Wow. Interesting case (PDF file). The Supreme Court ruled on a case out of Georgia concerning Fourth Amendment rights. The question: if one occupant of a house refuses to allow a warrantless search of a residence, can another occupant allow it?

In this case, it was a husband and wife with a child. They separated more than a month before the incident, and child custody was an issue. When the wife left originally, she took their son with her to Canada. When she returned (the reason not being apparent), the husband took the child to a friend’s house, fearing his estranged wife would again remove him from the country, making it far more difficult for him to win custody. An argument ensued, and the wife called the police. When the police arrived, the wife claimed the husband was a drug user, that there was evidence in his bedroom, and invited the police in to search. The husband refused the search and claimed his wife was the drug user. The police entered on the wife’s consent over the husband’s objection, found evidence of drug use, and arrested the husband.

Interesting issues abound. Precedent allows a search if an objecting party is not present to object. If the husband were still at the friend’s house when the wife invited police in, the search would have been legal; in that respect, the presence of the objecting party might seem more of a technicality than a principle. One commenter on the topic points out that an abusive husband could refuse a search when a battered wife wants police to see evidence of child abuse; another points out that if police believe there is a threat to one of the occupants, that overrules the objections and police could enter. In the case in question, the wife was estranged and not a current occupant of the household, instead visiting from another country. Did she hold common title to the house? This was a case involving child custody, which can get incredibly messy; what if she was trying to falsely incriminate the husband to gain an advantage for custody?

Souter wrote the majority opinion, which ruled in favor of the defendant–police may not search without a warrant if one occupant objects, even if another occupant does not. In the minority, as expected, was John Roberts, who wrote the dissent (PDF file), joined by Scalia. Alito did not participate, having joined the court too late.

What is interesting here is that Kennedy joined the liberal side of the court, with Roberts showing his conservative stripes in joining Scalia and Thomas on the other side. Is it possible that Kennedy could be turning to the left as a counterbalance to Alito and Roberts joining the court? Kennedy has in the past been less on the spot because O’Connor was clearly the swing vote. But now Kennedy, who stands between the two sides, is the man in the middle, and bears greater responsibility in cases which could swing either way. With Scalia, Thomas, Roberts and Alito forming a solid right-wing clique, will Kennedy be comfortable joining them now that O’Connor is not there to take the bullet?