Supreme Court Preview: Not In My House!—The Court Revisits Consent Searches Of Jointly Held Property

Posted On Thursday, October 3, 2013

We conclude our Supreme Court Preview with a return to one of the key questions in criminal law: when can you tell the cops to buzz off?  Or, to put a finer point on it, if you tell the cops to buzz off, when do they have to listen to you?

(Note: White Collared does not advocate telling anyone to buzz off ever.  It’s just rude).

Based on prior cases in this area, expect the Court to be closely (and perhaps bitterly) divided when it decides Fernandez v. California.

Argument Date: November 13, 2013

What Happened?: Police responding to a report of a robbery followed leads to the apartment of Walter Fernandez.  Fernandez told them, “You don’t have any right to come in here.  I know my rights.”  He was arrested and taken from the scene.  The police then secured the apartment and asked Fernandez’s girlfriend, who also lived there, if they could conduct a search.  She consented.  Inside the apartment, the officers found evidence linking Fernandez to the robbery.  Fernandez moved to suppress the evidence at trial but lost and was convicted.  His conviction was affirmed on appeal. 

Question Presented: Whether, under Georgia v. Randolph, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of Fourth Amendment rights which cannot be overridden by a co-tenant.

In English, Please: Generally speaking, the Fourth Amendment prevents government officials from searching someone’s home without a warrant.  But there are a variety of exceptions, including when the owner (or tenant) gives consent.  In Georgia v. Randolph, the Court ruled that when two people live together, police cannot use the consent of one resident as justification to conduct a warrantless search if the other resident is present at the time of the search and objects.  This case raises the question whether, if one resident objects to the search but then is arrested and removed from the scene, police can go back and get permission from the remaining resident. 

Court Below/Winner: California Court of Appeal/Government

What the Defendant Is Saying:  “[I]f this Court’s precedent means anything, it . . . dictates that the police did not nullify the legal effect of petitioner’s invocation of his constitutional right against a warrantless search of his home simply by arresting and removing him from the scene.”

What the Government Is Saying: “The Fourth Amendment does not confer greater rights upon persons, like petitioner, who are subject to criminal investigation, over persons, like [his girlfriend],who have equal privacy interests in their own house.  Inherent in shared living arrangements is the mutual understanding that in one’s absence the other may admit visitors into shared spaces.”

Why It Matters: Since Randolph came down in 2006, lower courts have grappled with how to balance the rights of criminal defendants to limit warrantless searches by police against the rights of co-tenants to consent to such searches.  A win for the government here would limit Randolph’s reach and limit the privacy protection afforded by the traditional requirement that law enforcement seek a warrant before searching a home.