Fourth Amendment: Warrantless Searches Based on Consent

Although police generally need a warrant to search a person’s home, homeowners and tenants may consent to a police search. In 2006, the Court held in Georgia v. Randolph that where one cotenant objects to a search, that objection overrides the consent of any other cotenants. This term, the Court limited that holding to cases where the objecting cotenant is present on the scene, even when the objecting cotenant is not present because he was arrested.

In Fernandez v. California, police officers observed a suspect in a violent robbery run into an apartment building and heard screams coming from one of the apartments. They knocked on the apartment door, which was answered by Roxanne Rojas, who appeared to be battered and bleeding. When the officers asked her to step out of the apartment so that they could conduct a protective sweep, petitioner Fernandez came to the door and objected to the search. Suspecting that he had assaulted Rojas, the officers removed Fernandez from the apartment and placed him under arrest. He was then identified as the perpetrator in the earlier robbery and taken to the police station. An hour later, an officer later returned to the apartment and, after obtaining Rojas’s oral and written consent, searched the premises, where he found several items linking Fernandez to the robbery. Fernandez was subsequently convicted for robbery, and his conviction was affirmed by the California Supreme Court.

In affirming the California Supreme Court, Justice Alito writing for the majority declined to extend Randolph to circumstances where the objecting cotenant is not on the premises to object. Because the police had reasonable grounds to arrest him, the majority was not persuaded by the fact that the only reason Fernandez was not present to object was that he was under arrest. The majority also rejected Fernandez’s contention that his objection made at the door remained effective even after he had been removed from the property. Because the rule in Randolph was based on customary social expectations, the court analogized to a situation in which one cotenant objects to a visitor and later, once the objecting cotenant has left, another cotenant invites the visitor in.

Justice Ginsburg dissented, joined by Justices Sotomayor and Kagan, arguing that this case calls for a simple application of Randolph and attacking the majority’s understanding of customary social expectations. Because Fernandez was present on the scene when he objected, Justice Ginsburg contended that Randolph was satisfied. Even though he was arrested and thus no longer present to express his continuing objection, Justice Ginsburg argued that customary social usage would dictate that his object persists even in his absence.