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SCOTUS: Warrants necessary if one occupant objects
Posted by: mcq on Thursday, March 23, 2006

I find nothing to object too concerning the court's ruling in this case.
The justices ruled 5-3 that police without a warrant cannot search a house when one resident agrees but another says no.
In fact, I don't see why this even required a ruling.

If the police show up at your home, a home in which two of you live, and you happen to answer the door and say "no" when they ask if you can search, that ends it until an warrant is obtained.

Essentially what Roberts and the boys are saying is if the police get lucky and the one who answers the door says "yes" screw the rights of any other person in the house, they've got all then need to enter the home.

Uh, no. Not until all who live there agree.

Roberts says:
"The law acknowledges that although we might not expect our friends and family to admit the government into common areas, sharing space entails risk," Roberts wrote in a dissent that hinted that he lost votes in the 41/2 months it took the justices to resolve the case.
Nonsense. Sharing space in a home doesn't abrogate one's rights because someone else agreed to allow police in. That sort of argument begins with the premise that the person consenting to the search has superior rights to the other. It allows the police to pick and choose the answer they want as a basis for entering the house.

Souter wrote:
"There is no common understanding that one co-tenant generally has a right or authority to prevail over the express wishes of another, whether the issue is the color of the curtains or invitations to outsiders," Souter wrote for the majority.
Exactly.

Roberts said:
Roberts said the decision "apparently forbids police from entering to assist with a domestic dispute if the abuser whose behavior prompted the request for police assistance objects." Although Roberts has disagreed with other rulings since joining the court in September, it was the first time he wrote his own dissent.
Souter countered:
Souter called Roberts' concerns about domestic violence a "red herring."

"This case has no bearing on the capacity of the police to protect domestic victims," Souter wrote. "The question whether the police might lawfully enter over objection in order to provide any protection that might be reasonable is easily answered yes."
Precisely.

Wow. Me and David Souter agreeing.

Go figure.
 
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I haven’t read the ruling, but from the excerpts Roberts appears to have a better understanding of the law.

For example, "co-tenants" do not have the same rights as "joint tenants" or "tenants by the entirety". I’ll bet that you and your wife own your home as TbyE, don’t you Bruce? In that instance, the majority is right, but in the instance of "co-tenants" (like college roommates, or siblings who own property together), one should be able to give permission in lieu of all giving permission.

OK, so there’s my meaningless QandO nit for the day.

Move along.
 
Written By: MichaelW
URL: http://
I’m not a lawyer, Michael, so I will readily admit that my opinion isn’t a legal one. But in terms of how I view rights, I consider the decision to be a good one.

Equal individual rights is a foundational concept here, and, in my opinion, the basis of our freedom. I think this ruling reinforces that foundation and thus I find it amenable to that concept.

I’d also point out that I find nothing within that concept of rights that allows for someone to give permission to search my possessions (or not) simply because of the legal manner in which the space I live is defined or my relationship with the other person is legally characterized.
 
Written By: McQ
URL: http://qando.net
I suspect that this decision will come back to haunt the Court.

What happens when a homeowner has a long-term "guest"? How long is long-term? When does "residency" attach? What happens when the police ask the person who opens the door if they can search the house, but don’t inquire as to other people living there? What if, upon asking, they are misinformed?

How many times will the debate over such questions impoverish plaintiffs and defendants, and enrich attorneys and judges, while justice goes wanting?
 
Written By: cthulhu
URL: http://
I’d also point out that I find nothing within that concept of rights that allows for someone to give permission to search my possessions (or not) simply because of the legal manner in which the space I live is defined or my relationship with the other person is legally characterized.
I don’t really disagree with you. However, those legal distinctions between types of property owners are important and do matter. If I freely choose to own property with another in such a way that allows that person to make decisions for regarding that property, I should be made to suffer/enjoy the consequences of my decision. That’s the other side of the "freedom" coin.

Without reading the opinion though, I can’t say much about it, and I really shoudn’t comment at all (see, I told you my post was meaningless).

