Thursday, March 23, 2006

Dissent. Party of 3?

Our new Chief Justice finally came out of the closet yesterday to write his first dissent in Georgia v. Randolph, a case decided by a 5-3 margin.

In Roberts' world, the Fourth Amendment is cool with the police entering your home without a warrant over your objection, should your spouse consent. Five Justices, relying more heavily on social norms than legal doctrine, thought otherwise. I think Souter, writing for the majority, could have found a better legal foundation than what he presumes the results of an American straw poll would be. But, I think the holding is right.

Roberts drew heavily on precedent from Matlock; a case which held that police entry into a home without a warrant was reasonable when the tenant present consented to a search that was only later objected to by a housemate away at the time.

Personally, I don't think there is as much inconsistency between the new Randolph rule and co-occupant Matlock consent in the absence of the objecting party as does CJ Roberts. Matlock was decided on the basis of whether a police officer could objectively believe that the individual had the authority to consent to the search of the house. But, if there is a party present, like in Randolph, that declines the entry, I don't see how an officer could reasonably believe that he has been given permission to enter the premises.

I find the administerability issue to be the stronger ground in his opinion. The majority's rule draws a blurry line, since it still permits the entry given exigent circumstances (e.g., as in a case of domestic violence). The majority's rule puts the police in the position of either risking a Fourth Amendment violation on a misguided hunch or idly sitting on the sidelines to wait for a warrant while trouble is brewing. In the end though, Roberts' rule would constrain privacy at the expense of what he views as a better policy and the risks we assume in sharing our living space with someone. I don't agree the Fourth Amendment reasonability requirement is so easily balanced away.

Regardless, I sure think the man put together a nice piece of acerbic prose.

"The majority reminds us, in high tones, that a man's home is his castle, but even under the majority's rule, it is not his castle if he happens to be absent, asleep in the keep or otherwise engaged when the constable arrives at the gate. Then it is his co-owner's castle."

That's palpable sarcasm, mocking language, and five commas in a sentence for those keeping score at home.

2 Comments:

At 7:57 PM, Anonymous Paul said...

Orin Kerr has an interesting wrap up of the various perspectives on the 4th Amendment and how this opinion brings "an unusually clear demonstration" of them:
http://www.orinkerr.com/2006/03/22/social-norms-and-fourth-amendment-protectionan-initial-comment-on-georgia-v-randolph/

 
At 7:25 PM, Blogger SLS2L(@YLS) said...

That's a great take on 4A jurisprudence. It kind of reminds me of the way Lessig might characterize the conception of rights.

4A rights = f (theory)

 

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