On the 4th Amendment, 3rd Party Consent, and Fernandez v. CA

We’re following an interesting case in the Supreme Court called Fernandez v. California this term (OT13).  “Interesting” and the 4th amendment = redundant.  We know.  But this case involves a particular area of law that many of our friends, family members, and students could be impacted by.  The issue at hand, in laypeople language, is whether a 3rd-party individual, like a co-habitant, roommate, girlfriend, boyfriend, or landlord, may give police consent to search the home of a criminal suspect.  Before you panic about the contents of your bedside table drawers, take a deep breath, read the facts of this case and double-check with an attorney in your state.

5-cent rundown:  Suspecting Walter Fernandez was involved in a gang-related crime, police went to his home to question him.  Soon after police arrived, they heard a domestic dispute and found Fernandez’s girlfriend – who also lived at the home – bloody and bruised.

 After stating that he did not give authority for the police to enter his home, he was removed for allegedly causing the domestic abuse and taken to the police station for further questioning.  The police officers returned to his home an hour later and searched his home after receiving consent from Fernandez’s girlfriend.  Inside they seized a knife and a gun that were submitted as evidence against him.  A lower court ruled the evidence was taken after consent was legally given by the co-habitant – Fernandez’s girlfriend – and could be used against him.  Mr. Fernandez’s attorney argued in the SCOTUS that the state violated his 4th amendment right which protects him from unreasonable searches and seizures.

10-cent rundown:  A bad situation turned worse for Walter Fernandez when police showed up at the home he shared with a girlfriend and their two kids on October 12, 2009.  LAPD officers came to his residence wanting to question Fernandez about a gang-related assault that robbery witnesses claimed he’d been a part of.  When they arrived at the Fernandez home, Roxanne Rojas – Fernandez’s girlfriend – answered the door bloody and bruised.  Fernandez appeared from a separate room and shouted at the officers “Get out. I know my rights. You can’t come in.”  The police removed Fernandez from the apartment to investigate possible domestic violence against Ms. Rojas, and soon after charged him with robbery and assault when a witness properly ID’d him on the scene.   One hour later, LAPD officers returned to the apartment and requested consent to search from Ms. Rojas.  She approved both orally and in writing.  As a result of the warrantless search, police removed clothing, a shotgun, a knife and ammo as evidence to be used in the case against Fernandez.

The question presented in the case before the Supreme Court today involves whether the police can obtain valid consent from a co-occupant when another occupant who denied permission has been removed from the scene by officers.

One case that supports Fernandez’s contention that the evidence should be suppressed is Georgia v. Randolph (2006).  In this case the SCOTUS held that “a physically present co-occupant’s stated refusal to permit entry” makes the results of a search inadmissible in a 5-3 decision.

Since Fernandez was no longer on the scene to protest the second search his girlfriend consented to, that search and seizure of evidence by police was supported in California’s brief citing, among other cases, Illinois v. Rodriguez (1990) and United States v. Matlock (1974).  In Matlock, the Supreme Court found that the “consent of one who possesses common authority over premises or effects is valid as against the absent, non-consenting person with whom that authority is shared.”  Rodriguez further articulated the “co-occupant consent rule” by holding that the police only need to have a reasonable belief that the person granting permission to search has the authority to grant such authority to officers.

There’s a great post on SCOTUSblog from Orin Kerr here articulating what he thinks is likely to happen based on the circumstances in Fernandez and SC precedent.  Oyez has another helpful description here, and both you’ll want to link back to once the oral arguments go up.

UPDATE:  Audio link to the oral arguments is here, compliments of Oyez.

UPDATE & DECISION:  [Fernandez v. CA; decided February 25, 2014]

In a 6-3 decision, Justice Alito authored the majority opinion (joined by Justices Thomas, Scalia, Roberts, Kennedy, and Breyer) and supported the respondent in Fernandez v. California.  Siding with California, the majority found the search and seizure of Fernandez’s home legal and not a violation of his 4th Amendment rights.  Although in both Fernandez and GA v. Randolph police faced allegations of domestic disturbances (abuse in Fernandez’s case), one resulted in removal of an occupant allowing police to request and receive permission to search the home while the other did not as both occupants remained present in the home.  In the latter (Randolph), it was fair to deny police their request to search because the physical presence of an occupant saying “no” was justification enough.  But in Fernandez, no such physical denial existed when police asked and received permission from a legitimate co-occupant such as Fernandez’s girlfriend and the mother of his two children.  Despite his initial denial the first time police came to the home, once he was removed, such a denial doesn’t carry a time-stamp ensuring police may never ask again.  Justice Alito asked and basically answered this question in his majority opinion: “How long would such an objection remain binding? A week? A month? A year? Ten years?”  It’s worth noting that although police were the reason for his absence, they were not the cause nor was it the result of wielding of unjustified efforts to rid of him of the home to attain consent from the girlfriend.  Recall that police had either a domestic abuser and/or an individual involved in a gang-related crime refusing allowance of the search.

What troubled the three Justices who dissented–the Ladies of the Court (Ginsburg, Sotomayor, Kagan)–was the absence on the part of the police to obtain a warrant prior to the search of the home and seizure of evidence.  In short, it seemed to the minority that there was time to get a warrant before performing the search.  Justice Ginsburg, in her dissent, called the majority opinion a severe blow to 4th Amendment protections citizens have from warrantless home intrusions by government officials.  “In this case, police could have readily obtained a warrant.  The Court does not dispute this, but instead disparages the warrant requirement as inconvenient, burdensome, entailing delay even with modern technological advances.  Shut from the Court’s sight is the ease and speed with which search warrants nowadays can be obtained.” (Opinion here)

The takeaway:

As teachers, regularly we are asked in criminal justice units on the 4th Amendment and police procedure”So when do police need to get a warrant and when don’t they?!?”  This is an eternal question that comes up when looking at precedent setting cases that seem to define and yet blur the answer.  The  case was no different.  With the rise in technological advances even in the public sector – slow though it may be – courts and warrant-issuing magistrates are equipped with resources that enable police to get a warrant within minutes, depending on the case and probable cause demonstrated.  No less, many times situations arise in which circumstances beyond police control negate the ability or premeditated thought that a warrant would even be needed.  As Justice Alito expressed in his majority opinion, warrants cannot hamstring police from doing their jobs to protect and serve.

What do you think?

Need more sources to decide?  We liked these: Adam Liptak’s article on the NY Times, CSMonitor’s post, SCOTUSBlog’s coverage, and the Opinion of The Court.