Please don’t let the cops in the house while I’m at the store.

March 23, 2006 10:00 AM

Yesterday the U.S. Supreme Court held in a 5-3 decision (.pdf) that police may not search a home if any inhabitant of the home is present and objects to the search, even if another inhabitant consents. The Court drew what it acknowledged is a “fine line” – if a co-inhabitant is at the door and objects, the police can’t enter; but if the co-inhabitant is somewhere else – even in a nearby police car – and has no opportunity to object, then police don’t need his or her consent. Chief Justice Roberts issued his first written dissent, blasting the majority’s “random” and “arbitrary” rule and suggesting that the ability of police to respond to domestic violence threats could be compromised. The zingers in the footnotes may reveal “strains behind the surface placidity and collegiality of the young Roberts court.”
posted by brain_drain (88 comments total)

Some highlights from the oral arguments last fall.
posted by brain_drain at 10:00 AM on March 23, 2006

A friend of mine got busted for weed this way. He was smoking pot in his girlfriends doorm room, and the police nocked on the door. The girlfriend immediately opened the door and let them in. If she haddn't he would have had time to eat the weed or otherwise dispose of it.

Would this decision have allowed him to skate, I wonder? They didn't have a warrent at the time.
posted by delmoi at 10:05 AM on March 23, 2006

I think the NYTimes article was bit overwrought. Yes, some of the language seems to have been pointed, but hell, look at almost anything Scalia says or writes and you'll see a more dismissive tone.
posted by OmieWise at 10:07 AM on March 23, 2006

delmoi, guests aren't occupants.
posted by Jairus at 10:09 AM on March 23, 2006

Chief Justice Roberts issued his first written dissent

And what a fine dissent it was. I am extremely surprised at this decision. I think Roberts' dissent is dead-on accurate. The Fourth Amendment protects privacy in a place. If one person who has legal power over the place authorizes a search, then it does not invade the privacy rights of anyone else who shares that place. Roberts opinion is more consistent with the Fourth Amendment jurisprudence. The attempt by the majority to carve out a new rule is facially absurd.

The zingers in the footnotes may reveal “strains behind the surface placidity and collegiality of the young Roberts court.”

That is fairly typical footnoting. There wasn't anything in the footnotes which I would describe as colorful or as a "zinger" when compared to other language found in Opinions. You want to see zingers, read Scalia's dissent in Romer.
posted by dios at 10:11 AM on March 23, 2006

You've got a weird definition of privacy, dios.
posted by Jairus at 10:12 AM on March 23, 2006

5+3 = 8.

Hmm...
posted by delmoi at 10:13 AM on March 23, 2006

delmoi, guests aren't occupants.

That's what I figured. Ah well.
posted by delmoi at 10:14 AM on March 23, 2006

I agree with dios's analysis.

I personally suspect that the majority is deciding this case with one eye toward the privacy arguments in Roe v. Wade. I think the majority is jumping at any shadow that would come close to threatening the logic used by those Justices who believe in a right to privacy.

This is knee-jerk. I have not read the case yet. Dios, please don't scream at me for not having read the case yet.
posted by BeerGrin at 10:16 AM on March 23, 2006

5+3 = 8.
Hmm...

Alito wasn't a sitting member of the court when the case was heard, so he didn't take part in the decision.
posted by Godbert at 10:17 AM on March 23, 2006

Delmoi: Alito was not on the court when arguments were heard, thus he didn't cast a vote. Based on the split (Roberts, Scalia & Thomas dissenting), I'd guess it would have been 5-4. Man, do I love Souter. Holding it down on the live free or die tip...most of the time.
posted by Banky_Edwards at 10:18 AM on March 23, 2006

Alito didn't participate because O'Connor was on the bench during the argument. (From the questioning, it appears like it would have been a 5-4 decision, but going on the questioning of the judges isn't terribly accurate).


You've got a weird definition of privacy, dios.
posted by Jairus at 12:12 PM CST on March 23

Really? Well, I got it from a strange place.
posted by dios at 10:19 AM on March 23, 2006

The fact that your definition is 215 years old makes it no less weird. As far as I'm concerned, my roommate has no authority over who should or should not be allowed looking through my closet.
posted by Jairus at 10:22 AM on March 23, 2006

"The fact that your definition is 215 years old makes it no less weird. As far as I'm concerned, my roommate has no authority over who should or should not be allowed looking through my closet.
posted by Jairus at 1:22 PM EST on March 23 [!]"

The case at hand did not address a closed closet. The law of search and seizure is very specific and does not lend itself to quick analogy.
posted by BeerGrin at 10:24 AM on March 23, 2006

BeerGrin, I'm not talking about the case, I'm talking about Dios' definition of privacy:

If one person who has legal power over the place authorizes a search, then it does not invade the privacy rights of anyone else who shares that place.
posted by Jairus at 10:26 AM on March 23, 2006

Personally (just going from the news summaries I've read; I'll read the actual decision and dissents later), I think this was the right decision.

