Squabbles over originalism
The Supreme Court just ruled in Georgia v. Randolph that, where a search is purely after evidence, it cannot be based on consent if both owners/tenants are present, one gives consent and the other refuses it.
What's interesting is that Justice Stevens (the most liberal member) concurs, with an opinion that implicitly takes a swipe at originalism. " In the 18th century, when the Fourth Amendment was adopted, the advice would have been quite different from what is appropriate today. Given the then-prevailing dramatic differences between the property rights of the husband and the far lesser rights of the wife, only the consent of the husband would matter. Whether “the master of the house” consented or objected, his decision would control. Thus if “original understanding” were to govern the outcome of this case, the search was clearly invalid because the husband did not consent." He goes on, of course, to note that things are different today. "In today’s world the only advice that an officer could properly give should make it clear that each of the partners has a constitutional right that he or she may independently assert or waive."
Justice Scalia files a dissent in response: "It is not as clear to me as it is to Justice Stevens that, at the time the Fourth Amendment was adopted, a police officer could enter a married woman’s home over her objection, and could not enter with only her consent. Nor is it clear to me that the answers to these questions depended solely on who owned the house. It is entirely clear, however, that if the matter did depend solely on property rights, a latter-day alteration of property rights would also produce a latter-day alteration of the Fourth Amendment outcome—without altering the Fourth Amendment itself.
Justice Stevens’ attempted critique of originalism confuses the original import of the Fourth Amendment with the background sources of law to which the Amendment, on its original meaning, referred. From the date of its ratification until well into the 20th century, violation of the Amendment was tied to common-law trespass.... The issue of who could give such consent generally depended, in turn, on “historical and legal refinements” of property law. United States v. Matlock, 415 U. S. 164 , n. 7 (1974). As property law developed, individuals who previously could not authorize a search might become able to do so, and those who once could grant such consent might no longer have that power. But changes in the law of property to which the Fourth Amendment referred would not alter the Amendment’s meaning: that anyone capable of authorizing a search by a private party could consent to a warrantless search by the police."
He adds "Finally, I must express grave doubt that today’s decision deserves Justice Stevens’ celebration as part of the forward march of women’s equality. Given the usual patterns of domestic violence, how often can police be expected to encounter the situation in which a man urges them to enter the home while a woman simultaneously demands that they stay out? The most common practical effect of today’s decision, insofar as the contest between the sexes is concerned, is to give men the power to stop women from allowing police into their homes—which is, curiously enough, precisely the power that Justice Stevens disapprovingly presumes men had in 1791."
A few days ago, the Court (per Justice Scalia) handed US v. Grubbs, in which Justice Souter's concurrence (joined by Stevens) noted, with regard to anticipatory warrants and Scalia's reference to the 4th amendment's text, " The notation of a starting date was an established feature even of the objectionable 18th-century writs of assistance, see, e.g., Massachusetts Writs of Assistance Bill, 1762, reprinted in M. Smith, The Writs of Assistance Case 567–568 (1978); Writ of Assistance (English) of George III, 1761, reprinted in id., at 524–527. And it is fair to say that the very word “warrant” in the Fourth Amendment means a statement of authority that sets out the time at which (or, in the case of anticipatory warrants, the condition on which) the authorization begins."