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Univ. of San Diego School of Law

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Wednesday, March 22, 2006

SCOTUS Limits Police Search Power

Yesterday, in Georgia v. Randolph (04-1067)the Supreme Court ruled 5-3 that it is unconstitutional for police without a warrant to search a home, if two occupants are present at the time and one consents but the other objects. The search may not go forward in the face of that objection, but the occupant must be present to have the objection count.

"We have to admit we are drawing a fine line," Justice Souter wrote for the Court, but added "we think the formalism is justified" and that it will be easier to enforce in practice. Thus, the Court held, if the individual who may be at legal risk of prosecution and thus does not want the police to enter "is in fact at the door and objects," the other occupant's consent to search will not suffice. But, Souter added, if the objector is nearby, and not at the door, an objection by him will not block the search. The Court stressed, though, that police may not take a potentialy objecting tenant away from the home in order to be able to make the search with the other occupant's consent.

Chief Justice Roberts, in his first written dissenting opinion, said the majority fashioned a rule that "does not implement the high office of the Fourth Amendment, but instead provides protection on a random and happenstance basis, protecting, for example, a co-occupant who happens to be at the front door when the other occupant consents to a search, but not one napping or watching television in the next room....The cost of affording such random protection is great, as demonstrated by the recurring cases in which abused spouses seek to authorize police entry into a home they share with a non-consenting abuser." More. . . [Mark Godsey]

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Search and Seizure, Supreme Court | Permalink

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