One of the problems with the overheated debate over the nomination of Samuel Alito is that it invariably leads to a vision of the Supreme Court as madly political and combative, conjuring up images of Antonin Scalia crouched behind the bench with a grenade pin in his mouth, while Stephen Breyer leaps onto a counsel table brandishing an Uzi above his head. Of course, nothing could be further from the truth. The justices are careful and respectful and thoughtful. Even during a double-espresso argument like this morning's in Georgia v. Randolph, their allegiances and ideologies are fluid and sometimes surprising. In fact, this morning the lineup doesn't follow conservative-to-liberal so much as which justices would trust their spouse with their cocaine stash and which would not.
In 2001, Dr. Phil being unavailable, police in Americus, Ga., were summoned to investigate a domestic disturbance between Scott Fitz Randolph and his wife. Mrs. Randolph told the officers that her husband was spending too much on cocaine. Then she consented to a search of the couple's house without a police warrant. Mr. Randolph returned home and demanded that the search stop. The cops searched anyhow and discovered, upstairs in a bedroom, part of a drinking straw with what appeared to be cocaine in it. That drug evidence led to a warrant, leading to more drug evidence, which led to Randolph's arrest for coke possession. As in many search-and-seizure cases, the issue today is a why-wasn't-this-case-decided-50-years-ago question: Can one occupant of a home grant the police consent to search, thus effectively vetoing the stated objections of the other?
A quick review of Fourth Amendment law: No unreasonable searches are allowed. Reasonable searches require probable cause and a warrant, except in cases of exigent circumstances. But cops don't need probable cause or a warrant if you consent to the search upfront. The big precedent today is a 1974 case, United States v. Matlock, in which the cops got permission to search a home by the alleged criminal's girlfriend, after her bank-robber boyfriend was arrested on the front lawn. Because Matlock wasn't in a position to object to the search, the Supreme Court analyzed the case as though he'd been absent and found that his girlfriend's consent was enough because she possessed "common authority" over the home.
Justice Sandra Day O'Connor leaps right in at Georgia Senior Assistant Attorney General Paula Smith and makes it clear that Mr. Sandra Day O'Connor does not have veto power at their house. She challenges Smith over the standard of what is "socially acceptable" to determine valid consent: "You think it's the norm that if a co-inhabitant of the house says it's OK to let a stranger in, against the express wishes of the spouse, that is socially acceptable?" When Smith replies that this is common, O'Connor retorts: "It may be common but I don't think it's socially acceptable."
Justice Anthony Kennedy is concerned about the scope of the search: "What if the wife says it's OK to come in and OK to look in her husband's top drawer?" Smith says that depends on whether he has "exclusive use of his top drawer," or whether, perhaps, "she has put some socks in them." Whether there is a man alive who allows his wife to tuck a few pairs of her socks into his top drawer is not explored.
Justice Ruth Bader Ginsburg says Matlock has no bearing on this case because this time the spouse refusing the search was present and objected. Justice Antonin Scalia adds that when two people are living together and one doesn't want someone to enter the premises, it's a reasonable expectation that the someone in question won't be allowed in. Smith offers the best response she has: "When you make a decision to share your premises with another, you lose your expectation of exclusive control."
Ginsburg wonders whether Randolph, who was a lawyer *, could have declined a search of his home office after his wife agreed to it. Smith replies that this depends on whether his wife consented to the search as his paralegal, or perhaps because she knew that he "stashed his cocaine in a file." Pragmatic note to lawyers: Stash your coke in the top drawer instead. The one without her socks.
Chief Justice John Roberts asks how "one person's views can be held hostage to the views of another." And Deputy Solicitor General Michael Dreeben, granted 15 minutes to argue on Georgia's side, responds that the wife has an "independent interest in disassociating herself from criminal activity."
Scalia wonders whether, even when you are not dealing with cops, the authority to let someone in trumps the authority to exclude them. "Does the tie always go to the party saying 'I want to let this person in'?" he asks, clearly remembering back to a little dust-up with Mrs. Justice Scalia over whether to have the Al Frankens over for lunch.
When Dreeben emphasizes that the law should always encourage cooperation with law enforcement, Kennedy retorts: "You keep saying that. But that policy is vindicated using doctrines other than consent." He's thinking of the warrant requirement, or the exigent circumstances exception, or the wait-till-your-husband-falls-asleep exception we'll get to in just a minute.
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.