Widening Permissible Warrantless Home Searches
By Teresa Rider Bult, Litigation News Associate Editor – June 30, 2014

Even when one occupant explicitly objects, police can now search homes without a warrant, as long as the objecting occupant is not physically present and another occupant provides consent, the U.S. Supreme Court recently held. Fernandez v. California.

In Fernandez v. California, the police tracked down a perpetrator in a violent gang-related robbery to a nearby apartment. When they arrived at the apartment, a beaten and bloody woman answered the door and denied knowing the alleged perpetrator. When the alleged perpetrator nevertheless showed up at the apartment door, he informed the police they were not welcome in the apartment and should go away. Based on the description of the perpetrator from witnesses and the fact that there appeared to be evidence of domestic violence, the police arrested Fernandez and escorted him to the police station.

Instead of seeking a warrant to search the apartment, the police returned approximately an hour later and asked the same battered woman for access to the apartment. She ultimately acquiesced verbally and in writing. The police found substantial evidence in the apartment linking the perpetrator to gang violence and possession of illegal weapons. He was eventually convicted of robbery and willful infliction of corporal injury. The co-occupant later said that although she had consented to the search, she had done so because the police had implied they would remove her children if she refused.

Fernandez appealed, alleging that the police had improperly obtained access to his apartment in violation of the Fourth Amendment. In short, he alleged that he had specifically told the police they did not have permission to enter the property and that their access, only one hour later, violated the rule of Georgia v. Randolph. That Supreme Court case had held that police could not search the premises where a co-occupant who was physically present on the property objected.

Based on the Randolph rule, Fernandez argued that because he had physically been present when the police first arrived, and explicitly told them they could not enter the premises, that instruction was still valid an hour later when the police returned. He claimed it was inappropriate for the police to physically remove him from the apartment only to return to the premises and search it without any objection. Ergo, he argued, Randolph required that the warrantless search be declared invalid.

Co-Occupant’s Later Consent Is Valid
The Supreme Court disagreed. The Court found that case law “firmly established that police officers may search jointly occupied premises if one of the occupants consents,” and that Randolph had been a “narrow exception” to this rule. The majority held there were a multitude of valid reasons individual co-occupants should be able to consent to voluntary searches; to expand the Randolph logic would create practical nuances that would be difficult, if not impossible, for the police to decipher. For example, the Court questioned how long the “do not enter” instruction would last—one hour, one week, one year?

The opinion also rejected Fernandez’ argument that the tenant should not have to be physically present to lodge an objection to the search when the police are responsible for his absence. Instead, the Court found “an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason” and that a rule of “objective reasonableness” applied.

The dissent expressed concern that the opinion eroded privacy rights, observing that  “[p]olice, after all, have power no private person enjoys. Police can, as this case illustrates, put a tenant in handcuffs and remove him from the premises.”

Eroding Fourth Amendment Rights?
Some Section leaders worry that the holding in Fernandez may “chip away” at Fourth Amendment rights and open the door for more wide-ranging warrantless searches. “The fear is that the police will circumvent the assertion of rights, the denial of entry, by getting rid of the objecting tenant,” says Marissel Descalzo, Miami, FL, cochair of the Internal Investigations Subcommittee of the ABA Section of Litigation’s Criminal Litigation Committee. She points out that the law now essentially “permits police to get rid of an objecting tenant and then go back and coerce consent from the remaining tenant for entry.”

Descalzo believes the uneven power held by police is what causes concern and agrees with the dissent’s observation that police have unwieldy power. The real problem is consent, says Descalzo: “Consent can be and will be coerced.”

Finding an Objectively Reasonable Basis for Removal
The police may now be more inclined to physically remove an objecting tenant from the premises “to make an objection to the search null and void,” observes Darryl A. Goldberg, Chicago, IL, chair of the Trial/Evidence Subcommittee of the Section of Litigation’s Criminal Litigation Committee. He says the issue in these cases will be “whether law enforcement had an objectively reasonable basis to remove an objecting occupant from the premises.” If a court finds the police did not have such a basis, then the question may be whether they arrested the individual “to take another crack at consent from a co-occupant,” says Goldberg.

Warrant Could Have Easily Been Issued
The police’s effort to find the loophole in the Randolph rule “was unnecessary mischief, because the police could have easily obtained a search warrant, which would have fixed the problem,” says Descalzo.

Goldberg concurs that obtaining a warrant would have been the better approach in a case like this, where there seemed to be little risk that evidence would be removed or hidden. “In today’s digital world,” the rules allowing telephonic or electronic warrants are so prevalent that the process to obtain one is not onerous, Goldberg adds.

Notably, however, the majority in Fernandez specifically considered the fact that a warrant could have been issued and found the question did not change the analysis. Instead, the Court noted that it might not always be possible to get a warrant and that there are good reasons for exceptions to the warrant process. The majority further opined, “[e]ven with modern technological advances, the warrant procedure imposes burdens on the officers who wish to search, the magistrate who must review the warrant application, and the party willing to give consent.”

Now What?
From a practical perspective, this opinion may simply mean that “roommates, co-tenants, and spouses are going to need agreements between each other specifically agreeing not to consent to a police search without a warrant,” Descalzo says.

There may be ways to challenge the breadth of the opinion. “Despite the Court’s limitations and parsing of the holding in Randolph, you can carefully scrutinize and challenge the basis law enforcement’s removal of the objecting tenant,” says Goldberg. He believes future cases will focus on the “objective reasonableness” of the removal and intent of the officers involved.

Keywords: search warrant, warrantless searches, Fourth Amendment, search consent, Fernandez

 
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