By Pete Williams Justice correspondent
NBC News
updated 11/8/2005 5:16:36 PM ET 2005-11-08T22:16:36

It reads like an episode of "Law and Order."

Police officers respond to a domestic disturbance call at the home of a couple that's had a rocky marriage. In front of the officers, the husband and wife trade accusations. She claims her husband's drug use is causing money problems and says actual "items of drug evidence" are in their home.

Hearing the suggestion that evidence might be inside, the police ask the husband if they can search the house. No way, he says. But the wife gives her consent and leads the officers to an upstairs bedroom where they find a drinking straw with what looks like cocaine on it.

It's not a TV drama. That very scene played out in reality four years ago at the home of a Georgia lawyer who was arrested and charged with drug possession.

On Tuesday, the justices of the Supreme Court wrestled with this question: Was the search legally permissible, or did it violate the husband's expectation of privacy, protected by the Fourth Amendment's ban on unreasonable searches?

Surprisingly, the court has never addressed a situation like this one, where one person wants to let the police in and another doesn't.

Arguments in favor
Paula Smith, a lawyer from the Georgia attorney general's office, argued that the search at issue in this case was a legal one, because anyone who makes the decision to live with someone else surrenders some control over who gets to come into the house and who doesn't.

Key 2005-2006 Supreme Court cases

"The husband did not have an expectation of absolute control," she said Tuesday.

And a United States Justice Department lawyer, Michael Dreeben, agreed. When one occupant of a home or apartment says no to police, but another says yes, the search should be allowed.

"There's a social interest in encouraging people to cooperate with law enforcement," Dreeben said.

Both lawyers on the side of the police argued that it was a reasonable search, because it's natural to assume that a roommate or spouse has the authority to let people into the home, including the police, even when others at home object.

"But why do you say that's a reasonable expectation?" asked Justice Antonin Scalia, "When one person wants to let someone come in and another doesn't, then the visitor will be allowed in? I'd have assumed just the opposite."

Justice Sandra Day O'Connor seemed equally skeptical of Georgia's argument.

"Why do you say it's the norm that co-habitants will let in strangers against the express wishes of a spouse? I'm not sure that's an acceptable performance," O'Connor said.

Tom Goldstein, the lawyer for the Georgia attorney whose home was searched, said past Supreme Court decisions have allowed police to search with the consent of just one resident when the other isn't home or is asleep. But in this case, he said, the husband was at home, awake, and actively opposing the search.

"He has a right to privacy, which is at its highest in the home," Goldstein said.

But that argument didn't seem to convince Justice Stephen Breyer.

Hypothetical cases
"It's her home, too. Why doesn't she have the right to have the police come in?" asked Breyer, who said he was especially concerned about cases of spousal abuse.

"Let's say the neighbors hear something and tell the police, who go to the door. And the wife asks them to come in. If the husband can keep them out, I'm concerned that many cases of spousal abuse wouldn't be investigated," Breyer said.

Chief Justice John Roberts asked Goldstein another what-if: Could just one of nine dormitory roommates who share a common area block a search, even if all the others would allow the police in?

Not necessarily, Goldstein replied. The law should balance the interests involved and, in the dorm example, the search might be permissible, he said.

"But under the state's rule, if eight of the roommates objected to a search, the police would still be allowed in if just one roommate said yes," Goldstein said.

Besides, he argued, if Georgia wins in this case, then children could let in the police even if the parents objected.

"And so could mothers-in-law," noted Justice Ruth Bader Ginsburg.

The court's ruling is expected early next year.

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