Interesting piece in the NY Times that spends a lot of time on Judge Roberts writing a testy dissent. What is more interesting is the following:
A Supreme Court decision on Wednesday in an uncelebrated criminal case did more than resolve a dispute over whether the police can search a home without a warrant when one occupant gives consent but another objects.***
Writing for the majority, Justice David H. Souter said the search was unreasonable, given the vocal objection of the husband, Scott Randolph. True, Justice Souter said, the court had long permitted one party to give consent to a search of shared premises under what is known as the “co-occupant consent rule.” But he said that rule should be limited to the context in which it was first applied, the absence of the person who later objected.
The presence of the objecting person changed everything, Justice Souter said, noting that it defied “widely shared social expectations” for someone to come to the door of a dwelling and to cross the threshold at one occupant’s invitation if another objected.
“Without some very good reason, no sensible person would go inside under those conditions,” he said.
“We have, after all, lived our whole national history with an understanding of the ancient adage that a man’s home is his castle,” Justice Souter said. “Disputed permission is thus no match for this central value of the Fourth Amendment.”
Justices John Paul Stevens, Anthony M. Kennedy and Ruth Bader Ginsburg joined the majority opinion, as did Justice Stephen G. Breyer, who explained himself in a concurring opinion notable for its ambivalent tone. Justice Samuel A. Alito Jr. did not vote, as he was not a member of the court when the case was argued.
The dissenters, in addition to Chief Justice Roberts, were Justices Antonin Scalia and Clarence Thomas. In his opinion, the chief justice took aim at the majority’s description of social custom, as well as its reliance on that description to reshape “a great deal of established Fourth Amendment law.”
Every lower federal court to have considered the issue, as well as most state courts, had concluded that one party’s consent was sufficient. The Georgia Supreme Court, in its 2004 decision that the justices affirmed, was in the minority, ruling in this case that the evidence of Mr. Randolph’s cocaine use was inadmissible.
“The fact is that a wide variety of differing social situations can readily be imagined, giving rise to quite different social expectations,” Chief Justice Roberts said. For example, he continued, “a guest who came to celebrate an occupant’s birthday, or one who had traveled some distance for a particular reason, might not readily turn away simply because of a roommate’s objection.”
Noting that “the possible scenarios are limitless,” he said, “Such shifting expectations are not a promising foundation on which to ground a constitutional rule, particularly because the majority has no support for its basic assumption — that an invited guest encountering two disagreeing co-occupants would flee — beyond a hunch about how people would typically act in an atypical situation.”
The right wing of the Republican party has sold the libertarian/centrist wing of the party a bill of goods, and the modern ‘conservatives’ are clearly nothing more than statists who, rather than redistributing wealth like their brethern on the left, instead have decided that the state must have excessive rights in order to ‘protect’ us all from whatever the imagined fear du jour might be. Meanwhile, no one is left protecting us from the religionists and the the state itself.
In the new Republican era, only fetuses , tax shelters, and ‘traditional’ marriage deserve protection. According to the actions of the current Republican party, the rest of us need to be wiretapped, monitored, have our homes inspected for whatever reason without warrants, and are incapable of making decisions on our own. My 20 year affair with the Republican party is coming to an end. I am not voting for any Republican in 2006 at any level, and I will be hard pressed to vote for this party in 2008- unless, of course, Cindy Sheehan is the Democratic candidate. These ‘conservatives’ need abut 10-15 years in the wilderness.
*** Update ***
If you read this Patterico post, it would lead you to believe I am misinterpreting the dissent. No matter- I am still fed up with the GOP.