Supreme Court Rules On Warrantless Searches
I wrote about this case previously so you will see my original post below (including my inaccurate predictions.. we don’t hide our mistakes). The case involved a situation where one resident of an apartment objected to a police search but the other consented (or is alleged to have consented) to it.
The court in this matter ruled 6-3 that the police were justified in the warrantless search, a ruling which leaves me unsettled (though this is not the disaster some have positioned it as).
As noted in the posting below, it has been established that an adult resident of a home/apartment/etc can give consent for a search and that search is valid even against those not present.
However if another resident is present and objects, the police must get a warrant. In the past the issue had been when the other resident voluntarily left while in this case it was the police who arrested and took away the person objecting.
The lower courts had said the search was valid and the US Supreme Court voted 6-3 to agree (the four conservatives, Kennedy and Breyer in majority).
I find this ruling troubling on several levels
First, we have a situation where the police acted to remove the defendant from the property. I’ve had conversations with law enforcement officers and they assure me that if they really want to handcuff someone and take them in, they can find a reason to do it.
Of course most officers would not contrive such circumstances but this case certainly seems to provide incentive to do so.
Second, to the degree the girlfriend consented, it appears to me she was coerced by threats that her child would be taken away. Even if the arrest was legitimate how can you say the consent was under such circumstances.
Third, you have a question of what the police did to determine if she actually had authority to consent. How do they know she actually had legal authority to consent.
Finally, why didn’t they just get a warrant ?
It doesn’t seem that there was any emergency, the suspect was arrested and they could have stationed an officer to watch over things. Given that the defendant was suspected of both assault and spousal abuse I doubt it would have been that hard to get a warrant.
Now having vented a bit about my concerns the fact is that this case probably won’t have that much impact. In most cases they are either going to have proper consent or get a warrant. But the idea of liberty is sometimes more important than the reality of day to day operations and whenever it is limited we suffer for it.
For more background here is my original posting on the case of Fernandez v. California
This case involves 4th amendment issues regarding consent of a co-tenant in the search of a defendant’s residence.
While the courts have previously examined this issue the case pending here offers a somewhat unique perspective.
This particular case is set for argument before the court on November 13th
Things began in 2009 when a man named Abel Lopez was robbed and cut with a knife by a man who told him “DFS rules here”.
When police arrived they determined that DFS referred to a local gang and subsequently were told by a local resident that the suspect was in a particular apartment. Upon approaching the apartment officers could hear sounds of yelling and fighting coming from within the apartment.
The police officers gathered additional backup and went to the apartment and knocked on the door. This apartment was occupied by the defendant Fernandez, his girlfriend (Rojas) and two children. The woman had a bump on her nose and some blood on her shirt and she told the officers she had been in a fight.
Just as the officers were preparing to ask her to step outside so they could continue the investigation Fernandez entered the room and told the officers that he knew his rights and that they had no right to be there.
The officers then took a few steps into the apartment and formally arrested the suspect while other officers conducted a protective search of the apartment to confirm no other suspects were inside. The concept of a protective search (where no evidence can be obtained but the officers can secure the location) is well established in the law and generally supported by both sides of the political/legal fence.
Officers then took the then suspect to the victim and he identified Fernandez as his attacker, the police then took him to the police station and booked him on assault charges.
About an hour later the police returned to the apartment to speak with Rojas and her 4 year old son. The questioned the two separately and when she objected to taking her son away her complaint was rebuffed and she was told “this is going to determine if we take away your children or not”. At this point she dropped her objections.
Meanwhile the son told police that Fernandez had hit Rojas and according to the police Rojas said the same thing though she denied this at trial saying she had been in a fight with another woman.
About 30 minutes into the questioning the police asked Rojas to consent to a search and told her that if she did not consent they would get permission from a judge. Although she later stated she did not want to allow the search she still signed the form because “she wanted to get it over with”
Police then searched the apartment. They never sought a warrant. In the search they discovered a shotgun, a sweater matching the clothing worn by Lopez’s attacker and clothing suggesting gang membership.
Fernandez was charged with robbery, corporal injury on a child’s parent and 3 counts of illegal weapons possession.
Fernandez moved to suppress all of the evidence and his motion was denied. The court held that while Rojas may have felt pressured but that does not necessarily equal duress or coercion under the law. The court stated
“She felt as pressured as anyone with a cop standing in your kitchen are going to feel but that’s not against the law to constitute duress”
Fernandez subsequently pled nolo contendere to the charges with the proviso that he reserved the right to appeal the denial of his suppression motion. The California Court Of Appeal affirmed the convictions and the case was appealed to the USSC.
The controlling case in this context is Georgia v. Randolph (2006) 547 US 103.
Respondent Scott Randolph and his wife, Janet Randolph were living together having briefly separated earlier in the year. She then called the police to complain about a domestic dispute alleging her husband had taken her son away. She also told police he was a drug user.
After a time Randolph returned and denied the charges and said she was the one who was a drug user. He specifically denied permission for a search but his wife gave the police permission. An officer searched the house and discovered what he suspected was cocaine laden straw.
The officer went to obtain an evidence bag and radio the DA’s office. He was told to stop the search. When he returned to the house Mrs. Randolph withdrew permission. The office took only the drinking straw and arrested both husband and wife and then applied for a warrant.
At trial the defendants moved to suppress the evidence on the grounds that once Mr. Randolph denied permission that his wife could not override him. While the lower courts denied his motion the USSC ruled 5-3 in his favor holding that:
The question here is whether such an evidentiary seizure is likewise lawful with the permission of one occupant when the other, who later seeks to suppress the evidence, is present at the scene and expressly refuses to consent.
We hold that, in the circumstances here at issue, a physically present co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him.
In this case however we have a twist because the police arrested Mr. Fernandez and took him away from the house so he was not physically present to object to the search.
Speaking purely from my own personal opinion I do not see how this is a legitimate search. The court had established a clear rule that a defendant could object to the search as long as he was present and the police here basically contrived to make him no longer present so he could not object.
Looking to the Randolph case we had a majority made up of Souter, joined by Stevens, Kennedy, Ginsburg, Breyer with Roberts, Scalia and Thomas in dissent and Alito not participating.
Since then we’ve seen Souter and Stevens replaced by Sotomayor and Kagan but I would expect those votes to remain unchanged while I suspect Alito will this time vote with the dissenters.
That would give us a 5-4 vote to find the search invalid though it is possible Scalia could change because of his views on precedent.