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Analyzing the Chief, Part 3: Beneath the Veil.

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Opinions can provide a rare look inside the mind of a Supreme Court Justice. Lengthy opinions often indicate a complex issue where a finding is created from a patchwork of previous rulings which can bare little, or a great deal, of resemblance to the issues at hand.

In Georgia v. Randolph, a husband and wife were at odds over whether to allow police to search their home without a warrant after they were called there by the wife. The majority of the court concluded that in the presence of conflicting consent, no consent must be assumed and no search may take place without a warrant, as required by the 4th Amendment.

The majority opinion, written by Justice David H. Souter, spans 12 pages, and is in three parts. Chief Justice Roberts dissenting opinion is also 12 pages long. In contrast, Justice John Paul Stevens concurring opinion is less than one full page, and Justice Stephen G. Breyer's concurring opinion is just over that.

Chief Justice Roberts opinion summary concludes that United States v. Matlock is sufficient precedent in which to find in favor of the State of Georgia without further interpretation. The finding of Matlock is that a third party may in fact give legal consent for warrantless search of a shared premises, even if the third party is not the defendant. Matlock did not involve an objection to search by one party while another gives consent.

Roberts states that the court "creates constitutional law by surmising what is typical when a social guest encounters an entirely atypical situation". This is consistent with the strict constructionist belief that interpretation of the law must be limited to what the law says, ignoring its spirit, legislative intent, and other outside sources[Wikipedia], and that to do otherwise is to create law, rather than interpret law. Some interesting rights have been "created" in this way before, such as Miranda rights, which garnered its name from Miranda v. Arizona. That police must warn suspects in custody that they can remain silent if they wish, and have a right to an attorney are in fact not written in the constitution, or in any law at all. They were, as Justice Roberts would state, created by the court system.

Roberts continues the Matlock line of thought by citing Schneckloth v. Bustamonte, which supports Matlock that consent for search need not come from the defendant, and insists that the current decision in Randolph creates an exception to these cases. He also raises the prospect of innumerable situations where one of the parties may object to a search, but are not physically present at the premises entryway (such as a bathroom, or bedroom), creating an ambiguous situation that responding police will now have to deal with, placing them in the position of being both police, and lawyers. And a situation may arise where there may be an actionable situation (such as an assault inside the premises that is ongoing), where the police may not be able to enter because the offender is a cotenant that is denying them entry.

While the majority opinion argues that there is no basis in law for one cotenants wishes to be given priority over anothers, Roberts believes that it's unreasonable to expect that every situation will be the same, that in fact where the person wishing entry may be related to the cotenant granting consent for entry, that could be considered a reasonable consent, even with a standing objection. Hypothetical scenarios such as this are critical to determining what may, and what may not be considered a reasonable expectation, a standard often used to make determinations when the law does not cover every situation.

United States v. Jacobsen reenforces this, Roberts contends, as it says that "If two roommates share a computer and one keeps pirated software on a shared drive, he might assume that his roommate will not inform the government. But that person has given up his privacy with respect to his roommate by saving the software on their shared computer." (Note: This Supreme Court decision may very well be found to override that decision, but for now it stands.)

Part II of Roberts opinion continues with other case citations which he believes supports his contention that shared privacy is not really privacy at all, that if you give up your privacy to another person, they may in turn give it up to someone else, including the government. This section in fact continues making such arguments, stating specifically that "There is no basis for evaluating physical searches of shared space in a manner different from how we evaluated the privacy interests in the foregoing cases."

Roberts continues to show his belief that rulings such as this create law that does not exist, saying "Rather than draw such random and happenstance lines--and pretend that the Constitution decreed them--the more reasonable approach is to adopt a rule acknowledging that shared living space entails a limited yielding of privacy to others, and that the law historically permits those to whom we have yielded our privacy to in turn cooperate with the government." (My emphases.)

The third and final section of the opinion addresses Roberts belief that the scope of the ruling is too obscure, and as one justice that concurs with the majority actually acknowledges this in his/her opinion (I don't know who said this); "no single set of legal rules can capture the ever changing complexity of human life", to which Roberts says, "The majority acknowledges these concerns, but dismisses them on the ground that its rule can be expected to give rise to exigent situations, and police can then rely on an exigent circumstances exception to justify entry."

Chief Justice Roberts concludes his opinion with the following, which I reprint unedited.

"This case invites a straightforward application of the rule that a physically present inhabitant expresses refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant. Scott Randolph's refusal is clear, and nothing in the record justifies the search on grounds independent of Janet Randolph's consent. The State does not argue that she gave any indication to the police of a need for protection inside the house that might have justified entry into the portion of the premises where the police found the powdery straw (which, if lawfully seized, could have been used when attempting to establish probable cause for the warrant issued later). Nor does the State claim that the entry and search should be upheld under the rubric of exigent circumstances, owing to some apprehension by the police officers that Scott Randolph would destroy evidence of drug use before any warrant could be obtained."

I find nothing surprising in this opinion. John Roberts, like Alito, Scalia, and others, believe that if it's not written in law, then it's not law at all. If all justices thought this way, we wouldn't have Miranda rights, and conservatives (especially the Bush administration) would be shell shocked to find that Executive Privilege, which it has used to a degree unlike any other administration in history, would also disappear. Love it or hate it, good things have come with non-constructionist judicial interpretation, as well as some bad. That's the way of the world.

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The text of this article is Copyright © 2006,2007 Paul William Tenny. All rights reserved. This work is licensed under a Creative Commons Attribution-Share Alike 3.0 United States License. Attribution by: full name and original URL. Comments are copyrighted by their authors and are not subject to the Creative Commons license of the article itself.