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On a 5-3 vote, the US Supreme Court ruled Wednesday that police cannot enter a home and seize evidence without a warrant if one occupant refuses to consent -- even if another occupant gives permission. The court's most conservative members, Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas, all dissented. Recently sworn-in Justice Samuel Alito did not vote because he was not on the bench when the case was argued.

home search enactment, BUSTED

In Georgia v. Randolph, the Randolphs were having marital difficulties when Janet Randolph called police to the couple's home because of a domestic dispute. She told police Scott Randolph had been using cocaine and that drugs were on the premises. When an officer asked for permission to search the house, Randolph, a lawyer, refused. The officer then asked Mrs. Randolph, who gave permission. Police found a straw and white powder residue. As a result, Randolph was charged with cocaine possession.

He sought to have that evidence suppressed as the fruit of an unlawful search, but a trial court held the search was lawful because the wife had equal authority with her husband to give consent to a police search. The Georgia Supreme Court disagreed, holding that when two people have equal use and control of a premises, one person's consent is not valid if the other is present and objects.

The state of Georgia appealed to the Supreme Court, where it was joined by the US Justice Department, which urged the court to overturn the Georgia decision. But in a 19-page opinion authored by Justice David Souter, the Supreme Court declined. It was not a tough call, Souter wrote, because the case involved "a straightforward application of the rule that a physically present inhabitant's express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant."

The case prompted the first written dissent by Chief Justice Roberts, who oddly argued that because the ruling would not protect all co-occupants -- only those who were present to object -- it should not protect any. Furthermore, Roberts worried, the ruling could hinder police in domestic abuse situations. "And the cost of affording such random protection is great, as demonstrated by the recurring cases in which abused spouses seek to authorize police entry into a home they share with a non-consenting abuser," Roberts wrote.

Roberts concern was "a red herring," Souter responded in the majority opinion. "This case has no bearing on the capacity of the police to protect domestic victims. The question whether the police might lawfully enter over objection in order to provide any protection that might be reasonable is easily answered yes."

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