In reality, getting a warrant in such a situation would seem to be ridiculously easy, and often "exigent circumstances" arise that obviate the need for a warrant altogether (e.g. police have a reasonable belief that evidence will be destroyed).
How many times will the debate over such questions...enrich attorneys...
What? You gotta problem with that? Just what kind of evil monster are you? I would’ve thought that an entity who lies dead but dreaming would be the (un)natural ally of attorneys.

As a point of fact, it is extremely rare that cases such as the instant one "enrich attorneys". They are often taken on a pro bono basis since the clients are poor and unable to pay for Supreme Court litigators.
 
Written By: MichaelW
URL: http://
I’m surprised Roberts threw out the "domestic violence" red herring — something like that could clearly fall under the exigent circumstances exception. If police hear a gunshot from a house, they don’t have to get a warrant to investigate; similarly if police get called on a domestic violence dispute and see a woman with a black eye in the background begging for help, they don’t have to walk away.

As for the basic premise, I think its a closer question than you give credit. If my wife invites someone over and I object, I can’t have the person ejected for trespass. Similarly, if I say "I don’t want the living room to be blue" and I come home from a trip and she’s painted it blue, I can’t sue her for conversion (or trespass to chattels or whatever). By living together, we give up some of our absolute right to the bundle of sticks that is property rights; I don’t see why we would maintain an absoulte veto power of a spouse’s right to consent to a search of the premises that she owns a part of.

Ultimately, I think this a question where people can reasonably disagree, but I don’t think weighing one person’s property interests over another’s privacy interests (which I DO think you sacrifice to some degree by letting another person in your home) is a pre-ordained conclusion.
 
Written By: Sean
URL: http://www.myelectionanalysis.com
Once again, when it comes to the rights of an individual vs. the power of the government, in this case the Fourth Amendment right to be free from unreasonable search and seizure, the "liberals" line up on the side of the individual and the conservatives line up on the side of the government. Time and time and time again this is the line up when it comes to these kinds of cases. And yet my bet is that we will continue to hear the rhetoric that liberals are pro-government and conservatives are pro-individual rights. Go figure.
For example, "co-tenants" do not have the same rights as "joint tenants" or "tenants by the entirety". I’ll bet that you and your wife own your home as TbyE, don’t you Bruce? In that instance, the majority is right, but in the instance of "co-tenants" (like college roommates, or siblings who own property together), one should be able to give permission in lieu of all giving permission.
As Souter said, property law influences, but doesn’t control the issue. There is no rational reason to distinguish in this situation. Why should a roommate be able to give permission to search, even if the other roommate objects (over a common area of course) and the same not be true when it is a husband and wife?
What happens when a homeowner has a long-term "guest"? How long is long-term? When does "residency" attach? What happens when the police ask the person who opens the door if they can search the house, but don’t inquire as to other people living there? What if, upon asking, they are misinformed?
The homeowner has rights superior to a guest, and thus can permit a search over the guest’s objection. When does a guest become a resident with rights equal to those of the other residents? That is a factual question - what are the expectations of the parties? Is there a lease? Who is paying for what?

The rule in today’s case applies to cases where one resident is present and actual objecting. It does not apply to absent co-residents. It does not require police to inquire. Finally, if the police are misinformed, but are acting reasonably and in good faith, they may enter, even if the person giving consent did not have authority to permit a search.

Oh, and by the way, the defendant in the case was an attorney.
 
Written By: mkultra
URL: http://
I agree with Sean, especially in the case of joint ownership as in marriage. Depending on the state, everything that is mine will be ours once we get married in May. Everything including the building. And the law generally accepts that she can make decisions for me on my behalf, such as if I’m incapacitated by an injury. So I don’t really have a problem with my wife letting the cops inside without my consent if I am not present. I am present, I would hope she defers to my wishes or that the cops are forced to take the route with the most freedom.

