Can police obtain consent from a cotenant to search a dwelling after another cotenant who objected to the search is lawfully removed?
Court below: California 2nd District Court of Appeal
Walter Fernandez was a suspect in a robbery and police came to his apartment and asked for permission to search it. He refused to let them in and the police arrested him for the robbery and removed him from the apartment. A short time later, the police returned and got permission from Fernandez’s girlfriend to search the apartment. At trial, Fernandez moved to suppress the evidence found in his apartment because he claimed it was obtained as a result of an unreasonable warrantless search and seizure. The Supreme Court, in Georgia v. Randolph,has previously held that when one cotenant refused to consent to a search of the dwelling, the police could not immediately obtain consent from another cotenant. A key reason for that holding was that it provides a clear rule for law enforcement to follow in the field. Fernandez argues this his refusal to let police search his apartment remained in effect after his lawful arrest. California argues that the defendant needed to be present in order to override his girlfriend’s consent to the search. The outcome of this case will clarify both Georgia v. Randolph andlaw enforcement procedures when obtaining consent to search.
Under Georgia v. Randolph, must a defendant be personally present and objecting when police officers ask a cotenant for consent to conduct a warrantless search or is a defendant's previously-stated objection, while physically present, to a warrantless search a continuing assertion of Fourth Amendment rights which cannot be overridden by a cotenant?
On October 12, 2009, Detective Kelly Clark and Officer Joseph Cirrito responded to a radio dispatch about a robbery involving the Drifters gang. See People v. Fernandez, 208 Cal. App. 4th 100, 105 (2012). Clark and Cirrito went to Magnolia and 14th Street, a place where they knew Drifters gathered. Id.at 106. Upon arrival, Clark and Cirrito saw a man, matching the description of the man who committed the robbery, run into a nearby apartment building. See id. Shortly after, the officers heard screaming and fighting coming from the apartment. Id. After calling for back up and waiting for additional officers to arrive, Clark and Cirrito knocked on the door of the apartment. Id.Roxanna Rojas, the girlfriend of Petitioner Walter Fernandez, opened the door. Id. She had a large bump on her nose and blood on her shirt and hands. Id.
Cirrito asked if anyone else was in the apartment, and Rojas said that her son was the only one. Id. Fernandez then appeared as Cirrito asked Rojas to step outside so that he could conduct a sweep of the whole apartment. Id. Fernandez said, “You don’t have any right to come in here. I know my rights.” Id. Cirrito took Fernandez into custody and removed him from the apartment.Id. After Fernandez was removed, Clark told Rojas that Fernandez was identified as a robbery suspect and asked for Rojas’s permission to search the residence. Id. Rojas gave written and oral consent to a search of the apartment. Id. The officers found a knife, a sawed-off shotgun, ammunition, and clothing, but they did not find any of the items stolen in the robbery. See id.
At trial, a jury found Fernandez guilty of domestic abuse charges as well as second-degree robbery. See id. at 104. Additionally, Fernandez received an enhanced sentence because of the jury’s finding that Fernandez used a knife to commit the robbery and committed the robbery to benefit a criminal gang. See id. The trial court denied Fernandez’s motion to suppress the evidence seized during the warrantless search of his apartment. Id. The trial court imposed a sentence of 14 years. Id.
Fernandez appealed to the California Court of Appeal arguing that the trial court erred in denying his motion to suppress evidence that violated his Fourth Amendment rights. Id. The court found the warrantless search justified by Rojas’s consent to the search as cotenant of the apartment. Id. at 122. Fernandez sought review in the California Supreme Court, but was denied. See Brief for Petitioner, Walter Fernandez, at 8. The United States Supreme Court granted certiorari to determine whether a defendant must be present to object when officers ask a cotenant to consent to a warrantless search or whether the defendant’s previous objections to the search while present overrides the consent of the cotenant as an assertion of the defendant’s Fourth Amendment rights. See Petition for Writ of Certiorari, Fernandez v. California, (2012).
In this case the Supreme Court will consider the scope of Fourth Amendment protection for an absent cotenant that objects to police entry into his home. See Petition for Writ of Certiorari, Fernandez v. California, (2012). The case centers on an interpretation of the Supreme Court’s holding in Georgia v. Randolph. In Randolph, the Court held that a cotenant’s express refusal of consent to a police search of the cotenant’s home will be dispositive even if consent is obtained from a fellow cotenant. See Georgia v. Randolph, 547 U.S. 103 (2006). Fernandez argues that if a cotenant invokes their Fourth Amendment right to deny entry and is then removed from his home, the removal does not grant police license to ignore the objections of the cotenant and obtain consent from another cotenant. See Brief for Petitioner at 11–15. California argues that when an objecting cotenant is absent, particularly when the absence of the cotenant is due to his lawful arrest, the state may obtain valid consent from another cotenant. See Brief for Respondent, California, at 13–14.The Court’s decision will clarify the scope of Fourth Amendment protection and guide law enforcement in conducting warrantless searches.
