On March 22, 2006 the USSC decided in Georgia v. Randolph that a resident who is present can overrule a co-resident’s permission for a warrantless search of the home

This was a traditional conservative decision (explained below). The vote breakdown was 5 - 3, with the “liberals” and “moderates” having the winning position. Roberts, Scalia and Thomas lost in their attempt to expand the Court’s prior activist rulings (Alito did not vote)

Here is a link to the online version of Georgia V. Randolph, where you can read the majority decision plus the dissents — Georgia v. Randolph - USSC 3-22-06.

The majority decision was a truely American “conservative” decision, more respectful of the Constitution than the Judicial Activism expansive position taken by Roberts, Scalia and Thomas in their dissents

Lets make a quick informal sketch of Warrantless Search doctrine.

The 4th Amendment to the US Constitution protects us against “Unreasonable” searches and seizures. The 4th Amendment requires that no warrants shall be issued but upon “probable cause” (and must specify the place to be searched and the items to be seized).

So how did it happen that some searches of homes could occur without warrants? It’s well settled after many cases that sometimes the police can enter our homes without a warrant.

In my opinion, any court-added exceptions to the requirement of warrants are “expansive, and activist”. I’m not saying I oppose the Supreme Court’s 4th Amendment decisions, I’m saying let’s understand that some of their 4th Amendment decisions would qualify as “judicial activism” in the sense of expanding the police powers beyond a strict reading of the Constitution.

“Judicial Activism” occurs from the Left and the Right. Judicial Activism under the 4th Amendment causes an Expansion of the Police Powers of the State, through creating exceptions to the warrant requirement.

Supreme Court majorities over the years have shrunk the protections of the 4th Amendment and permitted many exceptions. These Courts Decisions are often celebrated by the so-called “conservatives” among us. The decisions are not conservative, and they do result in greater police powers and a weakening of our protections against tyrrany.

Here are a Few Major Exceptions, where the police can search a home without a warrant, under the expansive Supreme Court decisions:

Evidence of a crime laying in plain sight, Criminal activity visible from outside, likelihood of destruction of evidence, iminent threat of harm, PERMISSION of a person with authority such as a tenant or owner.

The Supreme Court’s exception for “permission of a tenant” was at issue in Georgia v Randolph

In Randolph, the police wanted to search a home but lacked a warrant.

The police asked one tenant for permission to search. The tenant said “Ok to search”. The co-tenant then spoke up, saying “NO!”

The police searched anyway.

The USSC ruled that the co-tenant, who was actually present, had the power to overrule the permission of the other, and the officers should not have searched without a warrant.

Furthermore, the officers could have waited outside the house for the warrant to arrive, preventing anyone from leaving. So there was no compelling need for the officers to ignore the co-tenant’s objection.

The strict construction “conservative” legal position was to rule exactly as the Supreme Court ruled.

In Randolph, the Supreme Court merely refused to expand the Court-codified doctrine of “warrantless searches of homes”.

The Supreme Court has declared that “Permission” means the tenants who are actually present have to all give their consent. Otherwise, the search is not really voluntary, and a warrant is needed. Why should one tenant have more power (the power to consent) than the other tenant (the power to refuse)? The police should have gotten a warrant.

When a Court refuses to expand a prior activist ruling, the Court is engaging in judicial restraint. Conservatives should applaud.

“Resist the expansion of old activist rulings” would be a nice slogan for right wingers, if they were being consistent in their support of the philosophy of strict construction and judicial restraint.

“Resist the expansion of warrantless police powers” would be a nice slogan for libertarians.

[That’s enough for now - maybe more later — outta time]