Upholding our right to say no

March 29, 2006|By STEVE CHAPMAN

CHICAGO -- The other day, the U.S. Supreme Court did something surprising. It said that if a man stands at the threshold of his house and tells the police they may not enter without a warrant, then - get a load of this, will ya? - police may not enter without a warrant.

That may not sound very remarkable. After all, most of us are familiar with the axiom that a man's home is his castle, and the Constitution does have that passage ensuring the right of all Americans "to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures."

But in recent years, the court has had a simple rule in disputes between citizens and police on the legality of a search: Go with the cops. It's out of character for the justices to rule that a person's privacy may impede law enforcement, as they did here.

The case arose after a Georgia woman, Janet Randolph, called police to say her husband had absconded with their son. When officers arrived, she told them her husband was a cocaine user. About that time, Scott Randolph showed up, said he had taken the boy for fear she would spirit him out of the country and denied using drugs.

One officer, who had no search warrant, asked the husband if he could search the house. Mr. Randolph said no. So the officer asked Mrs. Randolph, who obliged.

The cop went in and found a straw coated with a powdery substance. When Mr. Randolph was indicted for cocaine possession, he argued that the search was invalid because he had refused consent.

The trial court rejected the claim, ruling that his wife had authority to admit police to their joint residence. But the Supreme Court took a different view: Although she could have let them in when her husband was absent, he was present and therefore had the right to bar their entry. Only if there was an emergency, such as the threat of domestic violence, could the cops enter over his objection.

That conclusion rests on common sense. "It is fair to say," wrote Justice David H. Souter, "that a caller standing at the door of shared premises would have no confidence that one occupant's invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, `Stay out.' Without some very good reason, no sensible person would go inside under those conditions."

Chief Justice John G. Roberts Jr. disagreed, insisting that when two people live together, prevailing conventions allow either to have visitors over the objections of the other. Apparently, he sees no limit to this principle. So when representatives of the Committee to Impeach John G. Roberts Jr. arrive at his house and his wife invites them in, he will consider himself powerless to keep them out.

But Justice Roberts had reason to think his fellow justices would go along with him. They have provided the government lots of ways to get around that pesky Fourth Amendment. One is to say, as the chief justice did, that in many situations, the government may conduct a search because a citizen has no "reasonable expectation of privacy."

You may think your bank or video store records are confidential, but the court has said that once you share information with a third party, it's no longer private. So a prosecutor embarked on a grand jury investigation can inspect them, without bothering to get a search warrant from a judge based on evidence that you've committed a crime.

The Constitution generally bars searches without a warrant, which requires a showing of "probable cause," but the rule doesn't apply if the target of the search consents to it. So the court has ingeniously stretched the meaning of "consent."

The average person, confronted with cops asking if they can search her house or car, would not realize that she has a right to decline. Most people "consent" because they figure they have no choice, and the court has said that police are under no obligation to let them know otherwise.

Still, there are limits to how far the court can go in placing the convenience of law enforcement over the language of the Constitution. The court can pretend people have no expectation of privacy even when they do, and it can pretend that people routinely agree to things they have every reason to reject. But when a man stands in his doorway telling the police they may not come in, the court has to acknowledge that a citizen's right to say no still means something.

Steve Chapman is a columnist for the Chicago Tribune. His column appears Mondays and Wednesdays in The Sun. His e-mail is schapman@tribune.com.

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