LAW ENFORCEMENT AND COTENANT CONSENT
Fernandez asserts that allowing his objection to entry to remain in force would not prevent the police from obtaining valid consent from another cotenant in every situation and would comport with social and constitutional norms.See Brief for Petitioner at 27, 30. Fernandez argues that once a cotenant is removed or arrested, the police can talk with the cotenant to obtain consent. Id.Furthermore, Fernandez asserts that the police could attempt to enlist the aid of the cooperative cotenant by encouraging the consenting cotenant to speak with the objecting cotenant to come to an agreement that allows the police to conduct the search. Id.Fernandez argues that requiring police officers to ask suspects to reconsider their decision to deny consent to a search of their homes would not create administrative difficulties. Id.at 27.
California argues that restricting one cotenant’s right to consent to police entry in the absence of another cotenant would impose unnecessary restrictions on law enforcement. See Brief for Respondent at 38. Thus, California contends that in situations where consent is the only means of obtaining authorization to search, the requirement of consent from an absent cotenant would limit the police’s ability to respond to “legitimate opportunities in the field.” See id. at 38–39. California contends that a rule giving lasting effect to a previous objection to entry by an absent cotenant would create many questions with no basis for a reasonable resolution.See id. at 43. California argues that questions such as how long the objection will last or whether the objection will apply to officers who are not aware of a prior objection will create great confusion for law enforcement. See id.
PROPERTY RIGHTS IMPLICATIONS
In support of Fernandez, the National Association of Criminal Defense Lawyers (“NACDL”) argues that respect for the sanctity of the home and self-determination prohibit warrantless entry upon the removal of an objecting cotenant. See Brief for NACDL at 10. The NACDL argues that the core of the Fourth Amendment is the “right of a man to retreat into his own home and there be free from unreasonable government intrusion.” Id.(quoting Kyllo v. United States, 533 U.S. 27, 31 (2001)). Furthermore, the NACDL asserts that general property law exhibits the widely-held and longstanding social expectation that a person cannot enter the home of another over a resident’s objection to entry by obtaining another resident’s consent. Id. at 17. The NACDL asserts that the right to exclude is one of the most fundamental facets of an individual’s property rights. Id. Based on the right to exclude, the NACDL argues that cotenants share the right to exclude, and therefore one cotenant cannot lose the right to exclude simply because of his absence. Id. at 19.
In support of California, the United States argues that the Fourth Amendment does not prohibit entry when law enforcement has obtained voluntary consent from a cotenant. See Brief for Amicus Curiae United States in Support of Respondents at 10. The United States argues that the community has a substantial interest in encouraging consent-based searches that aid the prosecution of crime. Id. at 9. The United States asserts that property law is not the basis for law enforcement’s authority to search when it obtains from a cotenant. Id.at 11. Rather, the authority comes from the cotenants’ mutual use of the property, where each cotenant has assumed the right that another cotenant may permit the home to be searched. Id.
In this case, the Supreme Court will clarify its holding in Georgia v. Randolph, which held that under the Fourth Amendment, police cannot perform a warrantless search of a dwelling on the basis of consent from one cotenant after being refused entry by another cotenant.Georgia v. Randolph, 547 U.S. 103, 122–23 (2006).Specifically, the Court will decide whether a cotenant’s express refusal of consent continues to deny the police entry after the objecting tenant is lawfully removed from the premises. Petition for Certiorari at 3–4. California argues that the holding in Randolph was based on the objecting tenant’s physical presence, and, therefore, the prohibition against turning to the other tenant to obtain consent does not apply here where Fernandez was lawfully removed. See Brief for Respondent at 10. Fernandez counters that a person’s privacy interest in the home does not diminish when he leaves the premises, and, therefore, Randolph requires that police continue to heed the wishes of an objecting tenant who has made his specific objection to the search known. See Brief for Petitioner at 8–9.
GEORGIA V. RANDOLPH AND UNITED STATES V. MATLOCK
The Fourth Amendment protects against unreasonable searches and seizures of persons and their dwellings. However, under the Fourth Amendment police may validly search an apartment without a warrant if they obtain voluntary consent from an occupant who shares common authority of the dwelling. Randolph, 547 U.S. at 106.
The parties differ on the correct interpretation of the 2006 Supreme Court decision in Georgia v. Randolph. 547 U.S. 103 (2006). In Randolph, the Supreme Court stated that when one present cotenant objected to the police’s request to search the apartment, the police could not simply turn to the other cotenant to obtain consent. See id.at 122–23. The Randolph holding distinguished itself from the prior Supreme Court precedent of United States v. Matlock. See id.at 120–22.In Matlock, the Supreme Court held that becausethe defendant had not been present and did not have the opportunity to object to consent given by cotenants, the search was permissible. United States v. Matlock, 415 U.S. 164, 171 (1974). In Randolph, the Court admitted that it was drawing a formalistic line between the actively objecting cotenant in the door and the potentially objecting cotenant who may be nearby but not taking part in the discussion. Randolph,547 U.S. at 121. Giving a caveat to this formalistic line, the Randolph Court stated that the rule would not necessarily apply to a situation where the police have removed the potentially objecting tenant for the sake of avoiding an objection. Id. at 121. At the most basic level, the parties differ over whether the principal rationale behind the Randolph ruling is based on physical proximity or on the fact that the cotenant has invoked his right to privacy by refusing consent.
