Court Splits on Search Issue
The gloves definitely came off in these decisions. There is some strong language and the Justices clearly have different views about the legitimacy of these searches. The issue of domestic violence is batted back and forth among the various opinions. The Chief and Justice Scalia see this requirement of unanimity of occupants as a problem. What if the battered woman wants the police to enter, but the abusive husband says no?
Justice Souter's response is the following...
No question has been raised, or reasonably could be, about the authority of the police to enter a dwelling to protect a resident from domestic violence; so long as they have good reason to believe such a threat exists, it would be silly to suggest that the police would commit a tort by entering, say, to give a complaining tenant the opportunity to collect belongings and get out safely, or to determine whether violence (or threat of violence) has just occurred or is about to (or soon will) occur, however much a spouse or other co-tenant objected.However, that does assume that the courts will give the police a fairly wide berth in determining if a threat does exist.
Justice Scalia joined the Chief's dissent and used is short, 3 page dissent to respond to the critique of originalism in Justice Stevens' concurrence. Justice Thomas' dissent takes the view that this was not a Fourth Amendment search at all. He states...
...when a citizen leads police officers into a home shared with her spouse to show them evidence relevant into their investigation into a crime, that citizen is not acting as an agent of the police, and thus no Fourth Amendment search has occurred.He cites Burdeau v McDowell which characterizes the Fourth Amendment as a restraint on sovereign authority, not all government agency actions.
I'm a bit surprised at how strongly worded some of these opinions are, especially Justice Souter's majority opinion. He's not what you would call a firebrand. However, he had no problem taking on his new boss. There had been rumors that Souter might retire, citing boredom with the Court and a desire to leave Washington DC. Based on this opinion, maybe the old guy has been invigorated and given a new zeal for his work.