IF SHE SAYS YES AND HE SAYS NO, WHAT'S A POLICE OFFICER TO DO?

When a wife says yes, and her husband says no, who wins? We're talking
courtrooms, not bedrooms, and we're talking specifically of Georgia vs.
Randolph. Last month the Supreme Court decided to hear the case.

These are the facts: Scott Randolph and his wife, Janet, were having
marital problems. In May 2001 she took her clothing and their 6-year-old
son to her parents' home in Canada. Two months later she came home with the
child. It was not a happy reunion. On the morning of July 6 she called the
Americus, Ga., police to complain that her husband had disappeared with the
boy. Helpfully, she told the cops that her husband was sniffing cocaine.

Randolph shortly returned. Fearing that his wife might take off again for
Canada, he had taken the boy to a neighbor's house. He too was eager to
help support the cause of law and order. He informed Sgt. Brett Murray that
his wife was an alcoholic who sometimes was "highly inebriated." Standing
outside, as the Court of Appeals observed, "they were hurling accusations
of wrongdoing at one another."

Murray asked Randolph for consent to search the residence. He responded
with an unequivocal "no." Murray persisted. He turned to Mrs. Randolph and
asked for her consent. She was still sore. Without further ado, she
escorted Murray to an upstairs bedroom. On a dresser was a drinking straw.
A white residue on the tip appeared to be cocaine.

To shorten the story: Officer Murray belatedly obtained a warrant. Mrs.
Randolph, now repentant, announced that she was withdrawing her consent. No
matter. Too late! The ensuing search turned up "numerous drug-related
items." Eventually a grand jury indicted Randolph for possession of
cocaine. Before the case could go to trial, he moved to suppress. The trial
court denied his motion, but Georgia's Court of Appeals reversed: It was
"inherently reasonable" for police to honor Randolph's express objection.
"Allowing a wife's consent to search to override her husband's previous
assertion of his right to privacy threatens domestic tranquility."

The Supreme Court of Georgia affirmed. Although three dissenting justices
felt that Mrs. Randolph's consent "was sufficient to authorize the search,"
the majority felt emphatically otherwise:

"The consent to conduct a warrantless search of a residence given by one
occupant is not valid in the face of the refusal of another occupant who is
physically present at the scene." Janet's consent was valid only so long as
her husband was somewhere else. But he was there, on the lawn, fuming, and
he did object. The Americus police thus lost their authority. "Any other
rule exalts expediency over an individual's Fourth Amendment guarantees."

The Randolph case will be argued before the U.S. Supreme Court midway in
the term that begins in October. The outcome will depend heavily upon the
durability of the case of William Matlock. He was a small-time felon,
indicted for bank robbery in Wisconsin 30 years ago. He lived in
extramarital cohabitation with his common-law wife, Gayle Graff, in
Pardeeville, 30 miles north of Madison. At the time, such cohabitation was
a criminal offense in Wisconsin.

Evidently, like the Randolphs in Georgia, the couple had their domestic
problems. On a November day in 1970, she led the cops to a bedroom they
shared in a home owned by her family. There the cops found the loot stashed
in a diaper bag in a closet. Matlock naturally moved to suppress. The
evidence had been obtained without a warrant and of course without his
consent. The question submitted to the high court was whether the search
and seizure violated his rights under the Fourth Amendment.

Speaking through Justice Byron White, the court held 6- 3 that the evidence
must be admitted. Mrs. Graff's permission, granted against her own
self-interest, was sufficient justification for a warrantless search.

Justice William O. Douglas wrote a solo dissent. Justice William Brennan,
joined by Justice Thurgood Marshall, wrote another. The cops' failure to
obtain a warrant, said Douglas, was fatal to the state's case. There had
been abundant time for getting approval from a judge. Brennan agreed that
the invasion of Matlock's privacy was "constitutionally prohibited." The
evidence should have been excluded.

In the case at hand, my sympathies lie with Scott Randolph, rather than
with the cops or with the wife who ratted on him. My guess, on the other
hand, is that the Georgia court will be affirmed.