Is a home search legal if she says OK, but he balks?

In a case that could inject a new level of acrimony into failing marriages nationwide, the US Supreme Court is about to examine whether the police need the consent of one or both spouses to conduct a warrantless search of a home.

At issue in Georgia v. Scott Fitz Randolph is whether the Fourth Amendment to the Constitution requires consent from both husband and wife if both are present when police ask permission to search their house to investigate allegations of criminal activity.

The case, set for oral argument Tuesday, stems from a July 2001 incident in Americus, Ga., in which police responded to a report of a domestic disturbance.

Scott Fitz Randolph and his wife were arguing over what was to become of their unraveling marriage. She wanted to take their son to Canada to live with her family. When Mr. Randolph took the boy to a neighbor's house to prevent her from leaving the country with him, Mrs. Randolph called the police.

When officers arrived, Mrs. Randolph told them her husband had been using cocaine. Mr. Randolph responded that it was his wife who had been using cocaine.

Faced with allegations of illegal drug use, the police asked for consent to search the house for evidence.

Mr. Randolph, who was a lawyer, refused to let police into the home without a warrant. But Mrs. Randolph consented and led a police officer to Mr. Randolph's bedroom, where the officer found apparent drug paraphernalia and white powder that appeared to be cocaine. Armed with that information, police then applied for a search warrant. Meanwhile, Mrs. Randolph changed her mind. She told police she was withdrawing her consent to the search.

Too late. Police obtained a warrant and seized 25 drug-related items from the home. Mr. Randolph was arrested and later indicted for cocaine possession.

The constitutionality of the search was litigated at a pretrial hearing. Mr. Randolph's lawyer argued that all evidence in the case should be thrown out because the search violated Fourth Amendment privacy protections. The trial judge disagreed. But a state appeals court and the Georgia Supreme Court overruled the trial court and threw out the evidence as the fruit of an illegal search.

The Georgia high court said that where two people have equal control and use of a house, one occupant's consent for a police search of the premises is not valid if the other occupant is also present and objects to a warrantless search.

The Georgia appeals court expressed concern about a potential threat to "domestic tranquility" should police officers be constitutionally authorized to play quarreling spouses against each other to detect possible crimes and then obtain permission from one spouse to search their home for evidence that could convict the other spouse.

In a country where more than half of all marriages end in divorce and where divorce lawyers are not shy about using domestic disturbances to establish leverage in divorce proceedings, such a constitutional rule could give rise to increasingly aggressive tactics in divorce cases.

It would also make it easier for law-enforcement officials to detect and solve crimes. Both the Bush administration and 21 state governments have filed friend-of-the-court briefs supporting Georgia authorities and urging the Supreme Court to overturn the state high court decision. In effect, they argue that anyone who lives with someone else does not enjoy a reasonable expectation that a cooccupant will not permit law-enforcement officers to conduct a search of their home.

"A reduced expectation of privacy comes with sharing a house or an apartment with another," says Paula Smith, a senior assistant Georgia attorney general, in her brief to the court.

"The state's proposed rule would be devastating to personal privacy," writes Randolph's lawyer, Thomas Goldstein of Washington, D.C., in his brief to the court. "The state's position ... would disparage the privacy rights of every person who lives with others."

In some cases, Mr. Goldstein stated, an "any occupant" consent rule endorsed by the US Supreme Court would permit police to approach and receive permission from minor children to allow police to search their home to gather criminal evidence against their parents.

"Such a 'right' to privacy is no right at all," Goldstein said.