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If Scott Fitz Randolph, in his career as a lawyer, ever dreamed of having a case before the U.S. Supreme Court, he could not have envisioned a day like Tuesday. Randolph didn’t argue before the justices. Instead, the justices argued about Randolph, a disbarred Georgia lawyer, and his rights under the Fourth Amendment. The case, Georgia v. Randolph, No. 04-1067, asked what should happen when a police officer knocks on the door of a home and asks to search, and the wife says “yes” but the husband says “no.” That’s what happened to Randolph and his wife at their home in Americus in 2001. An officer searched the home, found a straw containing cocaine residue and arrested Randolph. The issue provoked a lively discussion, with all nine justices debating the Fourth Amendment, the social rules that decide when Americans will and won’t open their doors to guests, and the ways that police should protect a victim who lives under the same roof as a perpetrator. Randolph’s attorneys built their argument around two points: The word “no” is a powerful barrier to a search without a warrant; and a man’s home is his castle. Georgia, joined by the federal government, contended that people expect less privacy when they choose to live together and that society has an interest in encouraging people to ask law enforcement to investigate crime. “The words that keep going around in my mind are, �It’s her house, too,’” Justice Stephen G. Breyer said, suggesting sympathy for Randolph’s wife and, presumably, the government’s arguments. The case began on a July morning, when police responded to a call about a domestic disturbance at a home in Americus where Randolph lived with his wife. Randolph had worked as a criminal defense lawyer in Atlanta and Americus but ran into trouble with the State Bar of Georgia. Twice he was suspended before the Georgia Supreme Court disbarred him in 2001 for mishandling a 1997 bankruptcy case. When police arrived, each spouse claimed the other had been using cocaine, according to the brief filed by Randolph’s attorneys. An officer asked to search the home. Randolph refused. His wife agreed. A trial judge held that the search was valid, but the Georgia Court of Appeals and the Georgia Supreme Court both ruled that the search was unconstitutional. The U.S. Supreme Court granted the state’s petition for certiorari, leading to Tuesday’s 60-minute argument.� A BATTERY OF QUESTIONS Representing Georgia, Senior Assistant Attorney General Paula K. Smith went first and faced a battery of questions from Justice Sandra Day O’Connor, who has said she will retire when her replacement is confirmed.
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The state had argued in its brief that the lower courts recognized Randolph’s right to refuse a search but failed to consider that his wife had her own right — to request a search. A home belongs to husband and wife, Smith argued, so either spouse has the authority to let somebody in. When people live together, they have a reduced expectation of privacy, she said. O’Connor asked if, when two people live together, it’s OK for one to let a stranger into the house if the other objects. Smith said that was common. “It might be common,” O’Connor said, “but I’m not sure that’s an acceptable” behavior for roommates. Other justices asked Smith about precedent, but O’Connor wasn’t finished. She asked Smith how the officer could ignore the objection from Randolph. Smith focused on the rights of Randolph’s wife. “I think you look to whether she had common authority over the premises,” Smith said. O’Connor, still unconvinced, asked, “Even when he is there?” “Yes, your honor,” Smith said, adding later, “He does not have an expectation of absolute or unequivocal control of the house.” Georgia received backing from the U.S. Department of Justice, which presented a 15-minute argument. Michael R. Dreeben, deputy solicitor general, told the justices that “cooperation with law enforcement is a good thing and should be encouraged.” Chief Justice John Roberts Jr. asked why, during a domestic dispute, one spouse should be allowed to interfere with the other’s privacy rights.”The wife had an independent interest in disassociating herself from criminal activity on the premises,” Dreeben said. Justice Clarence Thomas, whose questions each year often can be counted on one hand, spoke up on Tuesday. He asked if the case would be different if Randolph’s wife had run upstairs, retrieved a straw with cocaine residue and handed it to police. Dreeben said that for Fourth Amendment law, he saw no difference between allowing the wife to lead officers to the straw and her bringing the straw to police.� POKING HOLES IN THE ARGUMENT The justices, especially Roberts and Breyer, aimed many of their toughest questions at Randolph’s lawyer, Thomas Goldstein of Washington’s Goldstein & Howe. In their brief, lawyers for Randolph had argued that the Supreme Court never has allowed police to search a home without a warrant when an occupant was present and said “no.” To rule against Randolph, his attorneys argued, would destroy Americans’ expectation of privacy at home and “create a pervasive sense of personal insecurity.” But the justices questioned whether that theory reflected the realities of everyday life. “It is a little bit academic to talk about his individual right to privacy when he is sharing a home,” Roberts said. He pointed out that sharing a home can involve people intruding on each other’s privacy. Goldstein said that intruding on privacy requires a good reason, a rule that should extend to police. In Randolph’s case, he said, police could have obtained a search warrant by telephone in five minutes, which would have rendered Randolph’s refusal meaningless — and would have given police a legal basis to enter the house. Breyer found another problem with Goldstein’s position, saying it “would prevent the many, many cases of spousal abuse from being investigated.” Goldstein replied that in the past 30 years, that hasn’t been a problem, saying only 15 state or federal cases have involved suppression of a search related to domestic-violence investigations. Roberts asked what privacy rights exist for a person when everyone else under the same roof thinks police should be called. What if, he asked, nine residents of a dormitory consent to a search of a common room, but a 10th resident does not? What if a wife and children want the police to search, but a husband does not? “It cannot be the case that when the Framers enacted the Fourth Amendment,” Goldstein said, “� that you, merely by living with your family, took the risk that your privacy would be lost.” With Goldstein’s time almost up, Justice Ruth Bader Ginsburg asked a related question: What does the law say about searches requested by a mother-in-law? The audience laughed. Lawyers for Georgia will argue before the high court on Wednesday in Goodman v. Georgia, No. 04-1236, which tests whether a prison inmate may sue the state for damages under the Americans with Disabilities Act.�

Scott Simonson is a reporter with the Fulton County Daily Report , a sister ALM publication.

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