tag:blogger.com,1999:blog-34853720.post6843433132853070733..comments2023-08-24T10:39:23.460-04:00Comments on CAAFlog: Kreskin = CAAFlog: CAAF grants review in WestonDwight Sullivanhttp://www.blogger.com/profile/11657981110237418710noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-34853720.post-71655254018252502482008-12-17T07:48:00.000-05:002008-12-17T07:48:00.000-05:00This is an interesting case. I think that the ans...This is an interesting case. I think that the answer may depend more on where one perceives the genesis of the property right. Some tend to focus on the property itself and see property rights as rooted in the property. Others tend to focus on the person and see property rights as rooted in personhood, with the property being an accidental phenomenon.<BR/><BR/>So, in Randolf, the "physical presence" of the "refuser-of-consent" held a lot of weight. But we can't know whether the Supremes were focused on the person or the property. After all, the "refuser-of-consent" was at the fabled threshold, the infamous common-law curtilege. <BR/><BR/>The question in Randolf was whether an evidentiary seizure was lawful with the permission of one occupant when the other was present at the scene and expressly refused to consent.<BR/><BR/>Was the "physical presence" at the scene critical?<BR/><BR/>I guess we will find out in this case. <BR/><BR/>Randolf held that, a physically present co-occupant's stated refusal to permit entry trumps all, rendering a warrantless search unreasonable and invalid as to the "refuser-of-consent."<BR/><BR/>There is language in passing in Randolf to suggest that if the police physically remove a "refuser-of-consent" from the area, that removal is invalid and would be problematic for establishing valid consent from the remaining "granter-of-consent."<BR/><BR/>As to my irrelevant opinion: I believe property rights are rooted in people, not places. Katz v. United States, 389 U.S. 347 (1967). So I don't see how being at a police station magically renders a different result than the same combination of consent/refusal at the home.<BR/><BR/>Prediction: Stucky and Ryan go the conservative route pronounced by Roberts, Scalia and Thomas.Anonymousnoreply@blogger.com