained himself in a concurring opinion notable for its ambivalent tone. Justice Samuel A. Alito Jr. did not vote, as he was not a member of the court when the case was argued.

The dissenters, in addition to Chief Justice Roberts, were Justices Antonin Scalia and Clarence Thomas. In his opinion, the chief justice took aim at the majority's description of social custom, as well as its reliance on that description to reshape "a great deal of established Fourth Amendment law."

Every lower federal court to have considered the issue, as well as most state courts, had concluded that one party's consent was sufficient. The Georgia Supreme Court, in its 2004 decision that the justices affirmed, was in the minority, ruling in this case that the evidence of Mr. Randolph's cocaine use was inadmissible.

"The fact is that a wide variety of differing social situations can readily be imagined, giving rise to quite different social expectations," Chief Justice Roberts said. For example, he continued, "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."

Noting that "the possible scenarios are limitless," he said, "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."

The majority missed the point, the chief justice said; the fact is that someone choosing to share space has also, already, chosen to share privacy.

"Our common social expectations may well be that the other person will not, in turn, share what we have shared with them with another — including the police," he said, "but that is the risk we take in sharing."

Note how the minority's reasoning will obtain when Roe is overturned.

Posted by Orrin Judd at March 23, 2006 8:04 AM

The beauty of Roberts' dissent, from the pure public relations standpoint, is he cited the example of a domestic violence incident, in which the husband refuses to allow police into the house at a time in which he's assaulting his wife. his argument is the majority's ruling would leave the husband within his rights to deny officers entry, and then go back to beating the heck out of his spouse.

The trio of dissenters here would seem to be natural targets of both the ACLU and feminists, in preparation for any future "Roe" ruling, but for the feminist groups to do that here, they either have to discount Roberts' concerns -- and their own championing of the problem of violence against women -- or say (as the majority seemed to imply), that the police can still go into the house if there's a battered woman in there, but not if there's a batch of cocaine and drug paraphernalia.

Posted by: John at March 23, 2006 9:10 AM

Did anyone see the Day-by-Day cartoon on Souter?

Click on March 19.

Posted by: Brother Jet at March 23, 2006 12:32 PM

Roberts is brilliant; OJ, your comment is most astute, if the sharing refers to the womb

Posted by: Palmcroft at March 23, 2006 12:32 PM

"We have, after all, lived our whole national history with an understanding of the ancient adage that a man's home is his castle," Justice Souter said.

I'm laughing uncontrollably right now. That is funny, funny stuff, Mr. "Kelo" Souter! Tell me another one!

Posted by: b at March 23, 2006 12:45 PM

Having yet to read the opinions, I should nonetheless point out the thought in Roberts' dissent distinguishing common social expectations from reasonable expectations.

Someone may entertain the social expectation that one with whom he shares premises will be complicit in concealing his criminality from the police, but that expectation is not reasonable.

"Reasonable" is a legal term of art denoting objectivity. That one man is a thousand may act reasonably--according to reason--in a certain situation does not make reason unreasonable.

Reply obj: The reasonableness of cooperation with authorities is related to the context. Police searching for cocaine hidden by your co-tenant do not present the same issue as Nazis searching for Jews hiding in your attic.

Posted by: Lou Gots at March 23, 2006 1:04 PM