James J. Kilpatrick

In May 2001, Scott and Janet Randolph were having, as a Georgia judge politely put it, "marital problems." According to the record, he was into cocaine and she was into booze. Finally she packed up their infant son and "a great deal" of her clothing and went home to her family in Canada. On or about July 4, she returned to their home in Americus. Two days later she called the cops. And so this legal tale began.

The constitutional issue is a recurring question of Fourth Amendment law. Over the past 25 years, eight federal circuits and 11 state supreme courts have tackled it. The U.S. Supreme Court last addressed it 30 years ago. The roots go back to Magna Carta.

Under the Fourth Amendment, the right of the people to be secure in their houses against "unreasonable" searches and seizures shall not be violated. You decide: Was this search "reasonable"? These were the underlying facts in Georgia v. Randolph , No. 04-1067.

In response to Janet's telephone call, two officers responded. She was distraught: She told the cops he was sniffing cocaine. He told the cops that she was nipping on a bottle. This did not improve her temper. Things bubbled from simmer to boil. In her wrath, she said drugs were on the premises. One officer asked Randolph if they could check the house for drugs. He said, emphatically, no. The officer then sought permission from Janet. Still sore, she not only agreed, she willingly led the officer to an upstairs bedroom. Have a look! Help yourselves! An array of drug paraphernalia was in plain view. Then, having consented, she repented. Too late!

Officers obtained a warrant and completed a thorough search. A grand jury indicted Randolph for possession of cocaine. He moved to suppress the evidence as a violation of his Fourth Amendment rights. Exactly a year ago, the Georgia Supreme Court granted his motion and vacated the charge. The state appealed to the U.S. Supreme Court.

In the Georgia court's view, where two persons have equal use and control of the premises at issue, one occupant's consent to search is not valid if the other occupant is physically present and objects. Randolph was and did. At Tuesday's oral argument, several justices appeared to be unpersuaded by the lower court's reasoning. Justice Stephen Breyer wondered "why the husband has more right to keep (the police) out than she has to let them in."

James J. Kilpatrick

James J. Kilpatrick has been reporter, editor, columnist, commentator, and briefly an adjunct professor of journalism.

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