The Fourth Amendment protects the privacy of an individual from a warrantless search by the police; said individual can choose to waive that right as they see fit. What this opinion asserts, in my view, is that a third party (in this case, another member of the household) cannot waive the expected right of the individual.

In fact, I think the decision should have gone further in protecting that (hypothetical) individual's privacy. It makes sense that when a person near the door objects, that consent has not been granted. I would also have liked the court to say that a person not near the door has a chance to object as soon as they become aware of the search. If they object, the search should stop; anything found up to that point is fair game, but once an objection is lodged, the search must stop (assuming that nothing was found in the initial part of the search that would otherwise give cause for a more extensive search).

I suppose this is because I believe that privacy is a fundamental right, especially in one's home, and the government should only be able to intrude on it with the consent of all involved (or a properly issued warrant). It's something of a "privacy by default" system (i.e., you would have a right to privacy as a natural right, and a duly-passed Constitutional amendment takes some of it away in the interest of justic). Others, it seems, feel that the government's right to search is greater, and is limited by the Fourth Amendment. This would be the opposite, in effect saying that the right to search is the fundamental right, and the Fourth Amendment restricts that right by providing privacy. (Please note, I don't mean to accuse anyone of being totalitarian here).
posted by Godbert at 10:29 AM on March 23, 2006

I'm not talking about the case, I'm talking about Dios' definition of privacy:
posted by Jairus at 12:26 PM CST on March 23

Well, I'm talking about the law. And this case. Which deals with the law. And the law is the Fourth Amendment. If you want to argue that law should be something different, feel free. But you add little to the discussion of the merits of this opinion by letting us know that your personal definition of privacy is better than what our Constitution says.
posted by dios at 10:29 AM on March 23, 2006

Dios, why should someone else be able to wave my constitutional rights?
posted by drezdn at 10:33 AM on March 23, 2006

I suppose this is because I believe that privacy is a fundamental right, especially in one's home, and the government should only be able to intrude on it with the consent of all involved (or a properly issued warrant).

So when the wife answers the door and tells the cop that her husband has 18 kilos of cocaine sitting in the bedroom that he gets high on and beats her senseless and to please do something, the cops are forbidden to come in when the husband says "No."

That is absurd.

Fourth Amendment protects the right to privacy in areas that you keep private and over which you have control. If the wife says that the cops can search her house, and during the searching of her house, they find her husband's stash, then he has not expectation of privacy over that when the wife consents to the search. If I have a safe in the house that is my own and my wife is never allowed to touch it or know what it is in, she can't authorize its searching. But when it is her property, she can authorize it.

To say the husband can just say no flies in the face of the property rights of the wife.
posted by dios at 10:35 AM on March 23, 2006

If that's your law, then yes, I think the law should be different. How could my papers and effects be secure against unreasonable searches and seizures if my landlord/drunk roommate/angry girlfriend can give someone the authority to search and seize them?
posted by Jairus at 10:35 AM on March 23, 2006

In this case the wife allowed a search while the husband denied it, why should the wife's decision supercede the husband's?
posted by drezdn at 10:35 AM on March 23, 2006

Dios, why should someone else be able to wave my constitutional rights?
posted by drezdn at 12:33 PM CST on March 23

You waive your constitutional rights when you subject them to someone else's waiver. If you live alone and no one else has authority over your house, then no one can waive it for you. But the wife has rights in the house (marital property seems to be something some of you don't grasp). So you better realize that you have no expectation of privacy when your wife consents to a search.
posted by dios at 10:36 AM on March 23, 2006

So when the wife answers the door and tells the cop that her husband has 18 kilos of cocaine sitting in the bedroom that he gets high on and beats her senseless and to please do something, the cops are forbidden to come in when the husband says "No."

That is absurd.

It's not absurd at all. If the cops want to go in they can get a fucking warrent.
posted by delmoi at 10:37 AM on March 23, 2006

In the mean time, they can take the wife to a safe place so he can't beat her in the interim.
posted by delmoi at 10:37 AM on March 23, 2006

In this case the wife allowed a search while the husband denied it, why should the wife's decision supercede the husband's?
posted by drezdn at 10:35 AM PST on March 23

*posts something about drugs, terrorism, domestic violence, and purple shirts*
posted by Optimus Chyme at 10:38 AM on March 23, 2006

In this case the wife allowed a search while the husband denied it, why should the wife's decision supercede the husband's?
posted by drezdn at 12:35 PM CST on March 23

Because the wife has equal control over the premises.

Do you people women as property that do not have coequal authority over the household?
posted by dios at 10:38 AM on March 23, 2006

If you live alone and no one else has authority over your house, then no one can waive it for you. But the wife has rights in the house (marital property seems to be something some of you don't grasp).

You speak rather authoritatively for someone who disagrees with 5 of 8 supreme court justices.
posted by delmoi at 10:38 AM on March 23, 2006

Do you people women as property that do not have coequal authority over the household?