Yes things get hairier if we’re talking about me and a roommate. "Our" stuff is really a collection of theirs and mine contained in a dwelling that is ours. I suppose the proper course here would be to allow entrance only into areas we share in common (or that are "owned" by the other person like a bedroom).

Honestly, there is a horrible can of worms here. We haven’t heard the last of this case. People are going to invite police officers into their homes without all residents present and capable of giving consent. What happens if they deny consent at a later date? I’m sure lots of parents will get their kids in trouble and the kids will claim that they have a legal right to "their own space" and cite some crap family law to prove it.
 
Written By: Jeff the Baptist
URL: http://jeffthebaptist.blogspot.com
What about if the other person isn’t home to say "no?" Do they have to call them, or wait for them to get home?
No. "[T]he consent of one who possesses common auhority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared[.]" United States v. Matlock, 415 US 164, 170 (1974).
People are going to invite police officers into their homes without all residents present and capable of giving consent. What happens if they deny consent at a later date?
Too bad I guess - don’t live with people whom you don’t trust.

 
Written By: mkultra
URL: http://
What if 2 out of 3 say "yes" but one says "no" ?
 
Written By: Neo
URL: http://
The problem with "Not until all who live there agree." is, what if "all who live there" aren’t, y’know, available to GIVE that consent at the time? What if they’re out shopping?

It is a common sense question, y’know, and one that you need to be able to answer in a way that works in the real world.
 
Written By: Dave
URL: http://
Nonsense. Sharing space in a home doesn’t abrogate one’s rights because someone else agreed to allow police in.
Well, it does limit those rights somewhat, to the extent that the other person can do things in/with that home that you don’t want or like. I mean, they have rights too, don’t they?
That sort of argument begins with the premise that the person consenting to the search has superior rights to the other.
And yours is somewhat dependent on the idea that the non-consenting person has superior rights to the consenter(in dealing with common areas). As Roberts’s dissent stated "sharing space necessarily entails a limited yielding of privacy to the person with whom the space is shared, such that the other person shares authority to consent to a search of the shared space."

Now, in the policy area of this, I think that if there’s a "tie" when it comes to rights (one says yes, one says no), that the burden or the presumption is in favor of privacy and keeping the police out.
 
Written By: jinnmabe
URL: http://
Neo does raise an interesting point. What does McQ’s position that "if one says no and one says yes, no wins" extend to if there are N (where N > 2) people?

I can’t guess accurately, because McQ didn’t phrase his post in such a way that I could extrapolate to either "over 50% is required" or "any objection means it’s wrong" (especially since the Souter words he agrees with speak only of "one tenant" vs "another", not the decision of a group or three or more), and I’m loathe to pretend I can read McQ’s mind.

My position is less clear than that.

I’m quite sympathetic to a majority-rule case for the N-tenants question (if 2/3 or 5/9 or whatever say "yes", then yes, and likewise "no"), but I’m not at all comfortable with a "one no means no" for large values of N.

(Imagine a big house with six people; why should one "no" preclude a general search? I could easily imagine the "no" precluding a search of that individual’s private area of the house, but common areas?

I don’t see a strong constitutional basis for it, especially since there is no privacy in a common area by definition; it’s common to the household and thus I can’t see one person’s privacy rights covering it if the rest of the household sees no objection.

At very least there’s no slam-dunk obvious case that it’s an unreasonable search. It sounds, in fact, very reasonable indeed.)

 
Written By: Sigivald
URL: http://
PS. Congratulations to mkultra for, apart from the gratuitous and not strictly accurate first paragraph of his first post, making sensible points without partisan stupidity.

("Once again, when it comes to the rights of an individual vs. the power of the government, in this case the Fourth Amendment right to be free from unreasonable search and seizure, the "liberals" line up on the side of the individual and the conservatives line up on the side of the government." ... like in Kelo, where Thomas, Rhenquist, and Scalia opposed government power? Or Raich, where Thomas and Scalia again joined O’Connor in opposing [Federal] government power?

And where the Conservatives at, say, National Review opposed the Government position? Evidently "once again" means "sometimes, when it’s convenient to me to forget the opposite cases"?

