Today In Sam Alito v. The Fourth Amendment
By Yesterday, the Supreme Court ruled that despite a 2006 holding that one person could not consent to a search while another resident refused consent, the police could conduct a warrantless search with the consent of one resident after another that refused consent had been removed from the property. To justify this result, perennial enemy of Amendments 4-8 of the Bill of Rights Samuel Alito decided to use a favorite technique of his colleague Antonin Scalia, the bad slippery slope argument:
The general rule, he said, is that any occupant’s consent is sufficient. The 2006 decision, he added, was limited to objections from people who were physically present. Expanding that exception after the objecting occupants were gone, even at the hands of the police themselves, he wrote, “would raise a plethora of problems.”
Among them, Justice Alito wrote, was how long the objection had to be respected. “A week?” he asked. “A month? A year? Ten years?”
Yes, this is a serious problem — if one resident refuses a search, then the police are just out of luck permanently. If only the framers of the Fourth Amendment had anticipated this issue and provided the state with some other mechanism that would permit a justified search without the consent of the resident of a dwelling!
In dissent, Justice Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor and Elena Kagan [and not Breyer, natch — ed.], wrote that “the police could readily have obtained a warrant to search the shared residence.”
“Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it, nevermind ample time to secure the approval of a neutral magistrate,” Justice Ginsburg wrote. “Suppressing the warrant requirement, the court shrinks to petite size our holding in Georgia v. Randolph.”
Check. Mate. And it’s worth noting as well Ginsbirg’s point that “[i]f a person’s health and safety are threatened by a domestic abuser, exigent circumstances would justify immediate removal of the abuser from the premises, as happened here.” And once there is no longer an exigent circumstance, if a resident doesn’t consent to a search, then the Fourth Amendment requires the police to obtain a warrant.