The Fourth Amendment and Third-Party Consent

In some good news–get it while you still can (i.e. before the GOP gets another appointment)!–today the Supremes ruled in Georgia v. Randolph that in ordinary circumstances one party cannot give consent to a warrantless search of the quarters of another party when the other party is present and refuses to consent. As Julian Sanchez notes, this is actually a quite narrow right–it would seem that a warrantless search of your living space can be consented to by another party if you’re not there, for example. Which makes it all the more striking that the decision was only 5-3, and of course had Alito participated it would have been 5-4. In a highly unsurprising development, Chief Justice Roberts signed on to the current belief of far too many federal judges that the War on (Some Classes of People Who Use Some) Drugs should act as a sort of solvent that dissolves any Fourth and Fifth Amendment rights that might be inconvenient to the state’s power. Particularly specious is Roberts’ claim–echoed even more disingenuously pursued by noted supporter of women’s rights Antonin Scalia–that affording even this limited protection would interfere with the ability of the police to protect victims of domestic abuse. As Justice Souter points out, such circumstances would obviously permit the police to intervene irrespective of whether the abuser consents:

But this case has no bearing on the capacity of the police to protect domestic victims. The dissent’s argument rests on the failure to distinguish two different issues: when the police may enter without committing a trespass, and when the police may enter to search for evidence. No question has been raised, or reasonably could be, about the authority of the police to enter a dwelling to protect a resident from domestic violence; so long as they have good reason to believe such a threat exists, it would be silly to suggest that the police would commit a tort by entering, say, to give a complaining tenant the opportunity to collect belongings and get out safely, or to determine whether violence (or threat of violence) has just occurred or is about to (or soon will) occur, however much a spouse or other co-tenant objected. (And since the police would then be lawfully in the premises, there is no question that they could seize any evidence in plain view or take further action supported by any consequent probable cause Thus, the question whether the police might lawfully enter over objection in order to provide any protection that might be reasonable is easily answered yes. [cites omitted.]

This is, of course, obviously correct; one person being in potential physical danger obviously provides the exigent circumstances necessary for police to enter a domicile and conduct a plain view search, and the attempt of the dissenters to bootstrap police powers that do not involve such circumstances from a spurious invocation of domestic violence should be rejected out of hand.

In addition, there’s an interesting concurrence by Stevens, noting the flaws in particular forms of “originalism” that purport to fix the Fourth Amendment’s meaning as it was understood in 1791, pointing out that changes in the common law conception of marriage would have a large impact on questions of 3rd party consent. It’s always useful to be reminded that the claim of “originalism” to produce determinate results is quite clearly bogus, which would be true even if the methodology was applied rigorously and consistently, which of course Scalia does not.

…MORE PERSPECTIVES: Orin Kerr explains the competing positions in terms of his four-part typology of Fourth Amendment interpretation; SCOTUSblog, as most interested parties will know, has detailed analysis; and Fantasy Life explores some broader implications of the doctrinal fight.