If you wish to talk "liberals protecting individual rights" vs. "conservatives increasing government power", you also have to ignore the Second Amendment and everything relating to it.

How about we just accept that Liberals and Conservatives (broadly taken and glossing over their internal differences) both value individual rights and government power, and simply have different preferences (again, broadly, as The Nation liberals and New Republic liberals are no more than same than National Review conservatives are the same as Weekly Standard conservatives) for which realms should get which preference.)

 
Written By: Sigivald
URL: http://
I think several of you are misinterpreting the ruling (Jeff, Toy, Neo, Dave). The ruling was not that the police need the consent of all tenents to conduct a search without a warrant, but rather that a single tenant can veto the search.

One "no" does mean "no". If you don’t like it, get a warrant. The reasoning for this is the Fourth Amendment - I don’t understand why this went to SCOTUS in the first place, and I am very bothered by the fact that it was only a 5-3 decision.
 
Written By: Wulf
URL: http://www.atlasblogged.com
From Judge Souter

"There is no common understanding that one co-tenant generally has a right or authority to prevail over the express wishes of another, whether the issue is the color of the curtains or invitations to outsiders," Souter wrote for the majority.

What gives the "no" vote "the right or authority to prevail over the express wishes of another"?

JJ
 
Written By: John Johns
URL: http://
John Johns,

The Fourth Amendment does.

 
Written By: Wulf
URL: http://www.atlasblogged.com
"The Fourth Amendment does."

Actually, no, the Fourth Amendment only prohibits "unreasonable" searches. Whether a search is reasonable where one of the owners of the property has consented but not the other is a matter about which reasonable (for lack of a better word) minds can disagree — it in no way is a "how did this even get to the supreme court" kind of case, and in no way is one I’d expect to see a 9-0 vote on.
 
Written By: Sean
URL: http://www.myelectionanalysis.com
Wulf said,
"The ruling was not that the police need the consent of all tenents to conduct a search without a warrant, but rather that a single tenant can veto the search."
If one tenant can veto the search... then, effectively, the cops need to make sure there’s no possibility any tenant will say, "But I didn’t give permission, and I refuse to give it now!" before they search without a warrant. In other words - the police need the consent of all tenants.

Congratulations, you negated yourself in the confines of the same sentence.
 
Written By: Dave
URL: http://www.thepatriette.com/dangerous
Sean, you do not have the right to consent to me being searched against my will and without a warrant. That is plainly unreasonable. One citizen may not waive the rights of another.

It is only by a gross stretch of interpretation that one can read the Fourth Amendment to mean that it is moral and just to search my home against my will without a warrant.

As usual, I enjoyed Kip’s analysis.
 
Written By: Wulf
URL: http://www.atlasblogged.com
... like in Kelo, where Thomas, Rhenquist, and Scalia opposed government power? Or Raich, where Thomas and Scalia again joined O’Connor in opposing [Federal] government power?

And where the Conservatives at, say, National Review opposed the Government position? Evidently "once again" means "sometimes, when it’s convenient to me to forget the opposite cases"?

If you wish to talk "liberals protecting individual rights" vs. "conservatives increasing government power", you also have to ignore the Second Amendment and everything relating to it.
Raich? Huh - give me a break. Clinton - you know, that violator of individual rights, took the position that states could enact laws for the use of medical marijuana. It was Bush who went after the sick people, saying that the State of California had no right to pass a law legalizing the use of medical marijuana. If it were up to the liberals, the case would not have gotten there in the first place. After all, it is the liberal states where individuals are being empowered with the right to medicate with medical marijuana. You ain’t gonna see any medical marijuana laws in Utah and South Carolina. And not to put too fine a point on it, but four of the six justices in the majority in Raich were GOP appointees.

The better case is the assisted suicide case. Who voted against the rights of individuals to commit assisted suicide? You got it - Scalia, Thomas and Roberts. And again, who prosecuted the case? The Bush administration. And what was Clinton’s position? The opposite. He was against legislation that would punish doctors who assisted in suicides.

