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What are police supposed to do when they ask to search a house for drugs, and one occupant says yes while the other says no? The Supreme Court on Monday agreed to answer that question in a Georgia case in which Scott Fitz Randolph denied police access to his house, but his wife welcomed police in and led them to her husband’s drug hiding place. The case is Georgia v. Randolph, and will be argued in the fall. Federal and state courts have divided on the issue, though the brief for Georgia notes that most federal circuits — the 1st, 5th, 6th, 7th, 9th, 10th, 11th, and D.C. — have ruled that warrantless police searches are permissible in similar circumstances. Only the state courts of Florida, Minnesota, and Washington state have ruled as Georgia’s Supreme Court did, finding that allowing the search to take place over the objection of a resident who was present at the time violated the Fourth Amendment’s bar on unreasonable searches and seizures. Randolph, an attorney in Americus, Ga., was charged with cocaine possession in July 2001, after his wife called police in the midst of a domestic disturbance. When police arrived, she told them Randolph was using cocaine and gave them permission to search the house. Randolph then arrived home and repeatedly objected to the search, but his wife encouraged police to proceed. Before he went on trial, Randolph succeeded in having the evidence suppressed as the fruit of an illegal search. The Georgia Court of Appeals and the Georgia Supreme Court agreed with his position. “The consent to conduct a warrantless search of a residence given by one occupant is not valid in the face of the refusal of another occupant who is physically present at the scene,” wrote Georgia Supreme Court Justice Robert Benham last November. The court found that the closest U.S. Supreme Court precedent, the 1967 case of United States v. Matlock, was not relevant because it upheld the consent of one occupant who was present when police arrived, over the refusal of an occupant who was not present. In Randolph’s case, Benham noted, both people with control over the house were on hand when the police asked to search the premises. Senior Assistant Georgia Attorney General Paula Smith, in her petition to the high court, said local police had obtained valid consent from Randolph’s wife, and that is all that is needed because they both have “common authority over the couple’s marital home.” If the high court upholds the Georgia Supreme Court ruling, she added, “Georgia citizens will be left with a rule which, in application, turns upon the timing of a request to search.” Richard Thomas, an assistant district attorney who argued for Georgia in the courts below, said Monday, “If you or your wife are there and your wife wants to invite her friends in, how can you as her husband deny that? If she can invite her friends in, why can’t she invite the police in? That’s the point we’ve been making the whole time.” But Randolph’s lawyer Wilbur Gamble III of Dawson, Ga., said the Georgia Supreme Court ruling should be allowed to stand, even if it perpetuates a conflict between courts in different jurisdictions. “Each state has the inherent right to extend the protection of one’s right to privacy if a state so chooses,” said Gamble. Gamble also argued that the Constitution’s Fourth Amendment clearly gives Randolph’s interests precedence over his wife’s. Said Gamble: “Which is more important: the right to be free from an illegal or unwarranted search of one’s property, or the property right of one to allow a search?” – Greg Bluestein of the Fulton County Daily Report contributed to this report.

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