The Fourth Amendment Right and question of unreasonable search by police

Justice David Souter's opinion in Georgia v. Randolph will never find a place among the Great Cases in Supreme Court history. Even so, the split decision provided a nicely dissonant change from the harmony that has marked the court since Chief Justice John Roberts came aboard when this term began.

The facts were never in dispute. The Randolphs quarreled. She ran off to Canada. Then she returned to their home in Americus, Ga. There the unhappy couple publicly quarreled again. The cops arrived. She told them her husband was inhaling cocaine. Over his emphatic objection, she directed police to their bedroom. There the incriminating evidence was in plain view.


Police arrested Randolph on charges of drug possession. Before the case could go to trial, he moved to suppress the evidence. The police, he said, had violated his Fourth Amendment right to be protected against "unreasonable" search and seizure. The Georgia courts agreed. Now the high court has affirmed.

This was the question: May one occupant of shared premises legally authorize police to search without a warrant, even when a co-tenant is present and objects? Until last week, lower courts overwhelmingly had answered "Yes." Now the answer provided by Justice Souter is "No." Scott Randolph is off the hook.

When he chooses to be crisp, Souter can be crisp. Last week he was uncrisp. He was deep in constitutional goo. The question in the Randolph case, he said, is "whether customary social understanding accords a consenting tenant authority powerful enough to prevail over a co-tenant's objection." Citing a 1990 case, he trudged on:

"For the very reason that Illinois v. Rodriguez held it would be unjustifiably impractical to require the police to take affirmative steps to confirm the actual authority of a consenting individual whose authority was apparent, we think it would needlessly limit the capacity of the police to respond to ostensibly legitimate opportunities in the field if we were to hold that reasonableness required the police to take affirmative steps to find a potentially objecting co-tenant before acting on the permission they had already received."

Justice John Paul Stevens, in his avuncular mode, provided a concurring affirmation. In today's world, he said, each of the Randolphs has a constitutional right that he or she may independently assert or waive. "Neither one is a master possessing the power to override the other's constitutional right to deny entry to their castle."

Justice Stephen Breyer evidently was of two minds. The Fourth Amendment, he said, does not insist upon "bright-line rules." Rather, it recognizes that no single set of legal rules can capture the ever-changing complexity of human life. In the case at hand, the officers easily could have obtained a warrant before accepting Mrs. Randolph's invitation. If the circumstances were different, he implied, he might have joined the chief justice in dissent. The next time, he might vote the other way.

Chief Justice Roberts, in his first written dissent since he joined the court last year, had by far the better of the argument. He found Souter's opinion "puzzling." It would work against an innocent wife seeking to disassociate herself from her husband's criminal activity. Police would simply depart if they were frustrated by the husband's refusal to let them in. Roberts asked: What happens to the wife "once the door clicks shut"? The chief justice foresaw many such cases. His colleagues in the majority had opted to protect the husbandly rights of Scott Randolph. What of her wifely rights? "Remember that it is her home, too."

"Mrs. Randolph did not invite the police to join her for dessert and coffee." She felt the need of the protective presence of the police. "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." As for Breyer's concurrence, it provides "a complete lack of practical guidance for police, let alone for lower courts."

Justice Souter's unpersuasive opinion, coupled with Breyer's fluttery concurrence, will not settle this recurring issue for long. Justice Samuel Alito had to sit this one out, but eventually he will be heard from, and Breyer will wobble back to the side of well-established law.

(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)

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