One thing that struck me in law school, and to this day, is how often the U.S. Supreme Court visits the issues of searches under the Fourth Amendment.

Seriously.  Every year they take a couple of these cases, it seems.  I don’t even pay attention any more.

But this morning, the Court addressed an interesting issue: consent searches.  Consent searches fall into that category of warrantless searches by law enforcement.  They are constitutionally permissible because the target of the search consents to it, thereby waiving his Fourth Amendment protections.

At issue in today’s case was who can give consent.  Or, to be accurate, whether a spouse can effectively waive 4th Amendment protections for another spouse.

The current law in most states, and on the national level, was that as long as one person gives consent, the police can search without a warrant.  For example, if the wife lets the police come in and look around, the husband cannot do anything.

Well, no more.

The Supreme Court narrowed police search powers yesterday, ruling that officers must have a warrant to look for evidence in a couple’s home unless both of the partners present agree to let them in.

The 5-to-3 decision sparked a sharp exchange among the justices. The majority portrayed the decision as striking a blow for privacy rights and gender equality; dissenters said it could undermine police efforts against domestic violence, the victims of which are often women.

The ruling upholds a 2004 decision of the Georgia Supreme Court, but still makes a significant change in the law nationwide, because most other lower federal and state courts had said police could search with the consent of one of two adults living together.

I think this makes sense.

In the majority opinion, Justice David H. Souter said the consent of one partner is inadequate because of ”widely shared social expectations" that adults living together each have veto power over who can enter their shared living space. That makes a warrantless search based on only one partner’s consent ”unreasonable" and, therefore, unconstitutional.

”(T)here is no common understanding that one co-tenant generally has a right or authority to prevail over the express wishes of another, whether the issue is the color of the curtains or invitations to outsiders," Souter wrote.

Roberts wrote the dissent.

Just by agreeing to live with someone else, a co-tenant surrenders a good deal of the privacy that the Constitution’s Fourth Amendment was designed to protect, Roberts said. ”The majority’s rule apparently forbids police from entering to assist with a domestic dispute if the abuser whose behavior prompted the request for police assistance objects," he wrote.

But Souter was all like "Nuh-uh, bitch.  Back off."

But Souter called that argument a ”red herring," saying that police would still have legal authority to enter homes where one partner was truly in danger.

”[T]his case has no bearing on the capacity of the police to protect domestic victims," Souter wrote. ”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. . . ."

Souter said Roberts was guilty of declaring that ”the centuries of special protection for the privacy of the home are over."

Joining Roberts dissent were Justices Scalia and Thomas.  Alito took no part in the decision, since he was appointed to the bench when arguments were made.

I guess the elephant in the room is the whole NSA wiretapping/right to privacy issue.  I’m not sure how much can be extrapolated from this decision to the larger controversy, except to say that the majority of the court still respects the right of privacy, going so far as to roll back current law enforcement practices to preserve it.  That’s encouraging.