Yes. Yes we do. Now can we get back to the issue of privacy?
posted by Jairus at 10:39 AM on March 23, 2006

Because the wife has equal control over the premises.

Do you people women as property that do not have coequal authority over the household?

Dios, there is no equality issue here, A wife has just as much right to deny consent to search as the husband
posted by delmoi at 10:39 AM on March 23, 2006

Lookout, delmoi! It's a trap!
posted by Jairus at 10:40 AM on March 23, 2006

In other words, if a husband and wife get into a fight, and the husband says "come check out my wife's giant pot stash" the cops can't do it under this ruling.
posted by delmoi at 10:40 AM on March 23, 2006

You're both diverting the issue by discussing it in gendered terms. Gender is irrelevant to this conversation.
posted by Jairus at 10:41 AM on March 23, 2006

If each cotenant has a possessory interest in the whole of the property, why should one cotenant be able to usurp the privacy rights of another cotenant?
posted by Dr. Zira at 10:41 AM on March 23, 2006

You speak rather authoritatively for someone who disagrees with 5 of 8 supreme court justices.
posted by delmoi at 12:38 PM CST on March 23

Actually, all of the justices agreed on the point you just quoted me on. But I guess you have to read the opinion or have even a smidgeon of understanding of the law to know that.

The problem is that the majority recognized the right of the women to consent to the search, but created some rule that if, and only if, the husband is at the door at the same time, her consent of a search of her house is invalid.

But if he isn't at the door or even at the house, then all judges agreed that the women has the right to consent to the search and that the husband would have no expectation of privacy there.

People should really read the opinions before arguing this.
posted by dios at 10:41 AM on March 23, 2006

So you better realize that you have no expectation of privacy when your wife consents to a search.

Except, the Supreme Court ruled that if we're both present, I do.

Do you people women as property that do not have coequal authority over the household?

No, I see them as exactly equal. So we end up with too different but equal statements, 1) Search the house 2) Don't search the house. As the Supreme Court ruled, 2) has more consitutional protection.
posted by drezdn at 10:42 AM on March 23, 2006

This is why I'll never kick out my deadbeat brother Billy. Bastard never does shit, but he answers the door and distrusts authority. Thanks, Billy!
posted by graventy at 10:42 AM on March 23, 2006

Delmoi: Alito was not on the court when arguments were heard, thus he didn't cast a vote. Based on the split (Roberts, Scalia & Thomas dissenting), I'd guess it would have been 5-4. Man, do I love Souter. Holding it down on the live free or die tip...most of the time.

I know this, I just thought it was interesting that O'Connor didn't bother to vote. She did vote in another case where the decision was done after Alito was nominated. What would have happened if the vote had been 4-4?
posted by delmoi at 10:42 AM on March 23, 2006

If each cotenant has a possessory interest in the whole of the property, why should one cotenant be able to usurp the privacy rights of another cotenant?
posted by Dr. Zira at 12:41 PM CST on March 23

Because you only have privacy over that which you have an expectation of privacy over. And if you are talking about a premise that multiple people have authority over, then your expectation of privacy is contingent on the decision of those other people to keep things private.
posted by dios at 10:43 AM on March 23, 2006

Dios: How are my papers and effects secure against unreasonable searches and seizures if my landlord, , drunk roommateor angry girlfriend can give someone the authority to search and seize them?
posted by Jairus at 10:44 AM on March 23, 2006

Do you people women as property that do not have coequal authority over the household?
posted by dios at 10:38 AM PST on March 23

That's a terrible argument and you should be ashamed that you even tried it. No one is saying that a man has greater rights than a woman or vice versa; what they're saying - and you know this, so don't play coy - is that all things being equal, the right to privacy of party A outweighs the waiving of privacy of party B.
posted by Optimus Chyme at 10:44 AM on March 23, 2006

dios: So when the wife answers the door and tells the cop that her husband has 18 kilos of cocaine sitting in the bedroom that he gets high on and beats her senseless and to please do something, the cops are forbidden to come in when the husband says "No."

In effect, yes, that's what I'm saying. There is already a procedure in place for someone to report domestic violence, and I think it's quite likely that with a sworn statement by the wife, a warrant would be issued.

The situation that would concern me more is like the one offered by Jairus, when the police don't have one occupant making a complaint, but request a search and one occupant allows them in.

To say the husband can just say no flies in the face of the property rights of the wife.

And to say that the wife can give consent to seach property which is legally shared flies in the face of the property and privacy rights of the husband.
posted by Godbert at 10:46 AM on March 23, 2006

Actually, all of the justices agreed on the point you just quoted me on. But I guess you have to read the opinion or have even a smidgeon of understanding of the law to know that....

But if he isn't at the door or even at the house, then all judges agreed that the women has the right to consent to the search and that the husband would have no expectation of privacy there.

