Justices seem split over police search
Wife gave consent, husband objected and was arrested
From Bill Mears
The Supreme Court will decide an important case over police search powers.
WASHINGTON (CNN) -- A dispute between a husband and wife over a search of their home for illegal drugs left the Supreme Court equally at odds Tuesday in an important case over police powers.
At issue is whether law enforcement officers may conduct searches of private property without a warrant when occupants disagree over allowing the search.
The appeal is a further test of police powers in a post-9/11 environment, when the federal government and local officials have asked courts for greater authority to fight crime and illegal activity. That authority has been argued in recent court cases involving searches of cars along the border, checkpoints for drunken drivers, and police kicking down doors during drug raids. (Watch: How are constitutional protections applied in the home? -- 2:05)
The current case is a little less dramatic, but involves a common part of police work: handling domestic disturbances.
In 2001, Janet Randolph had briefly separated from her husband, Scott, but had returned to their home in Americus, Georgia, which they co-owned. An argument ensued and police were called. Janet Randolph told officers that her husband had "items of drug evidence" in the house.
Husband awaits trial
He objected to a request from police to search the home, but she consented. An initial search found some evidence of drug use, but by this time, court records show, Janet Randolph withdrew her consent. Police then obtained a search warrant and more evidence was uncovered.
Scott Randolph was charged with cocaine possession, but his case has yet to go to trial, pending the Supreme Court's decision. He wants the evidence suppressed.
The Constitution bans "unreasonable searches and seizures," and Georgia's high court said police should have deferred to an objecting occupant's wishes when there was equal use and control of a house.
During a lively session of oral arguments Tuesday, the justices appeared equally divided, with several making repeated, often emotional statements.
Paula Smith, representing the state of Georgia, argued that "under a mutual use of property, a party has lost an expectation of an exclusive right of privacy."
That brought sharp, repeated questioning from Justice Sandra Day O'Connor, who said there were long-standing "social norms" on the right to privacy. She asked Smith whether police could enter a home if one occupant "put up a sign that said, 'No police allowed.'"
Michael Dreeben, representing the Justice Department, supported Georgia, claiming, "the spouse has an independent authority to disassociate herself from illegal activity."
O'Connor was incredulous. "How can you say that's acceptable?" she asked Dreeben.
Justice Antonin Scalia added, "I would think the normal assumption is if one person wants that search excluded, that search is excluded."
Roberts seems open to police argument
But several justices appeared sympathetic to the dilemma often facing police, among them new Chief Justice John Roberts.
At one point Justice Stephen Bryer asked, "It's her house, too, isn't it?"
"And vice versa," piped in Scalia.
Justice David Souter repeatedly pressed Thomas Goldstein, lawyer for Scott Randolph, over whether there was a "reasonable expectation of privacy."
Goldstein argued that since Scott was on the premises and was able to clearly voice his objections to a search, police should have respected that. Or, he said, they should have found other ways to initiate a search, such as obtaining a warrant immediately.
Goldstein contended that police should not have unilateral authority to single out one person's consent over the objection of other occupants.
Even Justice Clarence Thomas, who rarely speaks at oral arguments, was persuaded to step into the fray.
He twice asked Goldstein if it was acceptable for the wife to recover a hidden drug stash and give it to police, even if the husband objected. Goldstein conceded there would be no legal problem with that.
Law enforcement groups say officers need some discretion to sort often competing interests between parties in conflict.
Authorities seek to expand powers
"I don't think we are giving away the constitutional rights. I believe what we are doing is maintaining a right," Ted Sexton, president of the National Sheriff's Association, told CNN. Sexton is sheriff of Tuscaloosa County, Alabama.
Beyond this case, the federal government has asked courts to expand law enforcement authority to detain and interrogate suspects, conduct surveillance, arrest and deport illegal aliens, and crack down on illegal drug use.
The Bush administration has in some cases argued that national security is at stake, and that anti-terror efforts would suffer if authorities were hamstrung in their crime-fighting efforts.
"The federal government really has tried to use the concerns of terrorism in the post-9/11 world to expand its powers and to keep the courts out and say no, the police, the FBI, the CIA need substantially greater discretion," Goldstein told CNN.
In another search-and-seizure case to be argued in January, the justices will re-examine the so-called "knock-and-announce" rule that applies when police prepare to enter a home with a search warrant.
In this case, Detroit police failed to knock and did not wait for anyone to answer the door before breaking in. Drugs were found in the residence, and the suspect has argued that any evidence should be suppressed at trial.
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