California argues that Randolph is limited to situations where the cotenant is physically presentat the dwelling and actively objecting at the moment of his presence. Brief for Respondent at 21. California contends that the existence of a contemporaneous dispute and the objector’s physical presence were essential to the Supreme Court’s holding that the refusal of consent by the cotenant in Randolph was dispositive regardless of the consent of the other tenant. Id. at 22.California emphasizes that physical presence is the critical difference between Matlock and Randolph. Id.at 23. California argues that physical presence is the formalistic line the Supreme Court references in the Randolph opinion. See id.at 23–24 (citing Randolph, 547 U.S. at 121). Moreover, California maintains that failure to find physical presence to be the defining factor would allow the objecting tenant to have an absolute and continuing veto over the consent of other occupants. Id. at 24.
Fernandez argues that once the police know of a cotenant’s objection to a search, the holding in Randolph dictates that law enforcement does not have valid consent to enter until the objector no longer wishes to keep the police out. Brief for Petitioner at 8. Fernandez asserts that a person’s interest in the privacy of his home and the belongings therein does not diminish when he leaves, and Fourth Amendment law is clear that a tenant’s right to be free from government intrusion is not diminished simply because he is not physically present at his home. Id. at 16. Therefore, Fernandez argues, his refusal of consent to search the premises should remain in effect even though he was lawfully removed from the premises. Id. at 8. Additionally, Fernandez contends that the relevant distinction between Randolph and Matlock is not physical presence but rather that in Matlock, the defendant never communicated to the police his objection to a search. Id. at 18. However, Fernandez believes that the situation is different when a person clearly and directly invokes his right to privacy in his home. Id. at 19. Fernandez maintains that at the very least, this denial of consent must continue if it is the police themselves who remove the objecting tenant from the premises. Id. at 8–9.
THE SCOPE OF CONSENT AS DEFINED BY SOCIAL EXPECTATIONS
Because the constitutional protections against unreasonable searches and seizures are based in notions of fundamental privacy rights, widely-held social expectations are central but not exclusive considerations for assessing consent in cases under the Fourth Amendment. Randolph, 547 U.S. at 111. The relevant social assumption is that there is an implicit understanding among cotenants that one of them may admit visitors, and, consequently, a visitor obnoxious to one cotenant may nevertheless be admitted in the cotenant’s absence. Id.However, the Court in Randolph explicitly stated that social customs would dictate that a visitor would have no confidence that he could enter if a present cotenant objected to entry, even if the other cotenant had given him consent. Id. at 113. This hypothetical visitor’s hesitance to enter illustrates that when cotenants disagree over the use of common space, a resolution must come through voluntary accommodation. Id.
California claims that neither social expectations nor property law enforce Fernandez’s reading that one cotenant may preclude effective consent from the other cotenant when the former is absent. Brief for Respondent at 11. California contends that although a guest would be apprehensive to enter a home if told by a present, objecting cotenant that he is not welcome, once the objecting cotenant departed, social etiquette would not deter the guest from accepting an invitation to enter by a third party with authority to extend an invitation. See id. at 27.
Fernandez counters that social custom does not support California’s contention. See Brief for Petitioner at 17. Fernandez maintains that once a cotenant objects to a visitor’s entry, customary social norms would cause that visitor to doubt whether he has permission to enter. Id. Also, the doubt would continue at least until the two cotenants have, as the Supreme Court in Randolph stated, reached some voluntary accommodation assuring the visitor that the objecting cotenant no longer insists on excluding the visitor. Id. at 17–18. Furthermore, Fernandez argues that when the police forcibly remove a cotenant from the premises, the police foreclose the possibility of the cotenants reaching a voluntary accommodation because the arrested cotenant is unable to communicate his change of mind or insistence that he does not consent to a search for a period of time. Id. at 19. Therefore, the argument continues, an arrested person cannot be said to have voluntarily assumed the risk that his cotenant will allow a visitor’s entry in spite of the person’s wishes because the arrested person did not leave the premises voluntarily. Id. at 20.
This case will have substantial effects on the development of Fourth Amendment law. Fernandez argues that following the Court's holding in Randolph, police do not have consent to enter a dwelling until an absent, objecting cotenant grants consent. To the contrary, California contends that the holding in Randolph is specifically limited to situations where the cotenant is physically present and objecting to entry. The outcome of this case will largely turn on the Court's interpretation of its previous holding in Randolph and will likely be influenced by the Court's consideration of the possible burdens placed on law enforcement as well as the Fourth Amendment rights of an objecting cotenant.
- Michael Doyale, McClatchyDC,California robbery case leads Supreme Court to reconsider police search laws (May 20, 2013).
- William Peacock, Esq., FindLaw, SCOTUS to Hear Fernandez, a California “Warrantless Search” Case (May 22, 2013).