Pubdate: 2 Dec 1998
Section: Sec. 1
Source: Chicago Tribune (IL)
Contact:  http://chicagotribune.com
Copyright: 1998 Chicago Tribune Company
Author: Jan Crawford Greenburg

JUSTICES LIMIT GUESTS' PRIVACY RIGHTS

WASHINGTON -- The Supreme Court ruled Tuesday that guests in a
person's home do not always have a constitutional protection against
warrantless police searches, particularly when they are visiting only
briefly or are there for business reasons.

The decision gives guests less protection against police searches than
the residents, but it does not prohibit all visitors from challenging
warrantless searches. The court said social guests--such as overnight
visitors and others with a significant connection to the home--still
could have a right to privacy.

"An overnight guest in a home may claim the protection of the 4th
Amendment, but one who is merely present with the consent of the
householder may not," Chief Justice William Rehnquist wrote for the
majority.

The decision was a defeat for two Chicago-area men, who argued that a
police officer violated their constitutional rights in 1994 when he
peered through the window blinds of a woman's apartment in Eagan,
Minn., and saw them packaging drugs inside. The men argued the
surveillance was an illegal search, in violation of the 4th Amendment,
and said the evidence obtained could not be used against them. The
Minnesota Supreme Court agreed.

But in a 6-3 vote, the Supreme Court said the state court was wrong.
Five of the justices said the men had no reasonable expectation of
privacy in the home because they were temporary visitors conducting
business. Therefore, they had no right to challenge the officer's
conduct as illegal, the court said.

A sixth, Justice Stephen Breyer, said the men had a right to challenge
the search, but that the officer did nothing wrong when he peered
through the blinds.

Justice Ruth Bader Ginsburg wrote a pointed dissent, saying the ruling
"undermines not only the security of short-term guests, but also the
security of the home resident herself."

Now, Ginsburg wrote, homeowners must assume "their invitations to
others increase the risk of unwarranted governmental peering and
prying into their dwelling places."

"In my view, when a homeowner or lessor personally invites a guest
into her home to share in a common endeavor, whether it be for
conversation, to engage in leisure activities, or for business
purposes licit or illicit, that guest should share his host's shelter
against unreasonable searches and seizures," Ginsburg wrote in her
dissent, which was joined by Justices John Paul Stevens and David Souter.

Steven Shapiro, legal director of the American Civil Liberties Union,
echoed those viewpoints, saying the ruling "runs contrary to the
everyday assumptions that govern the lives of most Americans."

"This is another example of how our privacy rights are being
sacrificed as part of the so-called war on drugs," Shapiro said.

The court's ruling reinstates the convictions of Wayne Carter, 38, of
Homewood, and Melvin Johns, who also lives in the Chicago area. But
Scott Swanson, Carter's lawyer, said the decision was not the
far-reaching defeat he and other criminal defense attorneys had feared.

"For our clients, it's bad news, but, interestingly, five of the
justices say social guests have standing (to challenge police
searches)," said Swanson, a Minnesota assistant state public defender.
"We won the war, but we lost the battle."

The case was being closely watched because state prosecutors had
argued that guests in a person's home have no legal right to protest
the search of the home. That argument could have applied to everyone
from temporary visitors, such as the Avon lady and the pizza delivery
man, to more established company, such as the baby-sitter or the
poker-playing buddy.

Defense attorneys also had worried that, even if the court said the
men had a right to challenge the search, it would ultimately approve
of the officer's conduct. Giving police that much authority, Swanson
said, would "change the nature of the republic."

The case came about after a police officer, acting on an informant's
tip, peered through a gap in the drawn Venetian blinds of an apartment
and saw the two men and the apartment resident inside bagging cocaine.
That surveillance, which the men argued was illegal, had caused some
to dub it "the Peeping Tom" case.

In its ruling, however, the Supreme Court never reached the "Peeping
Tom" issue because it said the men were short-term guests visiting for
a commercial transaction and, therefore, have no expectation of
privacy. As a result, the court said, they could not challenge the
officer's conduct as illegal.

"Respondents here were obviously not overnight guests but were
essentially present for a business transaction and were only in the
home a matter of hours," Rehnquist wrote.

Justice Antonin Scalia wrote a separate concurrence, which Justice
Clarence Thomas joined, suggesting that guests never have a right to
challenge the search of another's home. Scalia pointed to the wording
in the Constitution, which ensures people will be free from
unreasonable searches of "their persons (and) houses."

That language, Scalia said, means people cannot be subject to
unreasonable searches of their own houses. It does not apply to the
houses of others, he wrote.

Scalia argued that a 1990 Supreme Court case, in which the justices
said overnight guests could challenge police searches, "went to the
absolute limit of what text and tradition permit." That earlier ruling
is plausible, he said, only because a person's overnight lodging can
be considered a "temporary" residence, he said.

Justice Anthony Kennedy, however, saw things differently, suggesting
it would be difficult for the court to further limit the right of
guests to challenge searches. In his concurrence, Kennedy, often a
critical swing vote, said "almost all social guests" have a right to
privacy.

The defendants in the case did not, he said, because they "established
nothing more than a fleeting and insubstantial connection with (the)
home."

The men used the home, Kennedy wrote, "simply as a convenient
processing station, their purpose involving nothing more than the
mechanical act of chopping and packing a substance for
distribution."

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Checked-by: Rich O'Grady