Washington – A Supreme Court decision Wednesday in an uncelebrated criminal case did more than resolve a dispute over whether the police can search a home without a warrant when one occupant gives consent but another objects.
More than any case so far, the decision, which said the search was illegal without a warrant by a vote of 5-3, drew back the curtain to reveal the strains behind the surface placidity and collegiality of the young Roberts court.
It was not only that this case, out of 32 decided since the term began in October, provoked Chief Justice John Roberts to write his first dissenting opinion. He had cast two earlier dissenting votes and had to write a dissenting opinion eventually.
And although there had been much commentary on the court’s unusually high proportion of unanimous opinions – 22 so far, compared with 27 in all of the last term – few people expected that rate to continue as the court disposed of its easiest cases and moved into the heart of the term.
Rather, what was striking about the decision in Georgia vs. Randolph was the pointed, personal and acerbic tone in which the justices expressed their disagreement over whether the Fourth Amendment’s ban on unreasonable searches was violated when the police in Americus, Ga., arriving at a house to investigate a domestic dispute accepted the wife’s invitation to look for evidence of her husband’s cocaine use over his objections.
The dueling opinions themselves were relatively straightforward. But as has often been the case in the court’s recent past, although not so far this term, the justices revealed their real feelings in the footnotes.
Writing for the majority, Justice David Souter said the search was unreasonable, given the vocal objection of the husband, Scott Randolph. True, he 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, 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.
“We have, after all, lived our whole national history with an understanding of the ancient adage that a man’s home is his castle,” Souter said. “Disputed permission is thus no match for this central value of the Fourth Amendment.”
Justices John Paul Stevens, Anthony Kennedy, Ruth Bader Ginsburg and Stephen Breyer joined the majority opinion. Justice Samuel Alito did not vote, as he was not a court member when the case was argued.
The dissenters, in addition to Roberts, were Justices Antonin Scalia and Clarence Thomas. In his opinion, Roberts 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.”
The majority missed the point, the chief justice said, explaining that someone choosing to share space also has 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.”
That was the analysis, and then came the footnotes.
The usually mild-mannered Souter said in footnote 4 that “in the dissent’s view, the centuries of special protection for the privacy of the home are over.”
By invoking a “false equation” between inviting the police into the home and reporting a secret, Souter said, the chief justice “suggests a deliberate intent to devalue the importance of the privacy of a dwelling place.”
Roberts responded in turn. The majority had mischaracterized his position on privacy and “seems a bit overwrought,” he said in a footnote. In a concluding paragraph of his dissent, he said: “The majority reminds us, in high tones, that a man’s home is his castle, 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.”
Souter also attacked as a “red herring” a warning by Roberts that the rule the court was adopting would hamper the ability of the police to protect victims of domestic violence.
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 that issue “has nothing to do with the question in this case.”