Pubdate: Tue, 09 Nov 2004
Source: Atlanta Journal-Constitution (GA)
Copyright: 2004 The Atlanta Journal-Constitution
Contact: http://www.ajc.com/opinion/content/opinion/letters/sendletter.html
Website: http://www.accessatlanta.com/ajc/
Details: http://www.mapinc.org/media/28
Author: Bill Rankin, Staff

COURT RESTRICTS WARRANTLESS SEARCHES

Police cannot enter a home to conduct a warrantless search if one
spouse consents but the other does not, the Georgia Supreme Court
ruled Monday. In a 4-3 ruling, the court threw out evidence of cocaine
use by an Americus lawyer stemming from a July 2001 search of his home.

Writing for the majority, Justice Robert Benham said that such an
issue --- the presence of joint occupants with one consenting to a
warrantless search and the other objecting --- had never reached the
state's highest court before.

The search occurred after the wife of lawyer Scott Fitz Randolph
called police to report a domestic disturbance. After police arrived,
Mrs. Randolph accused her husband of using large amounts of cocaine.

When the police sergeant asked to search the house, Randolph responded
with an unequivocal no, but his wife consented, the ruling said. She
took the sergeant to an upstairs bedroom, where he saw a piece of cut
straw on a dresser with some white residue.

Randolph later was indicted on charges of cocaine possession. A Sumter
County judge rejected a motion by Randolph's lawyer to suppress the
evidence on the grounds that it was the fruit of an illegal search.
But the judge allowed Randolph, who has remained free on bond, to file
a pretrial appeal.

Last December, in a 5-2 decision, the Georgia Court of Appeals found
the search unconstitutional. On Monday, the Georgia Supreme Court
affirmed that finding.

"It's the right decision," said Randolph's lawyer, W.T. Gamble III.
"One person can't trump another person's rights. It's different if
only one person is home and consents. But when you're both there and
one of them objects, that's another story."

Assistant District Attorney Richard Thomas said the drug case against
Randolph is gutted without evidence from the search. Thomas said his
office is considering an appeal to the U.S. Supreme Court.

Justice Carol Hunstein dissented from Monday's ruling. "Once
Randolph's wife gave valid consent to the search of the home she
shared with Randolph, that was sufficient to authorize the search,"
wrote Hunstein, who was joined by Justices George Carley and Harris
Hines.

Also on Monday, the state Supreme Court ruled that a polygraph test
can be admitted into evidence, over a prosecutor's objection, during
the penalty phase of a capital trial if a trial judge finds the test
reliable. Marvin Lee Height, charged with killing a Laurens County
store owner in 2001, passed a GBI-administered lie detector test
before being indicted for murder.

In another decision, the court held that expert testimony regarding
infant sleep positioning is admissible in a lawsuit alleging negligent
child care supervision. In that case, a Catoosa County jury awarded $1
million to a family whose 8-week-old son died after being placed on
his stomach in a crib for a nap at a day school in Ringgold.
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