Knock knock. "Come in," says the mama bear. "Don't come in," says the papa bear. Who wins? Five justices of the U.S. Supreme Court say the papa bear wins. Three say the mama bear wins. Justice Samuel Alito has no known opinion yet, as he didn't participate in this case.
No, it isn't Goldilocks. It is Georgia v. Randolph, a very serious case recently decided by a very fractured U.S. Supreme Court. It arises out of depressingly familiar facts.
Scott Randolph and his wife, Janet, lived in Americus, Ga. They separated, and she took their son and went to stay with her parents in Canada. But a couple months later she and her son returned to the marital residence in Georgia. Not long after she got back, she called the police because she and her husband had a domestic dispute, and Scott had removed their son from the house.
When the police arrived, Janet told them Scott abused cocaine. Scott denied this. He explained that he taken their son to a neighbor's house because he was worried his wife would again take the boy out of the country. Janet told police that there were "items of drug evidence" in the house. One of the police officers asked for permission to search the house.
Usually searches require warrants, but there are a number of exceptions to the warrant rule. Consent is one. To the officer's request, Janet said yes. Scott said no. The police took this as a yes. With Janet's help, the police found cocaine. Scott Randolph was arrested and charged with possession of cocaine.
Scott Randolph moved to suppress the drug evidence because he claimed the search of his house over his express refusal violated his Fourth Amendment right against unreasonable searches and seizures. When the case got to the U.S. Supreme Court, the issue was whether one occupant can give the police consent to search shared premises when the co-occupant is right there and refuses.
As is customary, the Supreme Court examines its own precedents in a particular field when deciding a case. In 1974 in U.S. v. Matlock, permission to enter and search a residence given by one co-tenant to the police was held valid over the objection of the other because the non-consenting co-tenant wasn't there when permission was requested. Sounds good on paper, and it sounded good to majority opinion author Justice David Souter as a valid distinction from Scott Randolph's non-consenting presence.
But the reason the non-consenting co-tenant in Matlock wasn't present is because he had been arrested and was detained in a police car. Then in 1990, in Illinois v. Rodriguez, the court again upheld the validity of one co-tenant's permission to enter and search when the later objecting co-tenant was asleep elsewhere in the apartment they shared. Presence or absence from that initial request for permission made all the difference to the five-member majority. Souter admitted the court was drawing a fine line, but a clear one.
"If a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant's permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out," Souter wrote.
The elephant in the room in this decision is domestic violence. If an abused wife calls the police and they arrive, but the husband at the door refuses them permission to enter, what then? Souter batted this away as irrelevant, pointing out that the police can always enter a house over objection to protect a resident from domestic violence. Let's hope he's right.
Justices John Paul Stevens and Stephen Breyer separately concurred. Stevens, in an apparent dig at Justice Antonin Scalia, noted that under originalist interpretation — a Scalia hallmark — only a husband could refuse entry into his castle, so under that view, only the husband's consent would matter anyway. Under the "living document" view of constitutional interpretation, women now at least have equal say. Breyer, seemingly reluctant in concurrence because of domestic violence concerns, emphasized the Fourth Amendment's hostility to warrantless entry of a home and the need for a totality-of-the-circumstances approach to the legitimacy of such entries. He suggests that a domestic violence dispute could yield a very different result.
Chief Justice John Roberts wrote his first significant dissent since joining the court. He strongly believes a warrantless search is reasonable so long as police get the voluntary consent of one person authorized to give it. He pointed out that co-tenancy carries a risk of sharing that goes with the territory.
"A person assumes the risk that his co-occupants — just as they might report his illegal activity or deliver contraband to the government — might consent to a search of areas over which they have access and control," Roberts wrote.
He criticized the flimsiness of the majority rule that turns on "the good luck of a co-owner who just happens to be present at the door when the police arrive." And he clearly has domestic violence concerns, worrying that "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."
Justice Scalia joined this dissent, and wrote his own. He disputed Stevens' understanding of originalism, adding his own dig: "The most common practical effect of today's decision, insofar as the contest between the sexes is concerned, is to give men the power to stop women from allowing police into their homes — which is, curiously enough, precisely the power that Justice Stevens disapprovingly presumes men had until 1791."
Justice Clarence Thomas, wandering into his own territory as usual, dissented because of his belief that there was no search in the case, because a citizen, not a state actor, voluntarily retrieved the contraband. The Fourth Amendment only protects against government searches.
Now that the evidence cannot be used against him, Scott Randolph presumably won't be prosecuted. I wonder what will happen to Janet now if she returns to her Georgia home and needs to call the police because of domestic violence? I also wonder if Chief Justice Roberts and Justice Scalia will have the same concerns for victims of domestic violence when the court rules on the issue of whether victims' statements in 911 tapes can be used in the prosecution of alleged domestic violence abusers when the victims refuse to testify. That case has been argued and is now awaiting decision.
Marianna Brown Bettman, a former Ohio appeals court judge, teaches at the University of Cincinnati College of Law.