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Published: Tuesday, 11/8/2005

Court debates police search when spouses disagree on consent

BY MICHAEL McGOUGH
BLADE WASHINGTON BUREAU

WASHINGTON In a lively argument yesterday that featured a rare round of questioning from Justice Clarence Thomas, the U.S. Supreme Court debated whether police may search a home when one occupant consents and another objects.

On a busy day, the justices also ruled unanimously that employers must pay workers who require protective clothing for the time it takes to walk from the dressing room to the plant floor, but said that workers need not be compensated for the time they spend waiting to put on their gear.

The debate over whether only one occupant of a home need consent to a police search came as the justices considered the case of Scott Fitz Randolph, who faces a cocaine possession charge in Georgia.

Mr. Randolph was arrested after a police officer who answered a domestic call was told by Mr. Randolph s wife that her husband used cocaine and that there were items of drug evidence in their home.

Mr. Randolph refused to allow the officer to search the home, but Mrs. Randolph gave her consent and took the officer to a bedroom where he found a piece of a drinking straw containing what looked like cocaine crystals.

The Georgia Supreme Court suppressed the evidence, ruling that under the Fourth Amendment, the consent to conduct a warrantless search given by one occupant is not valid in the face of the refusal of another occupant who is physically present at the scene.

Thomas Goldstein, Mr. Randolph s lawyer, urged the justices to affirm the Georgia ruling because Mrs. Randolph had allowed police to search an area where her husband had a legitimate expectation of privacy.

But Mr. Goldstein was barely into his presentation when Chief Justice John Roberts challenged that argument.

It s academic to talk about his individual right to privacy when he s sharing a house with someone else, Chief Justice Roberts said.

Then Justice Thomas, who is known as the sphinx of the Supreme Court because he almost never asks questions, calmly asked Mr. Goldstein if it would have been an unreasonable search if Mrs. Randolph had simply led the police officer to the straw with cocaine traces.

Mr. Goldstein insisted that Mrs. Randolph had gone further than that by inviting the officer to search the house.

Mr. Randolph s claim got some sympathy from Justice Sandra Day O Connor, who may not be on the court when this case is decided, depending on whether and when the U.S. Senate confirms Judge Samuel Alito, Jr., as her successor.

When Assistant Georgia Attorney General Paula Smith said the prosecution s position was supported by past decisions allowing searches with the consent of only one spouse, Justice O Connor skeptically shot back:

Even when the husband is present and says no?

The court will rule on the Georgia case sometime before July.

In the protective-clothing case, which was argued on Oct. 3, the first day of the court s 2005-06 term, the justices revisited a perennial legal debate about where the workday begins and ends for employees, such as those in slaughterhouses, who must wear protective gear.

In his opinion for the court, Justice John Paul Stevens ruled that workers in a Pasco, Wash., meat-processing plant and a poultry processing plant in Portland, Maine, must be paid for the time they take walking to the plant floor after putting on their protective clothing.

Contact Michael McGough at:mmcgough@nationalpress.com or 202-662-7575.



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