I'm not retarded. You seemed to be arguing that the decision was wrong, or at least that it was 'absurd' that a husband (or wife, or roommate) could deny consent to search if they were there. What do any of your posts mean if we're not limiting the discussion to the specific case where the co-occupant explicitly denies consent? It's obvious from context that I'm talking about this specific set of circumstances.
posted by delmoi at 10:46 AM on March 23, 2006

Of course the moral of the story is that you should never leave your wife home alone with your coke.
posted by drezdn at 10:48 AM on March 23, 2006

Dios: How are my papers and effects secure against unreasonable searches and seizures if my landlord, , drunk roommateor angry girlfriend can give someone the authority to search and seize them?
posted by Jairus at 12:44 PM CST on March 23

I've explained this. You don't have an absolute right to have your "papers and effects" secure from searches. You only have that right when you have an expectation of privacy. When other people have authority and the ability to consent to searches on the premises, then your expectation of privacy only exists to the extent those other people agree to keep it private.

Again, all 8 members agreed on this point. The only difference is that the majority put forth a tortured rule that if, and only if, the other person is at the door, then one person can veto the search. But if the person wasn't at the door, then all 8 members agreed that the husband has no expectation of privacy when his wife has authority over the house to authorize a search.
posted by dios at 10:48 AM on March 23, 2006

When other people have authority and the ability to consent to searches on the premises, then your expectation of privacy only exists to the extent those other people agree to keep it private.

Ah. So what you're saying is that the right of the property owners to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.
posted by Jairus at 10:49 AM on March 23, 2006

(the right of property owners, not the right of the property owners)
posted by Jairus at 10:50 AM on March 23, 2006

To say the husband can just say no flies in the face of the property rights of the wife.

Are you unfamiliar with the concept of joint ownership? Regardless of gender, you cannot sell a joint spousal property without the consent of your spouse. Why should it be any different for determining who has the right to enter the property?
posted by jonp72 at 10:50 AM on March 23, 2006

Delmoi, Jairus, feel free to argue yourselves blue about the merits of this particular case. But the fact is, Dios is absolutely correct in his explanation of what 4th Amendment jurisprudence allows. Complain all you like, but this is fundamental stuff.
posted by schoolgirl report at 10:52 AM on March 23, 2006

Ah. So what you're saying is that the right of the property owners to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.
posted by Jairus at 12:49 PM CST on March 23

This isn't a search of a person or paper. This is a search of a place. And you only have privacy over searches of a place to the extent you have an expectation of privacy over the place. I have no expectation of privacy of a place if I am guest at one. Nor do I have an expectation of privacy at a place that I have authority over if someone else has authority over it as well and has permitted people to enter that place.
posted by dios at 10:53 AM on March 23, 2006

Jairus writes "How are my papers and effects secure against unreasonable searches and seizures if my landlord, , drunk roommateor angry girlfriend can give someone the authority to search and seize them?"

Your landlord can't give authorization unless your landlord is your roommate.

The thing that seems wierd in this decision isn't that your angry ex can let the police into their home, that part is obvious. The wierd part is that if both of you are standing at the door you can stop people from accepting your ex's invitation into your ex's home.
posted by Mitheral at 10:53 AM on March 23, 2006

The only difference is that the majority put forth a tortured rule that if, and only if, the other person is at the door, then one person can veto the search.

Well, it seems totally resonable to me. I don't get what's 'tortured' about it at all.
posted by delmoi at 10:53 AM on March 23, 2006

I'm not arguing that Dios is or isn't correct in his interpretation of the 4th Amendment's legal boundaries. I'm Canadian, and not a lawyer. What I'm discussing is if that interpretation adequately protects the individual's right to privacy.
posted by Jairus at 10:55 AM on March 23, 2006

Delmoi: ah yeah, I kind of thought you could work that out for yourself. ;) I assume O'Connor not voting is a tacit vote with the majority, while letting her clerks have the week off instead of having to write and footnote an opinion. Certainly if it was a tie she would have jumped in? I dunno.

Also, dios: the cops are not forbidden from addressing the immediate problem of domestic abuse. In fact, from the wording of this decision it looks like they could have taken the husband into custody and then used the wife's consent. (I assume they could argue that removing the husband was related to the abuse, not to thwart his denial of entry.)

I think this ruling is perfectly consistent with the 4th amendment - if I'm at my door, I can stop someone from entering, even if my wife is next to me contradicting me. She could do the same. My right to be free of warrantless searches trumps her right to assent to such a search. If she wants to rat me out, they can use that information to get a warrant, right? And if I'm breaking another law, they can still arrest me for that, right?
posted by Banky_Edwards at 10:56 AM on March 23, 2006

delmoi: Well, it seems totally resonable to me. I don't get what's 'tortured' about it at all.

I find it "tortured" because of the fact that it only applies to being near enough to the door to 1) be aware of the request to search, and 2) be heard in an objection.

