A Combative High Court Limits Searches of Homes

The Supreme Court on Wednesday strengthened the rights of residents to bar police from entering and searching their homes, but the ruling drew a sharp dissent from Chief Justice John G. Roberts Jr.

In a 5-3 decision, the justices said a homeowner may prevent officers from looking for evidence without a warrant even if a spouse or other adult occupant consents to the search.

In the past, most courts said the consent of one resident was sufficient to permit a search.

The case, the first major criminal law decision of this term, split the court along ideological lines -- with the new chief justice speaking for the conservatives in his first written dissent.

“Sharing space entails risk,” Roberts said, including the risk of having secrets and private items exposed to the police. In the case before the court, the wife’s wish “to cooperate with the government” in a drug investigation should not be thwarted by giving her husband a “veto power,” Roberts said.

Justices Antonin Scalia and Clarence Thomas also dissented.

But a moderate-to-liberal majority, led by Justice David H. Souter, cited “the ancient adage that a man’s home is his castle.” No sensible person, Souter said, would think he was free to enter a house if one of its two occupants stood in the doorway and said, “Stay out.”

That is what happened in the case of Scott and Janet Randolph of Americus, Ga.

After staying with her parents in Canada while she and her husband were separated, Janet Randolph returned to their home in July 2001. Shortly afterward, she called police to report that her husband was a cocaine user. When officers arrived at their house, she invited them inside and said they would find evidence of his drug use in their bedroom.

Scott Randolph, a lawyer, refused to let the officers in. They entered anyway, and upstairs found a straw with a white powder that proved to be cocaine.

The case of Georgia vs. Randolph asked whether this entry without a warrant was legal.

The 4th Amendment forbids “unreasonable searches” by the government, and it generally requires police to have a search warrant before entering a home. But persons may freely consent to a search without a warrant.

So what happens if one occupant of a home agrees to let the police inside while the other adamantly refuses? The Supreme Court had never squarely answered that question until Wednesday.

Most appeals courts upheld searches as valid when one person consented. But the Georgia courts suppressed the drug evidence in Randolph’s case because the husband had not consented to the search of his house. Those judges noted that the police could have used information from the wife to obtain a search warrant.

State prosecutors and the Bush administration urged the high court to reverse the Georgia ruling and to make clear that searches were permitted whenever one occupant consented.

However, Souter said that “a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable.”

Justices John Paul Stevens, Anthony M. Kennedy, Ruth Bader Ginsburg and Stephen G. Breyer agreed with Souter.

Justice Samuel A. Alito Jr. did not participate in the decision because the case was heard in November, before he joined the court.

Souter said it would have been a different matter if police had come to protect Janet Randolph from physical abuse. Police have an “undoubted right” to enter in order to protect a victim, he said.

It also would have been different if Scott Randolph had not been there when police arrived. “We have to admit that we are drawing a fine line,” Souter said, since the court in the past has ruled that one person can consent to a search when a co-occupant is in custody elsewhere.

The ruling will almost certainly apply to other residences, such as apartments and group homes. It may not restrict searches of cars, however, because police are given more leeway to search vehicles.

Before Wednesday, Roberts’ court had handed down 11 consecutive unanimous decisions. But in the search case, Souter and Roberts traded barbed comments in their opinions.

Roberts wrote, italicizing for emphasis, that the “correct approach” to deciding the case was simple and obvious: “The 4th Amendment protects privacy. If an individual shares information, papers or places with another, he assumes the risk that the other person will in turn share access to that information or those papers or places with the government.”

He called the rule set by Souter’s majority “arbitrary,” “obscure” and “random” because it depends on the co-owner’s “good luck” of being at the door when police arrive.

In a footnote, Souter fired back. “In the dissent’s view, the centuries of special protection for the privacy of the home are over,” he wrote. He derided Roberts’ “easy assumption that privacy shared with another individual is privacy waived for all purposes, including warrantless searches by the police.”

Roberts responded that “it seems a bit overwrought to characterize” his approach as demolishing the privacy right considering that the majority had agreed that a homeowner asleep in the next room would not have had a privacy right to object to the search.

Wednesday’s dissent by Roberts is the third in which he took a conservative position on cases that split the court on ideological lines.

In January, he was among dissenting conservatives who favored the federal challenge to Oregon’s right-to-die law and Virginia’s argument that it had “sovereign immunity” from a federal bankruptcy law.

Several pending cases are also likely to split the justices along ideological lines, including a test of the Clean Water Act’s protection for wetlands and a test of Texas’ Republican-leaning redistricting plan, engineered by former House Majority Leader Tom DeLay.