Wednesday, March 22, 2006

Views on Georgia v. Randolph?

I have deleted my original post to help make more immediately visible Galen's post about TOMORROW evening's event featuring Judge Silberman. It should be a delightful occasion for Federalists and non-Federalists alike! Hope to see you there!


Anonymous said...

Actually, their "married" status was not relevant in the case. Souter refers to them as "co-tenants" or "occupants." (In fact, the marriage was clearly dissolving and the estranged wife had only just returned to the home for a brief period when the cops initiated the search at issue.)

Charles Iragui said...

J. Li,

I'm also not sure why you think this was about the rights of married/unmarried. The dissent also spoke in terms of "co-occupant".

The dissent spoke of an anomaly that the search would be legal so long as the potentially objecting spouse was not there to register the objection (eg happened to be napping). Isn't this fortuitousness always present? For instance, if the co-occupant happened to be absent and only the target of the investigation were there, then no one contests that the police could not enter; the presence of a consenting co-occupant is often fortuitous.

The reason why the law should choose the honor the consenting occupant over the non-consenting one is, I think, prudential (the danger of, for instance, letting a powerful husband overrule a dominated wife) and practical (one more complicating twist for the police to remember). These considerations are what make such searches "reasonable".


Charles Iragui said...

J. Li,

OK - you're using "married" as shorthand for "cohabiting". Nevertheless, doesn't your dichotomy seem to give cohabiting people more rights than they currently have, regardless of Randolph? After all, previous to this decision it was (and still is) permissible to have a co-occupant consent to search, without first obtaining the consent of other co-occupants. It is only over the objections of another co-occupant that the police cannot now enter. This is clearly less protection than a person living alone would have. Does the current jurisprudence not correctly construe the 4th Amendment?