If I were in the basement, and the police knocked at the front door and my roommate answered and gave consent to search, there's nothing I can do about it. If I'm upstairs watching TV, however, I can say no. Why should my location in the house have any effect at all on my ability to object to a search?
posted by Godbert at 10:58 AM on March 23, 2006

The basic point is that the police have no more right to enter your property without a warrant then anyone else Legally they are not "special"

Imagine this situation: Your wife's Ex boyfriend, who you hate, makes plans with your wife to come visit. He shows up at the door and the wife lets him in. You flip, because you hate the guy (maybe he used to beat up your wife while they were dating, but she still likes him or whatever).

You say he can't come in, he says that he can because the wife said he could.

You all decide to call the police. What do you think the cops are going to do? Force you to let the guy into your house, or tell him to leave?

It seems obvious that they'd tell him to leave. This situation between 'equals' is the same as the situation between you and the police. They have no special rights to enter a house, untill they get a warrent.
posted by delmoi at 11:00 AM on March 23, 2006

The only difference is that the majority put forth a tortured rule that if, and only if, the other person is at the door, then one person can veto the search. But if the person wasn't at the door, then all 8 members agreed that the husband has no expectation of privacy when his wife has authority over the house to authorize a search.

How is this tortured?

Two people share the property and are present when the police come. One wishes to allow the search, the other wishes to disallow the search. Both make their preferences explicit.

The issue is: which are we to give priority to? And the justices decided that giving priority to whichever householder who gives the answer the police want violates the rights of the other householder.

Makes perfect sense to me, and it doesn't seem arbitrary at all.

Why should my location in the house have any effect at all on my ability to object to a search?

If you are in the basement, you are not present to give or withhold consent. If the police ask who else is home (which they will, they always do) and you are called upstairs, you can inform them that you do not consent to a search and ask them to leave then.
posted by sonofsamiam at 11:02 AM on March 23, 2006

dios said: "So when the wife answers the door and tells the cop that her husband has 18 kilos of cocaine sitting in the bedroom that he gets high on and beats her senseless and to please do something, the cops are forbidden to come in when the husband says "No.""

How can you be scolding other people about not reading the case when this domestic violence argument is very clearly disputed by Souter in his argument. From the NY Times article linked:

"Justice Souter also attacked as a "red herring" a warning by Chief Justice Roberts that the rule the court was adopting would hamper the ability of the police to protect victims of domestic violence.

Justice Souter said the law was clear on the right of the police, despite any objection, to enter a home to protect a crime victim. But that issue "has nothing to do with the question in this case," he said."
posted by inigo2 at 11:04 AM on March 23, 2006

The issue is only tortured if you consider it as a question of the husband's right to be private, vs the wife's right to have her stuff searched.

The issue is the cops right to search. I think in any social situation between equals, a person can't enter premises if one of the occupants objects. The objector may feel a lot of pressure to consent (such as in the long distance example) but doesn't really have too.
posted by delmoi at 11:06 AM on March 23, 2006

"tortured rule that if, and only if, the other person is at the door,"

Actually, it seems to say that if they're in the property, they can object, but when they aren't in direct posession of the property (even in a nearby cop car), they can't. Which would seem to indicate that if the police wanted to search, they could simply haul you off into the cop car and ask again.
posted by klangklangston at 11:06 AM on March 23, 2006

Banky, thats how I read it,

Shared rights is just that SHARED! not one trumps the other at a Cops discretion, it seems this ruling clears that up.
Baring an actual crime being committed or chasing a fleeing felon into the premise, it make sense to rule this way.

if Cop wants to see Bobs stuff in Jim's room, Cop has to Ask Jim to get into the room and Ask Bob to search his stuff OR Get a warrant.

Dios' reading of the past interpritation was correct, it seems it has now changed.
posted by Elim at 11:11 AM on March 23, 2006

How can you be scolding other people about not reading the case when this domestic violence argument is very clearly disputed by Souter in his argument.

Yeah. I read the case. And I also know the law. What Souter was referring to is a specific exception to search and seizures when there is probable cause to believe a crime is occurring. But as I mentioned above, and as Roberts mentioned in his opinion, that exception isn't as helpful as Souter suggests. If the bruise isn't on the face and there are no outward signs, and all you have is the wife telling the police officer something, that is insufficient under the opinion that Souter authored. The husband could be standing there too and saying "go away; nothing to see here."

The reason why it is a tortured rule is best explained by Roberts here:

Our third-party consent cases have recognized that a person who shares common areas with others assume[s]the risk that one of their number might permit the common area to be searched.” Matlock, 415 U. S., at 171, n. 7. The majority reminds us, in high tones, that a man’s home is his castle, ante, at 10, but even under the majority’s rule, it is not his castle if he happens to be absent, asleep in the keep, or otherwise engaged when the constable arrives at the gate. Then it is his co-owner’s castle. And, of course, it is not his castle if he wants to consent to entry, but his co-owner objects. Rather than constitutionalize such an arbitrary rule, we should acknowledge that a decision to share a private place, like a decision to share a secret or a confidential document, necessarily entails the risk that those with whom we share may in turn choose to share—for their own protection or for other reasons—with the police.

