Court weighs household privacy
on Nov 8, 2005 at 1:37 pm
Obviously fascinated by a simple social question — who controls strangers’ entry into a house when husband and wife disagree on granting permission, the Supreme Court spent a lively hour Tuesday poring over competing interests affecting domestic privacy. Although the Court seemed quite troubled about giving one spouse the right to override the wishes of the other, at least when police are at the door, it also displayed some pause over writing a constitutional rule that might go too far to keep the police out.
As is often true, the flow of the Justices’ questions and comments during Georgia v. Randolph (04-1067) made it seem that they were skeptical of one side’s argument when the lawyer making that argument was at the podium, but then their skepticism turned in a different direction when the other side’s lawyer was up, making predictions about outcome difficult.
One thing, though, emerged with crystal clarity: Justice Sandra Day O’Connor was a steadfast critic of the idea that, if both spouses are on hand when the police come to check out trouble, they can enter if the wife invites them in but the husband objects. “Is it the norm,” she asked a lawyer for the state of Georgia, “that it is okay to let a stranger in against the express wishes of a spouse, or of a co-occupant?…I’m not sure that’s socially acceptable.” And, she commented to a federal government lawyer: “This is not a matter of the law of property. Don’t we have to look at social policy and the rights of privacy?”
O’Connor’s strongly worded and emotionally charged comments might be of significance, if — as seems likely — the Court is deeply divided on how to decide the Randolph case. But her reaction may be entirely beside the point, if a new Justice joins the Court and takes O’Connor’s seat before that case is decided. That may well happen, since nominee Samuel A. Alito, Jr., could be on the Court early in the new year, and Randolph may not be decided before then. If O’Connor had held the deciding vote, the case probably would be ordered re-argued.
It is true, though, that O’Connor’s negative reaction was shared by a number of her colleagues, at least when Georgia’s senior assistant attorney general, Paula K. Smith, and Deputy U.S. Solicitor General Michael R. Dreeben were making their arguments.
Justice Antonin Scalia, for example, said to Smith: “Why do you assume it’s a reasonable expectation that, if two people live together and one wants someone to come in, but the other does not, that they may come in? The normal assumption is that, when one wants to exclude a person, that person would be excluded.” Justice Anthony M. Kennedy expressed concern about giving the benefit of the doubt when spouses disagree to the one who wants to invite police in; he suggested that, if there were genuine needs for the police to enter, other legal considerations — like “exigent circumstances” — might take care of that problem, rather than stretching the concept of consent to enter.
Smith was making the argument that, if one occupant shares common authority over a home, consent by that person to police entry should settle the matter, whether or not the other occupant is present and objects. Dreeben was making the argument that it devalues society’s interest in having people cooperate with police if one spouse wants to let officers in at a potential crime scene, but the other does not. That, he went on, also devalues the cooperating spouse’s individual right to protect her own interests.
Thomas C. Goldstein of Washington, D.C., the attorney for Scott Fitz Randolph, the spouse who objected to police entry at the invitation of his wife, contended that a rule giving one spouse the control over police entry into a home when both are present would attach a penalty to those who choose to live with another person.
Goldstein ran into some quite skeptical questioning from Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, David H. Souter and Clarence Thomas, who broke his usual silence to join in the questioning, at least briefly.
Roberts suggested that “it was a little academic to talk about an individual’s right of privacy” against police entry over that individual’s objection when people choose to live together on common property. “When you live with someone else, you compromise your right [of privacy] to that extent.”
Breyer went on at considerable length in expressing concern about ambiguous situations that might arise in the future, such as when a wife has been subjected to spousal abuse, and wants to allow police in to talk to her or to investigate.
Souter seemed troubled about allowing the husband to object to police entry when it is clear that the husband has reasons not to let the officers in. He said that prior Court rulings that allowed one person to consent to police entry could be turned into “silly cases” if the objecting occupant is allowed to bar entry to investigate that occupant’s possible role in crime.
Thomas raised a seeming objection to any rule limiting police entry if it would mean that a spouse, knowing that there was contraband such as illegal drugs in the house, went to get it and brought it to police. It should not be unreasonable, Thomas added, for a person to be able to lead police to evidence of a crime.
There is no timetable for the Court to decide the case, but it may take several weeks to do so.
(Disclosure: Attorney Goldstein is with the firm of Goldstein & Howe, the sponsors of this blog. The author of this post operates independently of the firm’s practice.)
