Dreeben says the Matlock rule, combined with the rule in Illinois v. Rodriguez (in which a co-inhabitant consented to a search while the alleged criminal was sleeping) means that even if the other co-occupant would have objected, their objections are constitutionally irrelevant.
Then a cloud opens up. From behind a burning bush, Clarence Thomas' voice booms: "Would this case be any different if the wife ran upstairs, grabbed the straw (with the coke in it) and gave it to the police?"
No, says Dreeben, who looks as surprised as the rest of us that Thomas has a voice.
So far, so good for Randolph. But when it's his turn, Randolph's lawyer is pummeled by the same justices who seemed to have been taking his side earlier. Thomas Goldstein runs headlong into Hurricane Roberts as soon as he stands to speak. The chief justice clearly is on the side of those who believe that marriage is for richer for poorer, in sickness and in health, and for ratting out the rat bastard with the drugs stashed in the bedroom. Roberts tells Goldstein that his concern about "privacy at the core of the home" is "academic ... if he's sharing the home."
Then Justice Stephen Breyer launches into a long colloquy about spousal abuse. He is worried about "ambiguous situations" in which abused women who would otherwise invite the police in to discuss the abuse will now be overruled by battering husbands. Goldstein tries to reassure him by explaining that this doesn't necessarily implicate spousal-abuse cases, but Breyer is not assuaged. Goldstein assures him that abused wives can still take police officers out onto the porch to talk. Nothing doing. Then Goldstein emphasizes that if the cops suspect actual abuse is going on, they can either search the home under the exigency exception or call and get a warrant, which takes all of five minutes. He ends on this constitutional plea: "The only thing Randolph can do to be secure in his home is not live with someone else."
This puts him again at the mercy of Roberts. "But when you live with someone else you do compromise your expectation of privacy," the chief justice says. Spoken like a man with small children and no locks on the bathrooms.
Souter—a man unencumbered by a wife who can't wait to show off his stash of Ben & Jerry's Cherry Garcia, or whatever might count for contraband in Souter-land—is similarly unsympathetic. He points out that under Goldstein's reading of the law, Matlock and Rodriguez—in which consent would have been obviously denied had it been sought—are reduced to "silly cases."
And Breyer, always sensitive to the subtle social cue, offers: "I don't know what the expectation of privacy is. … I've never been in a situation where one person says 'Stay out' … I'm a typical person." (Pause) "Well, I don't know. … But if it were a dinner party I'd stay away."
Goldstein responds that Mrs. Randolph allowed "an un-cabined search of the home." Again Justice Thomas speaks: "It was not an un-cabined search," he says. "She led the police to the straw."
Roberts asks whether two adult children living at home could give permission for a search. Goldstein says that under the new rule proposed by Georgia, even small children could give permission over a parent's objections. Leading Ginsburg to quip—as only a good Jewish girl might—"and so could a mother-in-law."
To my mind, this is not a hard case—and for the same reason O'Connor keeps hammering at this morning. Of course I accept that my expectation of privacy in my home was somewhat diminished the day I married my husband. But his "right" to invite the cops to search my underwear drawer can't possibly be as forceful as my constitutionally enshrined right to keep them out. Not when there are a dozen other ways for them to rummage around if the situation demands it. Georgia's view of this case—and apparently the view of the new chief justice—seems to be that a few underwear searches is a small price to pay for the joy of not living alone.