High Court Struggles Over Consent to Search
WASHINGTON вЂ” During a lively Wednesday oral argument, the justices of the U.S. Supreme Court seemed torn over whether police can conduct a warrantless search of a home over the previous objection of a tenant when a co-tenant subsequently consents.
The case of Fernandez v. California, No. 12-7822, involves the warrantless search of the Los Angeles home of defendant Walter Fernandez. Police came to FernandezвЂ™ apartment after witnesses reported seeing a robbery suspect run into the premises.
When police knocked on the door, Roxanne Rojas answered. She was holding a child and showing signs that she had been beaten, including blood on her clothing. Fernandez also appeared at the door, telling police: вЂњYou donвЂ™t have any right to come in here. I know my rights.вЂќ
Suspecting domestic violence, the police took Fernandez into custody. Witnesses to the earlier robbery identified Fernandez as the perpetrator.
About an hour later, police returned to the apartment and Rojas consented to a search, which produced evidence that included clothing matching the description of the robber, a knife and a gun.
The defendant was charged with several crimes, including burglary with enhanced factors for allegedly using a knife while committing the crime. He moved to suppress the evidence from the search of his home, arguing that he had not consented to the warrantless search.
The trial court denied the motion, ruling that Rojas, as a cotenant, had consented to the search.
The California Court of Appeal affirmed. The court distinguished the Supreme CourtвЂ™s ruling in the 2006 case Georgia v. Randolph, No. 04-1067, which held that a cotenant cannot consent to a warrantless police search of a home when the co-occupant is present and objecting. Here, the court reasoned, the objecting tenant was no longer present when the search took place.
After the California Supreme Court denied the defendantвЂ™s petition for review, the Supreme Court granted his petition for certiorari.
вЂItвЂ™s her house, tooвЂ™
Jeffrey L. Fisher, a professor at Stanford Law School in Stanford, Calif., argued on the defendantвЂ™s behalf that when a cotenant consents, there is a вЂњrebuttable presumptionвЂќ that he or she speaks for all occupants. But when the police know otherwise, that presumption must be reversed.
вЂњWhen the police full well know that one person doesnвЂ™t have a delegated authority to speak for the others, they must respect the objection,вЂќ Fisher said. вЂњAnd a failure to do so violates the Fourth Amendment.вЂќ
Justice Stephen Breyer said he was вЂњbotheredвЂќ by the idea of a battered spouse not being allowed to let police into her home.
вЂњItвЂ™s her house, too,вЂќ Breyer said. вЂњCanвЂ™t she invite people into her house, too, whom she wants, including the policeman? вЂ¦ ThatвЂ™s the example that keeps gnawing on my mind.вЂќ
Fisher said that a spouse in that situation вЂњmay well be able to invite the police into the dwelling sometimes, but thatвЂ™s very different than whatвЂ™s going on here.вЂќ
Fisher stressed that Fernandez was present and made a Randolph objection to the search, but was led away involuntarily by police.
вЂњHe was in custody for 500-plus days,вЂќ Justice Anthony Kennedy pointed out. вЂњFor all that time, the wife cannot invite the police? вЂ¦ She canвЂ™t get a policeman to assist her for 500 days? This is not Randolph. This is a vast extension of Randolph.вЂќ
Fisher tried to give the justices a more limited basis on which to rule in the defendantвЂ™s favor.
вЂњI think you can decide the case on a more narrow ground,вЂќ he said. вЂњItвЂ™s enough to decide this case, and indeed, the vast majority of lower court cases, to say so long as the police make it impossible for somebody to enforce the Randolph objection вЂ¦ voluntary accommodation has to be the solution.вЂќ That would allow the objecting tenant to вЂњhave a conversation with the cotenant, try to work out the solution to the problem.вЂќ
Chief Justice John G. Roberts Jr. wondered how workable that solution was.
вЂњWhatвЂ™s the conversation between the husband and the battered wife, bleeding and holding the four-year-old baby, going to look like?вЂќ he asked.
вЂGet a warrantвЂ™
California Deputy Attorney General Louis W. Karlin argued that the cotenant had equal rights to allow a police search of the home.
вЂњEveryone knows that when they choose to live together and one person is absent the other person has the authorityвЂќ to consent to a search, he said.
Breyer said that the courtвЂ™s precedent stood in the way of that interpretation.
вЂњI donвЂ™t see how I could write that without saying I was wrong in Randolph, [when] I still think I was right,вЂќ Breyer said.
Justice Elena Kagan agreed.
вЂњI thought that Randolph rejected that analysis. I thought that Randolph said вЂ¦ and IвЂ™m quoting here, вЂThe cooperative occupantвЂ™s invitation adds nothing to the governmentвЂ™s side to counter the force of an objecting individualвЂ™s claim to security against the governmentвЂ™s intrusion into his dwelling place.вЂ™вЂќ
вЂњIn this case when the objection was made, the police werenвЂ™t searching,вЂќ Karlin said. вЂњWhen the police went to search, there was only one occupant there.вЂќ
Joseph R. Palmore, assistant to the U.S. solicitor general arguing as amicus in support of California, said вЂњan individualвЂ™s consent to admit visitors into her own home may not be prospectively negated by the earlier objection of an absent tenant.вЂќ
вЂњDid they have probable cause to get a warrant?вЂќ asked Justice Sonia Sotomayor.
вЂњI think they almost certainly did have probably cause to get a warrant,вЂќ Palmore said.
вЂњHow about a clear answer: Get a warrant,вЂќ Sotomayor said.
A decision is expected later this term.