November 8, 2005

Court questions searches when spouses disagree

By James Vicini

WASHINGTON (Reuters) - Supreme Court justices appeared
closely divided on Tuesday on whether the police can enter a
home and seize evidence without a warrant when one spouse
consented to the search after the other spouse refused.

A majority of the justices appeared concerned that the
spouse giving the permission would override the wishes of the
other spouse and they questioned why the police could not get a
warrant instead.

But four justices, including Justice Clarence Thomas, who
rarely asks questions during arguments, appeared to support the
search. Justice Stephen Breyer cited the need for the police to
be able to investigate spousal abuse claims.

The case involved Scott Randolph, who had been charged with
cocaine possession. He moved to suppress the evidence against
him, which had been seized by the police during a search in
2001 of the home that he shared with his wife.

The wife, Janet Randolph, had called the police and asked
for them to come to the couple's house in Americus, Georgia,
because of a domestic dispute with her husband. The couple
previously had separated.

She told the officers that Randolph had been using cocaine,
which was causing the couple financial and other problems. She
said drugs were on the premises.

An officer asked if he could check the house and Randolph,
a lawyer, refused to give his consent. The officer then asked
the wife, who gave her approval.

In the bedroom, the officer saw a drinking straw and
suspected it had been used to ingest cocaine. The officer took
the straw and some white residue to the police station for

Thomas asked whether the case would be materially different
if the wife had run upstairs, grabbed the straw and gave it to
the police officer.

U.S. Justice Department attorney Michael Dreeben replied
that it essentially would be no different.

Later during arguments by Tom Goldstein, the attorney
representing Scott Randolph, Thomas said: "This was not an
uncabined search. That's my problem." He was referring to the
limited nature of the search.

Paula Smith, the Georgia senior assistant attorney general,
argued that a search of a residence should be allowed when one
occupant consents, even if the other occupant objects.

"How can you say that's acceptable," Justice Sandra Day
O'Connor said of a spouse overriding the wishes of the other

"It seems to me an odd proposition," Justice Antonin Scalia
said of allowing the search when the occupants disagree. He
said he would have thought the police would be excluded from
the home when a disagreement exists.

Justice Anthony Kennedy told Smith, "I don't see the
necessity for the rule you propose."

Several justices seemed to favor allowing the search.

Chief Justice John Roberts asked about a common room in a
dormitory, and nine people consent to a search while one person
objects. Goldstein acknowledged that a search in that situation
would be allowed.

Justice David Souter interjected, "There goes any
bright-line rule."

Breyer expressed concern that a rule against such searches
might prevent cases of spousal abuse from being adequately
investigated by the police. "That bothers me a lot," he said.

A ruling is expected by the middle of next year.