The Supreme Court made an interesting ruling yesterday involving a woman who called police to the scene of a domestic dispute and told them where her husband's cocaine was stashed:

The Supreme Court narrowed police search powers yesterday, ruling that officers must have a warrant to look for evidence in a couple's home unless both partners present agree to let them in.

The 5 to 3 decision sparked a sharp exchange among the justices. The majority portrayed the decision as striking a blow for privacy rights and gender equality; dissenters said it could undermine police efforts against domestic violence, the victims of which are often women.

Roberts and Souter squared off in their opinions, which are summarized in the aritcle.

Although I'm generally in favor of limiting police power, both sides make good arguments. It's a tough call, but it seems better to err on the side of caution in cases of domestic violence and abuse. The majority opinion says this discriminates against women and denies their equal rights. Somehow, I don't think it will usually be women objecting to entry in these cases.

What do you think?

Andy Axel's picture

Seems to me that a couple

Seems to me that a couple sharing the same living space share an equal expectation of privacy, but that in limited circumstances, that expectation could be voided (i.e. by alleged criminal conduct).

By the same token, though, I don't think that someone investigating a domestic abuse claim should be allowed to "widen the search" without probable cause (specified in a properly sworn warrant). They weren't after the guy for possession of cocaine, so I can see where it would be argued that finding evidence of another crime while investigating a domestic disturbance might be considered the fruit of a poisoned tree.

This won't be the last we hear about this one.

Floating face down in my NCAA pool.

R. Neal's picture

Souter also noted that

Souter also noted that police who arrive in the middle of a violent dispute still don't need a warrant, so there's that.

SayUncle's picture

I think it's odd that the

I think it's odd that the wife saying 'he has cocaine' wasn't probable cause.

Can't we all just get a long gun?

S Carpenter's picture

A couple of responses


 Says Uncle says: "I think it's odd that the wife saying 'he has cocaine' wasn't probable cause."

It is probable cause to get a warrant. 

 Andy Axels says: "expectation could be voided (i.e. by alleged criminal conduct)."

Talk about your slippery slope... Alleged criminal conduct can't separate you from constitutional rights.  That's an invitation to abuse of state power if ever there was one.


Andy Axel's picture

I'm talking about an

I'm talking about an expectation of privacy -- which isn't absolute.

I don't know if you've ever been to couple's counseling in Tennessee, but the counselor is duty-bound to inform you before you begin that if certain issues come up in counseling sessions (like the counselor is told that battery is occurring in the relationship) that s/he is required to refer such matters to law enforcement.

So the alleged criminal conduct voids the doctor-patient privacy expectation.

You still have rights beyond that, though. I just find it interesting that the Court chose to uphold the joint waiver requirement here; that it is insufficient for one party to waive 4th amendment rights in a joint ownership arrangement.

I think it's odd that the wife saying 'he has cocaine' wasn't probable cause.

It would be if the police were investigating drug possession rather than a domestic dispute.

Floating face down in my NCAA pool.

SayUncle's picture

It is probable cause to get

It is probable cause to get a warrant.

But probable cause has a tendency to make searches reasonable in the eyes of the courts.

Can't we all just get a long gun?

Andy Axel's picture

fruit of the poisonous

fruit of the poisonous tree

1 : a doctrine of evidence: evidence that is derived from or gathered during an illegal action (as an unlawful search) cannot be admitted into court

2 : evidence that is inadmissible under an evidentiary exclusionary rule because it was derived from or gathered during an illegal action — see also Wong Sun v. U.S.

Floating face down in my NCAA pool.

Hildegard's picture

Since the Constitution still

Since the Constitution still has that flaky "search warrant" requirement, it's still up to a magistrate to decide when the search is reasonable prior to issuing a warrant. Cops can search without a warrant when exigencies exist - but in a case where husband/boyfriend has been arrested and is out of the picture, where's the exigency? There is plenty of time to have a magistrate determine probable cause for searching the house. Anyway, I would be surprised if longsuffering wife/girlfriend wasn't snorting out of the same stash.

S Carpenter's picture

Good Search Decision IMO


I agree Souter, who wrote the majority opinion, that Roberts' argument concerning domestic abuse situations is a red herring.

In Tennessee, officers may arrest persons for domestic assault without a warrant if they have observations (red marks, broken household items, etc.) to go along with the accusation of assault. In all other misdemeanors, officers must see the offense to arrest without a warrant.

Where the circumstances warrant the arrest for domestic assault, whether officers can enter the home to search seems irrelevant. Alleged assaulter goes to jail whether he/she consents to a search or not. Absent some other circumstances, there is no need to search the house.

If officers need to search the home to further the investigation and the arrested spouse/co-inhabitant has objected, officers can get a search warrant. Presumably the alleged victim will supply sufficient information to support the probable cause needed to get a warrant. The alleged offender is in custody alleviating concerns for destroyed evidence. Two hours or so later, a lawful search occurs in the home.

I really can't think of a circumstance where this decision would create a problem. I don't think Roberts' and the minority have a clue as to how arrests occur in domestic assault cases.  


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