In 2001, Georgia resident Scott Fitz Randolph was having marital problems. At one point, his wife called police and told them he was using cocaine and there were "items of drug evidence" in the home. When police arrived, Randolph refused to allow them to search the house without a warrant, but Mrs. Randolph did consent to a search and took officers to a bedroom where a straw with cocaine traces was found.
The case went all the way to the Georgia Supreme Court, which sided with Mr. Randolph. The court held that under the Fourth Amendment "the consent to conduct a warrantless search... given by one occupant is not valid in the face of the refusal of another occupant who is physically present at the scene."
The state of Georgia appealed to the US Supreme Court, where it was joined by 21 other states and the Bush administration in urging the high court to overturn the decision. In oral arguments on November 10, the justices hinted they may do just that.
While Randolph's lawyer, Thomas Goldstein, argued that the decision should be upheld because Mrs. Randolph had okayed a search in "an area where her husband had a legitimate expectation of privacy," the justices were skeptical.
"It's academic to talk about his individual right to privacy when he's sharing a house with someone else," said Chief Justice Roberts.
Justice David Souter noted that the court had upheld the constitutionality of a spouse consenting to police searches when her partner was not present even though it was likely the absent spouse would object.
"Why does he have more of a right to keep the police out than she has the right to have them come in?" asked Justice Stephen Breyer. Breyer said he was worried that if the court upheld the decision a battered wife would be unable to ask a police officer to speak privately with her in a bedroom without her husband's consent.
Only Justice Sandra Day O'Connor appeared especially sympathetic to Randolph's argument, and she may be gone from the bench before the case is decided if the Senate approves Judge Samuel Alito as her successor. When Georgia Attorney General Paula Smith said the state's position was supported by past Supreme Court cases allowing searches with the consent of only one spouse, O'Connor retorted: "Even when the husband is present and says no?" Deputy Solicitor General Michael Dreeben, who argued the case for the Bush administration, got a similar response when he supported Georgia's position. "How can you override the expression from a co-tenant when the co-tenant says no?" she asked.
A decision in the case, Georgia v. Randolph, is expected sometime in the spring.