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Can Police Search Your Home if You Object While Not Being Present?

The protection against unreasonable search and seizures is established by the Fourth Amendment to the United States Constitution. Law enforcement must either have your express consent or a valid warrant authorized by a judge in order to lawfully search your home, person or property.canstockphoto10492514.jpg

Most people understand that if police officers knock on your door and request access to your home, you do not have to give your consent for them to enter. However, it only takes one occupant of a household to give consent, even if the home is jointly owned, provided that the other occupant is not present at the time the police seek entry.

The U.S. Supreme Court decided in the case of Georgia v. Randolph 547 U. S. 103 (2006) that in situations where multiple occupants of a household are present, the consent of one person to a police search is not enough to override the objection of another. Any such search would be unreasonable.

In a case involving a robbery that turned into a domestic dispute between a couple from Los Angeles, the Supreme Court was asked to answer the question of whether this rule extends to situations where consent is given by one party but objected to by the other who is ultimately removed from the situation.

The U.S. Supreme Court’s ruling in this case could have a far-reaching impact. It could allow law enforcement to conduct a search of a household simply by taking away an objecting co-habitant, thereby removing him or her from the scene and then proceeding with the search based on the consent of the other occupant.

Fernandez v. California, 134 S. Ct. 1126 (2014)

Los Angeles police officers responded to an alleged robbery following a 911 call from Abel Lopez, who had reported he had been attacked by several men after cashing a check. The victim later identified Walter Fernandez as one of his attackers. Detectives investigated a nearby alley that was a known gang location where two witnesses told them that the suspect lived in an apartment.

Hearing screaming and fighting coming from the apartment, the detectives knocked on the suspect’s door. Fernandez’s girlfriend answered. Her consent to search was requested. However, Fernandez stepped forward and refused the detectives entry saying, “You don’t have any right to come in here. I know my rights.”

The girlfriend was red-faced, beaten and bloodied, and was holding onto an infant. She admitted she’d been in a fight. The police arrested Fernandez and took him into custody.

Police officers secured the apartment, informed the girlfriend that Fernandez had been arrested in connection with a robbery, and requested to search the apartment. She consented to the search verbally and in writing. During the search, officers found gang paraphernalia, a knife and a sawed-off shotgun but no evidence of anything stolen in the alleged robbery.

The defendant was charged with robbery (Cal. Pen. Code §211), corporal injury on a spouse, cohabitant or child’s parent (§ 273.5(a)), possession of a firearm by a felon (§12021(a)(1)), possession of a short-barreled shotgun (§12020(a)(1) and felony possession of ammunition (§12316(b)(1)).

At trial, the defendant moved to suppress the evidence seized during the search but the trial court denied the motion. A jury returned a guilty verdict on the robbery charge. Fernandez did not contest the charges for possession of firearms and ammunition. He was sentenced to 14 years in prison.

On appeal, the defendant argued that the trial court improperly denied his motion to suppress the search…a search the defendant objected to in the first place. The defendant appealed his case all the way up to the U.S. Supreme Court, which granted certiorari and accepted the case for review.

How Did the United States Supreme Court Rule?

The court determined that in this case, the defendant was not present when his girlfriend consented. However, he still argued that the ruling in Georgia v. Randolph applies for two reasons.

First, the defendant claimed that he would have been present to continue his objection to a search if he were not removed from the scene and thus his absence should not matter. Second, he maintained that it was enough that he objected to the search while he was present. According to the defendant, such an objection should remain in effect until the objecting party “no longer wishes to keep police out of his home.”Criminal%20Defense.jpg

The Supreme Court rejected both arguments.

The justices held that, although a warrant is generally required for a search of a home, the foundation of the Fourth Amendment is whether the search was reasonable. Although warrantless searches are unreasonable when two co-tenants are present and one objects to the search, the court has held that the same search is reasonable when the objecting tenant leaves.

In this case, because the objecting tenant was arrested and no longer present, the court held that because the consenting tenant had the authority to allow the police into her home, the search was reasonable. In effect, the objector gave up his right to refuse when he was arrested.

“We therefore hold that 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.”

The majority affirmed the judgment in Fernandez’s case and upheld his conviction.

Was This A Fair Decision?

Oddly enough, the court decided along gender lines more so than ideology, voting 6-3 in favor of affirming the defendant’s conviction. The dissenters were the three women on the High Court: Justice Sonia Sotomayor, Justice Elena Kagan, and Justice Ruth Bader Ginsberg, who authored the dissenting opinion.

The vote is peculiar in that a woman was bloodied and beaten during a domestic dispute, yet the three female justices sided with her boyfriend, holding that the search of the home they shared was unreasonable and therefore violated his constitutional rights under the Fourth Amendment.

In her dissent, Justice Ruth Bader Ginsberg argued that once the police were aware of the defendant’s objection, they should have gotten a warrant prior to searching the premises. “Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it,” wrote Justice Ginsberg.

The dissenters were troubled by the fact that the majority ignored the fact that the defendant had been present and did indeed object.

The female justices reminded the men of the majority that the Fourth Amendment’s requirement that police obtain a warrant from a judge prior to conducting a search exists “[b]ecause the Framers saw the neutral magistrate as an essential part of the criminal process shielding all of us, good or bad, saint or sinner, from unchecked police activity.”

Defendant in this case had a right to refuse consent to a search of the home he shared with another tenant. That right should have been respected regardless of whether he was arrested. It would not have been difficult for the police to obtain a warrant, given their probable cause that the defendant committed a robbery. The girlfriend was no longer in any danger, so a minor delay while the warrant was approved would not have infringed on her rights in any way.

All told, the Supreme Court got this one wrong.

What Does This Decision Mean?

The justices of the Supreme Court continue to erode away at our individual right to privacy by carving out additional exceptions to the Fourth Amendment’s protection against unreasonable searches and seizures in favor of the state’s interests in investigating crime. This is not only unfortunate, but it is dangerous.

This case gives a green light to authorities to circumvent an objection to a search simply by “removing” an objector from the scene. Simply place a person under arrest and the objection disappears.

Contact Wallin & Klarich if You’ve Been the Victim of an Unlawful Search and Seizure If you or someone you care about is facing criminal charges that you believe is the result of an unlawful search and seizure, you should contact one of attorneys at Wallin & Klarich today. Our attorneys at Wallin & Klarich have over 30 years of experience protecting the constitutional rights of our clients.

We may be able to file a motion to suppress the evidence, arguing that your Fourth Amendment rights were violated. If we are successful, evidence discovered as a result of an unlawful search and seizure will be ruled inadmissible. This often leads the prosecutor to reduce or dismiss the charges against you.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, our attorneys at Wallin & Klarich are here to make certain you are treated fairly throughout a criminal case. We will evaluate and employ every available strategy that gets you the best result possible in your case.

Call us today at (888) 280-6839 for a free telephone consultation. We will get through this together.

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Wallin & Klarich was established in 1981. Over the past 32 years, our law firm has helped tens of thousands of families in their time of legal need. Regardless of whether our clients faced criminal or DUI charges, the loss of their driving privilege, or wanted to clean up their criminal record, we have been there to help them.