Georgia v. Randolph: So what do police do now?

Talk about a vague Supreme Court decision. The majority couldn't even state a rule clearly enough that they could say what would happen in this case if there were three tenants as opposed to the two tenants who were present for this case. The notion of having to wait for another case to determine what would happen under those circumstances must give police a lot of assurance on what to do. The one thing that I have to agree with Souter on is that the decision is indeed "drawing a fine line."

But Chief Justice Roberts was not persuaded. In his first written dissent in a criminal case since joining the court, the Chief Justice said: "The possible scenarios are limitless, and slight variations in the fact pattern yield vastly different expectations about whether the invitee might be expected to enter or go away." "Such shifting expectations," he wrote, "are not a promising foundation on which to ground a constitutional rule." . . .

Justice Souter, in alluding to the chief justice's complaint that the majority did not address what would happen if there were a third household occupant involved, said, "We decide the case before us, not a different one."

But both Justice Souter and the chief justice agreed that factual differences that might appear trivial to a layman, or the fruit of nothing more than pure luck, could be all-important in court.

Justice Souter wrote that "we have to admit that we are drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant's permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out."

Chief Justice Roberts saw the same possibilities, to his dismay. "What the majority's rule protects is not so much privacy as the good luck of a co-owner who just happens to be present at the door when the police arrive," he wrote.

Had the majority decided logically, the chief justice said, it would have found that, just as Mrs. Randolph could turn her husband's drugs over to the police, "she can consent to police entry and search of what is, after all, her home, too."


Blogger Eric Rasmusen said...

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

3/26/2006 9:08 PM  
Blogger John Lott said...

Excellent post, Eric. People should definitely follow your link. Thanks very much. You say it all when your write that: "its dissociation from normal law and the ignorance of its judges about it, its preference for highflown principles over practicality or good policy, and its use of ungrounded factual assertions about what people do and believe."

3/26/2006 9:29 PM  

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