Hypothetical Question

Let's say you're a cop. You get a call on a domestic disturbance, and when you get to the house, the wife and husband are both standing at the door. They're shrieking and hollering at and about each other. The wife tells you the husband is a scum bag, but they probably wouldn't fight so much if he didn't spend all their money on cocaine.

This, I imagine, would catch your interest. But at this point, you don't have a warrant for anything.

In fact, wife tells you, hubby has some cocaine upstairs in the bedroom right now. She gives you permission to enter the house to search for drugs.

So you look at hubby, who says you do not have permission to look for drugs. Wife reminds you that you do have permission. Hubby insists that you do not.

Do you go in and look for the drugs, or do you leave?

The cops in Georgia v. Randolph went in, they found the drugs, and they prosecuted. The Georgia Supreme Court said the cops screwed up. Today, the U.S. Supreme Court agreed. (You can read the 51-page opinion here). MSN.com's angle on the story is to note that Roberts wrote his first dissent, and that what has been an unusually united Court so far split 5-3 (Alito didn't vote).

Justice Souter's majority opinion left open the question of what happens when only one spouse is at the door, but made it clear that if the objecting spouse is at the door when the cops ask for consent to search, the other spouse can't consent for both of them. If hubby had been in a back room or something, there apparently would not have been an issue.

From MSN.com: "In his first written dissent, Chief Justice John Roberts said that 'the end result is a complete lack of practical guidance for the police in the field, let alone for the lower courts.'"

With all due respect, I think he's overstating the case. He goes on to argue that if a woman invites the cops in, and the husband says no, then the woman is in danger of retaliation as soon as the cops leave. Souter countered that nothing in the holding denies a cop the power to prevent domestic violence (if Randolph had attacked his wife, for example, they could have intervened) -- Souter just didn't want the cops to burst through the door with no warrant on a non-time-sensitive issue. Sure, Randolph might get rid of the cocaine he had at the moment, but if he's a coke-head he'll get more, and the cops can come back with a warrant at their leisure. Especially if the wife files a police report.

Stevens, concurring, noted: "assuming that both spouses are competent, neither one is a master possessing the power to override the other’s constitutional right to deny entry to their castle."

That seems to beg the question. If my wife cannot deny my right to keep the cops out, then the necessary corrollary is that I can deny my wife's right to let the cops in. Why Stevens would choose to err on the side of keeping the police out of a domestic dispute -- especially where one party truthfully tells the cops there is cocaine in the house -- is beyond me. But then again, Stevens has always been off in his own little world, so I guess there are no surprises there.

In other Supreme Court news, today a decision came down in U.S. v. Grubbs. The Defendant ordered a video tape of child pornography from an undercover postal inspector. A magistrate judge gave the cops something called an anticipatory warrant, which is just like a regular warrant (in that it must describe with specificity the place to be searched and the things to be seized), but it also does not take effect until a certain event triggers it. In this case, the triggering event was the delivery to Defendant's home of the tape -- at which point the cops jumped out from behind the bushes, arrested the guy, and searched him home.

The catch: the anticipatory warrant was supposed to have a statement of the triggering event stapled to it, but by accident that statement was missing. In all other respects, the warrant was valid. The only question for the courts was whether the specificity requirements of place and things also included specificity of the triggering event. The Ninth Circuit decided the warrant was invalid because it didn't state the triggering event. The Supreme Court disagreed.

So the cops won one and lost one today.