Under recent U.S. Supreme Court precedent, police may not search a residence without a warrant if any other resident objects, even if another resident gives consent. A new ruling, however, holds that the objecting resident must be physically present to prevent the search. Fernandez v. California, No. 12-7822, slip op. (Sup. Ct., Feb. 25, 2014). Justice Alito, writing for a 6-3 majority, stated that allowing any resident to object to a warrantless search while not present would create “practical problems” for police officers. A dissenting opinion written by Justice Ginsberg notes that most of the majority’s practical concerns could be eliminated with a search warrant obtained in accordance with the Fourth Amendment to the United States Constitution.
In United States v. Matlock, 415 U.S. 164 (1974), and Illinois v. Rodriguez, 497 U.S. 177 (1990), the Supreme Court held that police may conduct a warrantless search of a resident with the consent of a resident other than the defendant. The court created an exception to this rule, however, in Georgia v. Randolph, 547 U.S. 103 (2006). Police responding to a domestic disturbance with allegations of drug use were denied consent to search the premises by the defendant, but obtained consent from his wife. The Supreme Court ruled that “a physically present co-occupant’s stated refusal to permit entry” prevented the police from conducting a warrantless search. Id. at 106.
In the present case, the defendant was accused of committing robbery and other offenses. A witness reportedly told police officers that the defendant was in a nearby apartment. The officers found the defendant at the apartment with his domestic partner and their four year-old son. The defendant expressly denied consent to enter the apartment. The officers removed him from the apartment and placed him under arrest for suspicion of domestic violence. About an hour later, police returned to the apartment, and the woman consented to a search that turned up evidence of the robbery, weapons and ammunition, and gang paraphernalia.
The defendant moved to suppress the evidence obtained in the apartment on the grounds that the officers did not have consent for the search. The trial court denied the motion, and a jury convicted him of robbery and assault. The California Court of Appeals affirmed the verdict, finding that Randolph did not apply because the defendant was not present when consent was given. 208 Cal.App.4th 100, 122 (2012). The Supreme Court affirmed as well. Justice Alito noted that expanding Randolph to situations where the objecting resident was not present would “produce a plethora of practical problems,” such as the duration of the objection, the authority of the resident to object, and the need “to register a continuing objection.” Fernandez, slip op. at 12-13. In short, Justice Alito worried about a “slippery slope.”
Justice Ginsberg’s dissent, joined by Justices Sotomayor and Kagan, noted that “it blinks reality to suppose that [a resident withholding consent] could stop police in their tracks eternally. Id. at 5 (J. Ginsberg, dissenting). She observed that, once the defendant was under arrest, any “practical problems” were removed and police were free to obtain a warrant to search the premises.
If you have been charged with an alleged criminal offense, you should consult an experienced criminal defense attorney, who can help you understand their rights and prepare the best possible defense. Michael J. Brown has represented west Texas defendants criminal cases for over twenty years. Contact us today online or at (432) 687-5157 to schedule a confidential consultation to discuss your case.
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