The Privacy of Marriage

Case to clear up consent to search debate,” by Hope Yen, Associated Press, 19 April 2005,

That the guy is crummy and the gal is a flip-flopper enabler doesn’t matter. That the substantive crime — drug possession — shouldn’t be a crime doesn’t matter. The rights of marriage, the rights of spouses, and the rights of police matter.

Scott Randolph didn’t want police to search his home after officers showed up to answer his wife’s domestic disturbance call. Mrs. Randolph had no such reservations.

Janet Randolph not only let them in – but led officers to evidence later used to charge Scott Randolph with drug possession.

The Supreme Court said Monday it will use the case to clarify when police can search homes. The high court previously has said searches based on a cohabitant’s consent is OK, but it’s not clear whether that applies when another resident is present and objects.

Officers asked to search the couple’s home, but Scott Randolph objected. Janet Randolph, however, consented and led police to the couple’s bedroom where officers saw a straw with white powder.

It’s boils down to using laws to extend implicit horizontal controls. On one hand, the state believes that if searches requires non-objection from both partners, laws will be weakened. People will realize they can be broken more easily, and strong implicit controls will shift to be weaker and more explicit. On the other, marriage should give special rights. In the words of court opinions

When possible, Georgia courts strive to promote the sanctity of marriage and to avoid circumstances that create adversity between spouses,” the appeals court stated. “Allowing a wife’s consent to search to override her husband’s previous assertion of his right to privacy threatens domestic tranquility.” In their Supreme Court filing, Georgia prosecutors said the ruling “focuses arbitrarily on the rights of the objecting occupant, to the detriment of the consenting occupant who was trying to report a crime and who had just as much access and control over the home as her husband.”

Like in the case, the basic question is how important is marriage? Is it just a contract that includes co-occupancy or something more?

It should be something more.

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