High Court docket Struggles Over Consent To Search Issue

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High Court docket Struggles Over Consent To Search Issue
WASHINGTON — During a lively Wednesday oral argument, the justices of the U.S. Supreme Court docket seemed torn over whether police can perform 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 overwhelmed, 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 before robbery identified Fernandez as the perpetrator.

About an hour afterwards, 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 increased 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 docket denied the motion, ruling that Rojas, as a cotenant, had consented to the search.

The California Court docket of Appeal affirmed. The court docket 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 existing and objecting. Here, the court docket reasoned, the objecting tenant was no longer existing when the search took place.

After the California Supreme Court docket denied the defendant’s petition for review, the Supreme Court docket granted his petition for certiorari.

вЂ˜It’s her house, too’

Jeffrey L. Fisher, a professor at Stanford Regulation 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 authorized 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? … Which is 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 which is very different than what’s likely on here.”

Fisher stressed that Fernandez was existing 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 slender ground,” he said. “It’s enough to decide this case, and indeed, the vast majority of lower court docket 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 dialogue with the cotenant, try to work out the solution to the problem.”

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

“What’s the dialogue between the partner and the battered wife, bleeding and holding the four-year-old baby, likely to look like?” he questioned.

вЂ˜Get a warrant’

California Deputy Legal professional 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 facet to counter the force of an objecting individual’s assert 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 acknowledge visitors into her own home may not be prospectively negated by the before objection of an absent tenant.”

“Did they have probable cause to get a warrant?” questioned 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 afterwards this term.