Higher Court Struggles Over Consent To Search Issue

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Higher Court Struggles Over Consent To Search Issue
WASHINGTON — 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 Fernandez’ 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: “You don’t have any right to come in here. I know my rights.”

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 Court’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 defendant’s petition for review, the Supreme Court granted his petition for certiorari.

вЂ˜It’s her house, too’

Jeffrey L. Fisher, a professor at Stanford Law School in Stanford, Calif., argued on the defendant’s behalf that when a cotenant consents, there is a “rebuttable presumption” that he or she speaks for all occupants. But when the police know otherwise, that presumption must be reversed.

“When the police full well know that one person doesn’t have a delegated authority to speak for the others, they must respect the objection,” Fisher said. “And a failure to do so violates the Fourth Amendment.”

Justice Stephen Breyer said he was “bothered” by the idea of a battered spouse not being allowed to let police into her home.

“It’s her house, too,” Breyer said. “Can’t she invite people into her house, too, whom she wants, including the policeman? … That’s the example that keeps gnawing on my mind.”

Fisher said that a spouse in that situation “may well be able to invite the police into the dwelling sometimes, but that’s very different than what’s going on here.”

Fisher stressed that Fernandez was present and made a Randolph objection to the search, but was led away involuntarily by police.

“He was in custody for 500-plus days,” Justice Anthony Kennedy pointed out. “For all that time, the wife cannot invite the police? … She can’t get a policeman to assist her for 500 days? This is not Randolph. This is a vast extension of Randolph.”

Fisher tried to give the justices a more limited basis on which to rule in the defendant’s favor.

“I think you can decide the case on a more narrow ground,” he said. “It’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 … voluntary accommodation has to be the solution.” That would allow the objecting tenant to “have a conversation with the cotenant, try to work out the solution to the problem.”

Chief Justice John G. Roberts Jr. wondered how workable that solution was.

“What’s the conversation between the husband and the battered wife, bleeding and holding the four-year-old baby, going to look like?” he asked.

вЂ˜Get a warrant’

California Deputy Attorney General Louis W. Karlin argued that the cotenant had equal rights to allow a police search of the home.

“Everyone knows that when they choose to live together and one person is absent the other person has the authority” to consent to a search, he said.

Breyer said that the court’s precedent stood in the way of that interpretation.

“I don’t see how I could write that without saying I was wrong in Randolph, [when] I still think I was right,” Breyer said.

Justice Elena Kagan agreed.

“I thought that Randolph rejected that analysis. I thought that Randolph said … and I’m quoting here, вЂ˜The cooperative occupant’s invitation adds nothing to the government’s side to counter the force of an objecting individual’s claim to security against the government’s intrusion into his dwelling place.’”

“In this case when the objection was made, the police weren’t searching,” Karlin said. “When the police went to search, there was only one occupant there.”

Joseph R. Palmore, assistant to the U.S. solicitor general arguing as amicus in support of California, said “an individual’s consent to admit visitors into her own home may not be prospectively negated by the earlier objection of an absent tenant.”

“Did they have probable cause to get a warrant?” asked Justice Sonia Sotomayor.

“I think they almost certainly did have probably cause to get a warrant,” Palmore said.

“How about a clear answer: Get a warrant,” Sotomayor said.

A decision is expected later this term.