Quite simply, whenever the Court attempts to develop a "bright line rule" they have already failed at their task.
posted by dios at 11:11 AM on March 23, 2006

I have to say that I agree with dios and Godbert here. All of the justices agree that if a husband or wife (or other joint property owner) gives consent while you are not present, then the police are allowed to enter, but that if (and only if) you are present and object, then they cannot enter. This seems a very strange rule. Why should I have the right to privacy only if I am present. It seems like I should either have it regardless of what my wife (or other joint property owner) says, or that I shouldn't but that my presence should not be the deciding factor.
posted by bove at 11:12 AM on March 23, 2006

The whole "having to be at the door" thing seems pretty arbitrary; I don't know if I'd really trust cops to always wait and ask if anyone else was home if they thought it might stop them getting in.

I still don't understand how you're giving up your "expectation of privacy" unless you retain sole ownership of a property. If any one owner can consent to a search of other people's space/stuff, then every owner holds the "expectation of privacy" of the others in their hand - to me, that's plainly stoopid and arbitrary, whether its backed up by case law or not. If someone doesn't want to have their stuff warrantlessly searched, then they should expect that it won't happen regardless of someone else's decision. Duh. But hey, I'm just a foreigner.
posted by Drexen at 11:22 AM on March 23, 2006

I believe only Justices sitting on the court at the time the opinion is issued get to have their vote counted. So the moment Alito was confirmed and sworn in, O'Connor no longer had any involvement in the final decisions. She may have been part of the discussions up to that point but if the vote had been 4-4 I don't think she would have been able to break the tie.

As an aside for people who know more about this stuff, I know that SC justices can recuse themselves prior to a case being heard, but can they just decide not to vote after it is heard?
posted by obfusciatrist at 11:22 AM on March 23, 2006

As an aside for people who know more about this stuff, I know that SC justices can recuse themselves prior to a case being heard, but can they just decide not to vote after it is heard?
posted by obfusciatrist at 1:22 PM CST on March 23

Yeah. They choose to never vote and just sit in arguments.

"Vote" really only means whether you join an opinion.

But as a technical matter, a judge could never author or agree to an opinion. The only limitation there is that such a judge would likely find an impeachment and removal form office forthcoming.
posted by dios at 11:31 AM on March 23, 2006

(They *can* choose....)
posted by dios at 11:32 AM on March 23, 2006

And you only have privacy over searches of a place to the extent you have an expectation of privacy over the place. I have no expectation of privacy of a place ....

That "expectation" thing keeps coming up. But who gets to define what "expectation" you have a right to?
posted by lodurr at 11:35 AM on March 23, 2006

If the bruise isn't on the face and there are no outward signs, and all you have is the wife telling the police officer something, that is insufficient under the opinion that Souter authored.

Sounds like an appropriate level of protection from hearsay, to me.

If you want to live in a free society -- or, for that matter, if you want to enjoy the many benefits of living in a free society -- then you have to accept certain costs. One of those costs is that the police won't be able to arrest just anyone they want to whenever they have a suspicion that they believe merits arrest. I can live with that. Easily.
posted by lodurr at 11:40 AM on March 23, 2006

Hi, lefty pinko atheist democrat fringe liberal here. I agree with dios and with most of Roberts's dissent. The Fourth Amendment protects the privacy of an individual person when that person is searched; and protects the privacy of a dwelling when that dwelling is searched. Nobody can waive for me my protection against searches of my own person. But once I share a physical space with another person, I have licensed that person to assert certain property rights on my behalf. Justice Breyer probably most closely shares my views in this case.
posted by Saucy Intruder at 11:54 AM on March 23, 2006

So when the wife answers the door and tells the cop that her husband has 18 kilos of cocaine sitting in the bedroom that he gets high on and beats her senseless and to please do something, the cops are forbidden to come in when the husband says "No."

No. It means only that if the cops enter and search for drugs under those circumstances, the resulting evidence will not be admissible if the husband is tried on drug charges. Until the DA uses one of the various schemes to get around the exclusionary rule.

The cops would presumably be free to arrest the husband on suspicion of wife-beating, file an affidavit based on the statements the wife made about the cocaine, and come back with a goddam warrant.
posted by ROU_Xenophobe at 11:59 AM on March 23, 2006

The cops would presumably be free to arrest the husband on suspicion of wife-beating, file an affidavit based on the statements the wife made about the cocaine, and come back with a goddam warrant.
posted by ROU_Xenophobe at 1:59 PM CST on March 23

You are missing two different issues. The domestic abuse angle is an example where the bright line rule is unworkable. That is distinct from the judgment in this particular case.

