A Stitch in Haste

I'm a bit late on this, but I wanted to weigh in on another case currently before the Supreme Court, Georgia v. Randolph, No. 04-1067. SCOTUSblog provides a succinct summary of the case:

Police arrive at a home shared by a husband and wife who are in the midst of an argument. They don't have a warrant or probable cause to search the house. They ask the husband for his consent to a search, and he says no. They ask the owners of the house for their consent to a search, and they both say no. Finally, police turn to the wife and ask for her consent to search the house. She says yes. Does it violate the Fourth Amendment for police to search a home on the basis of consent in these circumstances?

I can't give this case the analysis it deserves, but as a libertarian I of course side with the defendant and believe that no proper consent was given and the search therefore violated the Fourth Amendment.

Some hasty stitches:

--Although hardly an ironclad rule, there is a general principle in the law that one person may not waive the constitutional rights of another. If a parent cannot waive her child's rights, then how can a wife waive her husband's?

--Much is being made by some commentators of the common law and its rules for "joint tenancy" (i.e., joint ownership) of property. Fine, but the common law must never be deemed to supersede the Bill of Rights. Supplement it, perhaps, but never supersede it.

--What's so terrible about making police get a warrant instead of stretching and straining to concoct "consent" from the owners and occupants of property?

--Arguing reductio ad absurdum, imagine the nonsensical results a "unanimity of refusal rule" could entail. Could two parents lose their Fourth Amendment rights because their 18-year old child chooses to consent to a warrantless search of the family home? If police arrive at a fraternity house without a warrant and 49 of 50 members refuse consent, can one lone member override them? Can landlords draft residential leases that authorize them to consent to searches of tenants' apartments even when the tenants are present and are refusing consent?

--Finally, the lenity doctrine requires that any "toss-up" in criminal law be decided in favor of defendants. Similarly, the "presumption of liberty" theory of constitutional interpretation demands that the Bill of Rights be construed in the most expansive way possible. Either canon demands that unanimity of consent, rather than unanimity of refusal, should be the rule for warrantless consent searches.

SCOTUSblog has more on the Supreme Court's recent oral arguments in Georgia v. Randolph here and here. Other thoughts at Concurring Opinions, CrimLaw.

The Supreme Court today upheld a rudimentary legal concept: one person cannot waive the rights of another --

The Supreme Court ruled 5-3 on Wednesday that it is unconstitutional for police without a warrant to search a home, if two occupants are present at the time and one consents but the other objects. The search may not go forward in the face of that objection, but the occupant must be present to have the objection count, the Court said in a decision written by Justice David H. Souter.

The case is Georgia v. Randolph (04-1067). I blogged about it previously.

Now this is of course a Fourth Amendment search-and-seizure case, and in some respects it's a limp-wristed decision (the police will now simply manipulate the circumstances whenever possible to get the potential objecting resident "away from the door").

But still, the underlying bedrock principle has been vindicated: one person may not waive the rights of another.

Something that the apologists for unbridled majoritarianism might want to keep in mind when they claim that rights should be subject to majority vote. There are some lines that the police — and the "will of the majority" — should simply not be allowed to cross.

There are six different opinions — the ruling, two concurrences and three dissents. SCOTUSblog has all the links.

POST SCRIPT: Read Justice Stevens' two-page concurrence smacking down Justice Scalia's "original meaning" brand of interpretation (Scalia responds to Stevens here). Is Stevens also suggesting that there should be a sort of "Miranda warning" for consent searches? "You have the right to refuse me entry, since I do not have a warrant..." I could certainly live with such a requirement!