Comments on: Court limits search power

By: Just_Blind

Just_Blind — Fri, 07 Jul 2006 16:17:42 +0000

Eric, the court reasoned that the Fourth Amendment is not tied to property law. However, for one to enforce their Fourth Amend. rights, one must demonstrate a reasonable expectation of privacy by tying the expectation to a socially accepted norm or property law. It works in one direction, but not the other – i.e. one can not use property law to overcome another’s Constitutional given right, but one can use property law to assert a reasonable expectation of privacy, and thus their constitutional right. In this case, however, the expectation was tied to socially expected norms, which explains the lengthy discussion and comparison to admitting a guest. That, at least, is what I believe the court sees. Hope this is helpful.

By: jim

jim — Tue, 28 Mar 2006 04:21:32 +0000

Also let me add the precedent case of US V. Matlock

By: jim

jim — Tue, 28 Mar 2006 00:41:32 +0000

I disagree with the courts ruling that therre is shared privacy to the house. With the co-inhabitant
gone away from the house the wife has the right to allow the search.

first of all the drug possesion is illegal and the wife should turn in her husband for putting her and her child in an unhealthy environment with all the drugs.

The house is her property and should be able to consent to the search if her husband was not present at the time. it would be different if the husband was present and contested the search.

By: Eric Rasmusen

Eric Rasmusen — Mon, 27 Mar 2006 01:12:05 +0000

I’ve blogged on Georgia v. Randolph, in connection with its seeming holding that one of two concurrent owners of a house can block entry by police against the desire of the other owner, while under property law generally he cannot block entry by anybody else in the world that the other owner wants to let in (in fact, the other owner can even lease out the common premises to some obnoxious third party and keep the rent money, so long as the first owner can still use the property too). My blog’s point is that this shows the amazing, self-satisfied, ignorance of all 8 of the Supreme Court justices (9 if we count O’Connor) on the subject of property law. Does anyone have any thoughts on that point? (as opposed to the broader point of whether Georgia v. Randolph was rightly decided) Or any good cases on use rights of cotenants?

See http://www.rasmusen.org/x/2006/03/25/georgia-v-randolph- property-law-and-con-law

By: Adamos

Adamos — Sat, 25 Mar 2006 12:04:59 +0000

Perhaps Georgia should have conceded that the warrantless search was unlawful and argued that the evidence seized was not the product of this unlawful search, but was actually the product of the co-occupant’s testimony to the police and the consequent warranted search. They would have to show that the initial, unlawful search was a harmless error, i.e. that the warrant would have been granted on the basis of the co-occupant’s testimony alone, and not the policeman’s observation of the powdery straw.

Just an idea.

By: Tommy

Tommy — Fri, 24 Mar 2006 17:31:17 +0000

The 4th amendment does not address assaults against the rights of co-tenents by co-tenents. It addresses the state’s relationship to the tenent. Thus whatever the co-tenent does is her business, unless she is an agent of the state. Its not even close to the same interest being protected.

We could, of course, get rid of judges drawing lines by getting rid of judicial review. But as long as a judge is determing the rights of Americans, either by the standard of eigteenth century englishmen or today’s Americans, drawing lines is thier job — as “arbitrary” as the line drawn by the 4th amendment.

By: Ben Kennedy

Ben Kennedy — Fri, 24 Mar 2006 17:01:45 +0000

danceswithtrout has a point. The full Souter quote:

The co-tenant acting on his own initiative may be able to deliver evidence to the police, Coolidge, supra, at 487-489 (suspect’s wife retrieved his guns from the couple’s house and turned them over to the police), and can tell the police what he knows, for use before a magistrate in getting a warrant. The reliance on a co-tenant’s information instead of disputed consent accords with the law’s general partiality toward police action taken under a warrant [as against] searches and seizures without one,” United States v. Ventresca, 380 U. S. 102, 107 (1965); “the informed and deliberate determinations of magistrates empowered to issue warrants as to what searches and seizures are permissible under the Constitution are to be preferred over the hurried action of officers,” United States v. Lefkowitz, 285 U. S. 452, 464 (1932).

I do not see why Justice Thomas is entirely correct in his analysis of the situation that Coolidge should be controlling. A co-tenant gave a police office information about a specific crime. The co-tenant leads the police into the room with the evidence. The police officer, rather than seizing the evidence, then obtains a search warrant based on the information received from the co-tenant. The formal 4th amendment search took place after the lawful warrant was obtained, based solely on the information given by the co-tenant and presumably an affidavit from the police officer regarding his observations as a guest of the co-tenant.