There is a saying that bad facts make bad law. Here, the Court fashioned a "bright line" rule that apparently will apply in all cases involving police consent. So in a future incident, especially in a "he said, she said" case, the police won't be able to do their job. "My husband beat our daughter in the den and he is going to beat me next." "No, officer, that isn't true. And no you can't come in." There is no exigent circumstance there. There isn't sufficient suspicion to arrest the husband based merely on that statement. So applying the bright line rule in that case, the police wouldn't be able to come in in the rare circumstance where the husband is at the door and says "no." Yet, if the husband is in the other room, then she can do it. If the cops make it a step into the living room, the husband's "no" is meaningless.

It is an absurd rule and doesn't protect any heretofore known rule under the Fourth Amendment.
posted by dios at 12:17 PM on March 23, 2006

Actually, dios, Justice Breyer, whose concurrence provided the fifth and final vote for the majority, says that this isn't a bright line rule, and depends on the circumstances of the case.
posted by monju_bosatsu at 12:23 PM on March 23, 2006

Are you saying Breyer's opinion is controlling?

Hmm.

SOUTER, J., delivered the opinion of the Court, in which STEVENS, KENNEDY, GINSBURG, and BREYER, JJ., joined. STEVENS, J., and BREYER, J., filed concurring opinions. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA, J., joined. SCALIA, J., and THOMAS, J., filed dissenting opinions. ALITO, J., took no part in the consideration or decision of the case.

5 joined the opinion. I think Souter's is controlling based on that. Unless there is some distinction vis-a-vis opinion/judgment that is no evident in this version.
posted by dios at 12:27 PM on March 23, 2006

WaPo article on the ruling.

Just another mention that Scalia's "domestic violence" issue is a red herring. I'll double check with some cop friends, but a 911 call regarding battery is enough probable cause for them to enter your home and make sure no one is getting beaten--if they suspect violence has occured recently, they'll feel free to enter your home and talk to the victim (actually, they'd probably ask to enter, or to have her come out, but they'd be well within their rights to enter the home).

From the WaPo: The case arose out of a 2001 quarrel over child custody at the home of Janet and Scott Randolph in Americus, Ga. When officers arrived, she told them where they could find his cocaine. An officer asked Scott Randolph for permission to search the house. He refused, but Janet Randolph said yes -- and led them to a straw covered in cocaine crystals. Scott Randolph was arrested and indicted on charges of cocaine possession.

So if you're beating someone, expect to waive your 4th amendment rights. If someone you live with is trying to zap you for drug possession, you have Constitutional protections of your privacy. Interesting. I think SCOTUS made the right decision.
posted by bardic at 12:30 PM on March 23, 2006

Though, Breyer did note in his opinion:

Given the case-specific nature of the Court’s holding, and with these understandings, I join the Court’s holding and its opinion.

That is interesting. You may be right, as the narrowest concurrence, that the issue of the bright-line rule is off the table. That seems to limit the opinion to its facts. In which case we just spent time arguing something that will have no application going forward.

That would also mean that Matlock still governs, so Roberts would be articulating the standing law.
posted by dios at 12:37 PM on March 23, 2006

That would also mean that Matlock still governs, so Roberts would be articulating the standing law.

Well, no. Matlock doesn't address the issue in this case, which is whether a present co-habitant can veto consent. Both sides agree that Matlock is good law, they just disagree over it's import in this case. The notion that Breyer's concurrence somehow means that "Roberts [is] articulating the standing law" in his dissent is just plain wrong.

Also, I'm not really claiming that Breyer's opinion is controlling in the Marks sense--mostly because I don't think the opinions meet the "no single rationale" test--but it is informative, given that Breyer explicitly states that he joined the opinion based on his understanding that the resolution is case-specific and not a bright line rule.
posted by monju_bosatsu at 1:22 PM on March 23, 2006

Well, no. Matlock doesn't address the issue in this case, which is whether a present co-habitant can veto consent. Both sides agree that Matlock is good law, they just disagree over it's import in this case. The notion that Breyer's concurrence somehow means that "Roberts [is] articulating the standing law" in his dissent is just plain wrong.


Well, I think Souter's opinion is controlling. A bright line rule has been established. But you are suggesting that perhaps Breyer's opinion may be controlling in that it limited this case to its facts and cut out the underpinnings of a bright-line rule. And if that is the case, and this opinion is limited to its facts, then the previous precedent controlling these kind of situations going forward is Matlock. Thus, if Breyer's concurrence limits the case to the facts, Matlock is the governing precedent. It is also the opinion that Roberts followed. I wasn't saying that Roberts' dissent was controlling. I was saying that if Breyer limited to the facts, then Matlock is the controlling law and that is the position that was articulated by Roberts.

But that is a mere hypothetical, because as I said, I think Souter's opinion is controlling.
posted by dios at 1:33 PM on March 23, 2006

"My husband beat our daughter in the den and he is going to beat me next." "No, officer, that isn't true. And no you can't come in." There is no exigent circumstance there. There isn't sufficient suspicion to arrest the husband based merely on that statement. So applying the bright line rule in that case, the police wouldn't be able to come in in the rare circumstance where the husband is at the door and says "no."

