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Wednesday, March 22, 2006

Ruling in GA v. Randolph

The Court just handed down its ruling in Georgia v. Randolph, affirming the Georgia Supreme Court’s ruling that one co-tenant may not grant permission to police to search a shared residence over the express objection of the other, physically present, co-tenant (or, more precisely, that such permission was not valid in the face of the objection).  Justice Souter wrote the majority opinion; Justices Stevens and Breyer each concurred; Chief Justice Roberts, Justice Scalia, and Justice Thomas each dissented.  Back in November Dalia Lithwick had an entertaining summary of the issues and the arguments.

I’ve only skimmed the opinion and C.J. Roberts’s dissent – but what gets raised as between them is the (to me) very interesting argument about “lay perceptions” versus “the law.”  Justice Souter devotes time to discussing whether one might “reasonably expect a [young] child to be in a position to authorize anyone to rummage through his parents’ bedroom” and what the behavior of a “social guest” might be in response to one tenant inviting him in while another seeks to exclude him.  The Chief Justice objects to what he sees as Souter “creat[ing] constitutional law by surmising what is typical when a social guest encounters an entirely atypical situation,” and focuses, unsurprisingly, primarily on doctrines addressing expectations of privacy.

So far, I think I think that Justice Souter had the right outcome but for the wrong reasons (he does, of course, rely on Fourth Amendment doctrine, too).  What interests me, as someone doing empirical research on public perceptions of the law—and as someone who wonders whether such perceptions matter—is the explicit recourse to assumptions about what some hypothetical social guest might think as one basis for constitutional decision-making.  We’re not talking Eighth Amendment cruel and unusual punishment criteria here, but rather Justice Souter’s perception of some hypothetical social guest’s reaction.

Obviously I’m painting with very broad strokes here, without, I confess, even reading the rest of the opinions—but I think it’s an important, interesting decision, and thought a quick heads-up would be useful.  More, I hope, after a more thoughtful reading.

Posted by jeremy_blumenthal on March 22, 2006 at 03:55 PM | Permalink


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Further thoughts: Something has been rubbing me the wrong way about this decision and I just figured out what it is: Justice Souter equating a roommmate with a spouse. Now, I can see why he would do so since has never been married but I am surprised that the other Justices went along even, implicitly, the dissents. There is a sanctity and a trust in the marital relationship which does not exist between roommmates and it was violated here.

Posted by: nk | Mar 23, 2006 5:13:11 PM

The most cogent argument was Justice Thomas's arguing against the Court's departure from precedent which I, nonetheless, think is a proper departure. The CJ's is being lauded elsewhere but I think it specious. I do not understand a concept of alienable consent to invasion of privacy. I permit many things to my wife which I do not permit to anyone else. Under the CJ's reasoning my wife can invite the neighbors over to walk into the bathroom while I am taking a shower and I have no authority to ask them to leave.

Posted by: nk | Mar 22, 2006 10:52:07 PM

If you're interested in empirical approaches to the 4th Amendment, especially issues regarding "law perceptions," I highly recommend Slobogin & Schumacher's article "Reasonable Expectations of Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at 'Understandings Recognized and Permitted by Society," 42 Duke LJ 727 (1993). They compare survey data to judges' conceptions of what sorts of searches violate "reasonable expectations of privacy" and find several interesting divergences. It would be great if someone out there were to do follow-up work, since their data is by now dated and they weren't drawing on a broadly representative national sample in any event.

Posted by: Lior | Mar 22, 2006 7:06:38 PM

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