Higher Courtroom Struggles Over Consent To Search Issue

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Higher Courtroom Struggles Over Consent To Search Issue
WASHINGTON — During a lively Wednesday oral argument, the justices of the U.S. Supreme Courtroom seemed torn over whether police can carry out 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 crushed, 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 previously robbery identified Fernandez as the perpetrator.

About an hour later on, 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 improved 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 courtroom denied the motion, ruling that Rojas, as a cotenant, had consented to the search.

The California Courtroom of Appeal affirmed. The courtroom 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 current and objecting. Here, the courtroom reasoned, the objecting tenant was no longer current when the search took place.

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

вЂ˜It’s her house, too’

Jeffrey L. Fisher, a professor at Stanford Legislation 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 permitted 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? … That 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 that is very different than what’s heading on here.”

Fisher stressed that Fernandez was current 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 slim ground,” he said. “It’s enough to decide this case, and indeed, the vast majority of lower courtroom 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 discussion with the cotenant, try to work out the solution to the problem.”

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

“What’s the discussion between the spouse and the battered wife, bleeding and holding the four-year-old baby, heading to look like?” he requested.

вЂ˜Get a warrant’

California Deputy Lawyer 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 aspect to counter the force of an objecting individual’s declare 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 confess visitors into her own home may not be prospectively negated by the previously objection of an absent tenant.”

“Did they have probable cause to get a warrant?” requested 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 later on this term.