I don't think the domestic abuse example is helpful in this context. Randolph is a drug case. Under your hypothetical, it may be correct to say there isn't sufficient suspicion to arrest the husband, but I have no doubt that a cop could come inside and investigate a domestic abuse crime and any evidence he discovered would hold up under Randolph. After all, the ultimate rule for a warrantless search under the 4th amendment is reasonablness.
posted by Cletis at 1:49 PM on March 23, 2006

dios, you miss my point. My point is not that Justice Breyer's opinion differs from the plurality in that he would apply a context-sensitive test; my point is that Breyer is describing the plurality opinion itself. Where is the so-called "bright-line" rule in Souter's opinion? Breyer doesn't see one, and emphasizes that aspect of the plurality's rationale.
posted by monju_bosatsu at 1:52 PM on March 23, 2006

What about people who have roommates out of economic necessity? It's not really a choice when your only other option is living on the street. Do people with less money automatically have less right to privacy?

I can see why people think the decision draws an arbitrary line, but if you have to draw the line somewhere, I would rather the court err on the side of more individual liberty rather than less.
posted by 912 Greens at 2:34 PM on March 23, 2006

But who gets to define what "expectation" you have a right to?

The Supreme Court says hello.
posted by schoolgirl report at 4:04 PM on March 23, 2006

"Do people with less money automatically have less right to privacy?"

Yes. Thus as it has been, so shall it be.
posted by klangklangston at 4:17 PM on March 23, 2006

Excellent discussion, everyone!

I wish I had something to add but all my thoughts have been covered. I agree with dios as to the 4th Amendment issue, but I also lean to monju_bosatsu's take on Breyer's opinion.

Metafilter as it should be.

And yeah... unfortunately, the poorer you are, the more likely some laws work against you rather than for you. Human nature.
posted by zoogleplex at 5:00 PM on March 23, 2006

What about people who have roommates out of economic necessity? It's not really a choice when your only other option is living on the street. Do people with less money automatically have less right to privacy?

Isn't that where expectation of privacy comes in?
I was under the impression that in a shared house, anyone can authorise a search of common areas. But your roommates can't grant permission to search a room (i.e. your bedroom) that they would not ordinarily enter without permission.
IANAL though, I seem to remember something about this only applying if your door has a lock.
posted by atrazine at 6:22 PM on March 23, 2006

atrazine, you have the right of it, according to my friend who's a cop (we had a long conversation about this ruling earlier today). His short answer to my question about roommates and/or living in a group house was that if you're going to have something illegal, put it in your own secluded space (a closet, for example). If it's in a common area (living room, kitchen), and in plain view, you're all liable, generally. If you call the cops to complain about, say, your stoner roommate who's dealing and leaving bongs and such out in the common areas, a judge will probably cut you, the informer, some slack, probably. YMMV. (And please take all of this with a grain of salt, since our conversation was informal to say the least.)

Another practical issue is that most people will allow cops to search their house verbally, then some drugs are found in plain view, and then complain about their 4th amendment rights. Well, you waived them when you let the cop in. Further, probable cause is the magic phrase here--if you have scratches on your face, if shouting is coming from inside the house, if neighbors are complaining about noise, all of these constitute probable cause to varying degrees, in which case your 4th amendment right to privacy is no longer an issue. Legally, a cop is then bound as a legal authority to uphold the peace (I forget the legal phrase he used, exactly, but something like that). Further, there are plenty of "workarounds" (his phrase)--not going to allow a cop into your place? Fine. He or she can decide to freeze a potential crime scene--no one enters or leaves. His general sense was that while technically this strengthens privacy rights, practically the outcome could be that judges will be more likely to issue sweeping warrants, just to avoid any potential he-said/she-said situations.

Interesting stuff. From abortion to wire-tapping to stuff like this, it's clear that the fourth amendment is going to be getting a lot of attention in the coming years. Believe me, cops really don't like going into people's houses if they don't have to (good ones at least), but if they smell a bad/violent/criminal situation, it's rare that they'll leave without getting the info they need. Again, the battered spouse thing is a red herring on the practical end.

Again, someone else's professional .02$.
posted by bardic at 7:07 PM on March 23, 2006

Well, no. Matlock doesn't address the issue in this case

I don't see how Andy Griffith has anything to do with this...
posted by WhipSmart at 7:49 PM on March 23, 2006

So immediately opening fire on the warrentless cops would be denying consent then?
posted by Smedleyman at 7:21 AM on March 24, 2006

There's nothing strange about the ruling.

If two people, A and B, live together, individually A can invite the cops in and individually B can tell them to go to hell, so whether the cops get in depends on who is home when the cops arrive. A and B have equal rights that way.

But if both A and B are home and have conflicting instructions for the cops, it's a tie, and in a tie the law should favor the person who wants to retain his or her privacy.
posted by pracowity at 2:02 PM on March 24, 2006