By: federalist

federalist — Fri, 24 Mar 2006 16:53:57 +0000

Dances–your second–isn’t that my point. If Souter gets bent out of shape about the co-tenant giving access to the property over the objection of the other, then, in the situation where the presence of the officer inside the house is acceptable for safety reasons, and the evidence is not in plain view, wouldn’t the co-tenant’s retrieval implicate the same interests as Souter was trying to protect in the first place?

Plus, it seems to me that, in the safety of the consenting co-tenant situation, as Roberts pointed out, the question is who should have to leave? Certainly, the police cannot be powerless to remove the “threatening co-tenant”. (Indiana has a law on this issue, by the way.) Then, once that happens . . . .

It just seems to me that Souter’s opinion creates a sliver of protection that is easily evaded and has very arbitrary results.

Of course, the Supreme Court has shown itself quite willing to deal with evasions that, in and of themselves, really don’t violate the constitution, e.g., Missouri v. Siebert.

Bottom line: I think that Souter’s opinion is another example of offended sensibilities of judges getting minted into constitutional rights.

By: danceswithtrout

danceswithtrout — Fri, 24 Mar 2006 04:13:15 +0000

First, the need to act on the spot to preserve evidence may justify entry/search is an exception to the warrant requirement. But the state did not argue that there was such an exegency here.

Second, Souter seems to imply that the officer could properly act under the plain-view exception if the consenting co-tenant produces the evidence on his own. (Souter doesn’t address the agency pickle directly, but he does include the language that the co-tenant “acting on his own initiative” can bring the evidence to the police.) Souter was referring to such evidence being used as the basis for a warrant application, not for an exigency exception. But the Court held in Coolidge that it is not incumbent on the police to close their eyes to items in plain view. So if the co-tenant produces the coke straw and the cop sees it, he’s got probable cause, yes?

By: Marc L.

Marc L. — Fri, 24 Mar 2006 02:25:21 +0000

Federalist, Adamos, funny you should mention the hypothetical of the co-occupant simply bringing the evidence to the police, since that is the factual basis for Coolidge, which in essence states that simply cooperating with the police does not constitute acting as their agent.

Moreover, this is precisely the case Thomas cited as controlling in the present case. His dissent rests in a different place altogether, since he throws out the whole "consent to general search" as utterly irrelevant, since after granting consent, Mrs. Randolph in fact led the officer directly to the contraband (in his view; Souter claims she simply led him to the room where it lay, whether in plain sight I do not know).

Along with Scalia's little slapdown of Stevens, it really was a rather bizarre set of dissents.

By: Tommy

Tommy — Thu, 23 Mar 2006 22:37:39 +0000

I don’t know about original intent, but I can’t imagine our forefathers allowing warrentless searches by the King’s men in the face of an objecting freeholder.

It seems that people always forget that there is a dignity interest to these rights (even if we don’t think the guy deserves much dignity).

By: Adamos

Adamos — Thu, 23 Mar 2006 22:22:46 +0000

Federalist, I thought the possibility of imminent destruction of evidence was an exigent circumstance, which is why I was couldn’t say for certain whether a warrant would be required. However, in the absence of such a circumstance, I think you’re right that it would be.

By: federalist

federalist — Thu, 23 Mar 2006 17:42:11 +0000

Adamos, how do the police make the search sans warrant? Probable cause is not an exigent circumstance.

By: Adamos

Adamos — Thu, 23 Mar 2006 17:10:34 +0000

Federalist, the sentence also allows for action supported by probable cause. If a co-occupant claimed that contraband was present, or if the presence of a non-contraband item in plain view suggested the presence of contraband elsewhere, then the police could make an intrusive search. Whether or not they would first have to take procedural action, such as obtaining a warrant, I don’t know.

I’m not sure about your hypothetical situation in which the co-occupant locates the contraband and places it in the plain view of the police. Since this rather specific scenario was not before the Court, it is not surprising that they do not specifically rule on it. However, it is hard to imagine how a co-occupant’s actions could render unconstituational the police’s actions. Of course, if the co-occupant’s actions were themselves unlawful (e.g. if the co-occupant broke into a locked room or container to obtain the contraband) and the poice did not intervene to stop him, we might end up in an awful legal pickle…

By: vnoahcampbell

vnoahcampbell — Thu, 23 Mar 2006 17:01:13 +0000

federalist, your comment seems non-unique to Randolph. could not the co-tenant engage in the behavior you suggest regardless of Randolph/ any other 4th amendment issue? for example, even if the police were standing at the door, being barred from entering by one tenant, the co-tenant could still grab the contraband and display it in plain view of the police at the door. this would not amount to an intrusive search by the police, nor would your scenario, but rather the act of a hostile co-tenant.