So lets tally - Clinton - for medical marijuana and assisted suicide. For the rights of individuals against the government. Bush - the opposite. So who’s the nanny?

And, and while we are on the subject, how many times have the "liberals" on the Supreme Court ruled for the government in a Second Amendment case? Care to hazard a guess?

Although Jon still seems to be a victim of it, the myth that conservatives are pro-individual and that liberals are pro-government is dissolving away. Today’s decision was simply one more reason why.



 
Written By: mkultra
URL: http://
Dave, you are being sophistic. This ruling does not say that the police need to contact each and every tenent, though frankly that kind of limitation of police power would not bother me. Because they could always get a warrant.

If my wife allows the police into my home to search it while I am at work, I do not see that to be contrary to this ruling. I am reading several legal analyses that back this up. The justices have only said that if I deny the police entry, my wife cannot override it - get a warrant. The "no" trumps the "yes", but only if it is played.

I don’t understand why people are so reluctant to make the police get a warrant when there are no exigent circumstances.
 
Written By: Wulf
URL: http://www.atlasblogged.com
If one tenant can veto the search... then, effectively, the cops need to make sure there’s no possibility any tenant will say, "But I didn’t give permission, and I refuse to give it now!" before they search without a warrant. In other words - the police need the consent of all tenants.
Would that it were so. But the Court didn’t overrule Matlock today. Sorry Charlie, but you are wrong.
 
Written By: mkultra
URL: http://
One "no" does mean "no". If you don’t like it, get a warrant.
The key line in all of the comments is above.

I’d only modify it to say, "one ’no’ means you get a warrant". That’s fair as far as I’m concerned. I don’t like open free searches. I like warrants which state explicitly what the government is looking for and why.
 
Written By: McQ
URL: http://qando.net
Wulf,

I 100% understand your analysis and indeed if pressed to make a decision, I probably agree with it. Go back and re-read my post(s), the only Justice I actually criticize in any way is Roberts. My only point is that it is no means a no-brainer; it isn’t something where the Fourth Amendment text or precedent are clear.

Obviously, I can’t consent to a search of your person. Similarly, a guest can’t consent to a search of my house. But there is a distinction in my mind when I have an ownership interest in the property, and may have my reasons for wanting the search. My *only* point is that there are two different points of view here with regard to how the property should be treated, and it does not strike me as *obvious* that the non-consenting party should necessarily trump the other party.
 
Written By: Sean
URL: http://www.myelectionanalysis.com
I’m amused to find that justice Roberts made the same points I had in mind, albeit much more eloquently and with appropriate references to past precedent. It can be read at http://scotus.ap.org/scotus/04-1067p.zd.pdf

To my mind, the quote that best articulates my concern is:
"Rather than draw such random and happenstance lines— and pretend that the Constitution decreed them—, the more reasonable approach is to adopt a rule acknowledging that shared living space entails a limited yielding of privacy to others, and that the law historically permits those to whom we have yielded our privacy to in turn cooperate with the government. Such a rule flows more naturally from our cases concerning Fourth Amendment reasonableness and is logically grounded in the concept of privacy underlying that Amendment."

...but the entire 17-page dissent is well worth reading, if only for the schooling it contains.
 
Written By: cthulhu
URL: http://
Fair enough, Sean - I can see where you are coming from. I appreciate your spelling out your point more slowly for me.

When I read that it was 5-3, I couldn’t imagine why, and I looked forward to a dissent that would draw on some unexpected aspect of the law... but Roberts’ point is so weak that I am left wondering how this was so split. It seems pretty clear to me, after all.
 
Written By: Wulf
URL: http://www.atlasblogged.com
The only point of Roberts’ dissent that I found particularly weak was when he dragged in a reference to domestic violence. When discussing legal consistency, history and context, his arguments seemed well framed in my eyes. He also struck me as really understanding the practical effects of the majority’s ruling.
 
Written By: cthulhu
URL: http://

 
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