Tuesday, February 25, 2014

Cohabitant Can Consent to Search Over Objection of Absent Occupant

The Supreme Court ruled today that a cohabitant of an apartment can validly consent to a search of the apartment, even over the objections of an absent co-occupant.  The ruling in Fernandez v. California means that police can search an apartment (or home), without a warrant, based on the permission of one occupant, even when another occupant objects, so long as the other occupant isn't around.

The case arose when police knocked on an apartment door after hearing screams come from the apartment.  Roxanne Rojas answered; she appeared to be battered and bleeding.  Police asked Rojas to step out of the apartment so that they could conduct a protective sweep.  Fernandez came to the door and objected.

Police suspected that Fernandez assaulted Rojas and arrested him.  They then identified him as the perpetrator in an earlier robbery and took him to the station.

An officer later returned to the apartment, obtained oral permission from Rojas to search it, searched it, and found items linking Fernandez to the robbery. 

Fernandez moved to suppress the items, arguing that he did not give consent to search.  He relied on Georgia v. Randolph (2006), which held that the consent of one occupant is insufficient to allow a warrantless search if another occupant is present and objects to the search.

The Court declined to extend Randolph to this case, where Fernandez was absent.  Justice Alito wrote for the majority:

Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present.  We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared.

Justices Scalia and Thomas concurred, both taking issue with the Randolph rule itself, and Justice Scalia trying to shoehorn in a property law analysis.

Justice Ginsburg, writing for herself and Justices Sotomayor and Kagan, dissented:

Instead of adhering to the warrant requirement, today's decision tells the police that they may dodge it, nevermind ample time to secure the approval of a neutral magistrate.  Suppressing the warrant requirement, the Court shrinks to petite size our holding in [Randolph] that "a physically present inhabitant's express refusal of consent to a police search [of his home] is dispositive as to him, regardless of the consent of a fellow occupant."

http://lawprofessors.typepad.com/conlaw/2014/02/cohabitant-can-consent-to-search-over-objection-of-absent-occupant.html

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