CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, February 27, 2014

"Five thoughts on Fernandez v. California"

Orin Kerr has this post at ScotusBlog on the yesterday's opinion on consent searches. Among the interesting observations:

Fernandez says that “presence” is the key to triggering Randolph, but I wonder what that means.  Does the requirement of presence mean present at the door, or does it mean presenton or near the premises? . . .

Which is it, presence at the door or presence on the premises?  It’s at least possible that it’s a bit of both.  Specifically, perhaps the initial objection has to be at the door, and then the objection lasts as long as the defendant is on the premises.  Reading over the opinion, I’m not sure.  Either way, it would seem to make a difference at least in some cases.  Imagine the objector tells the police to buzz off, and the police then wait five minutes and ring the doorbell again. The consenting occupant answers the door, and the officers ask again while the objector is elsewhere in the house (perhaps in the bathroom or taking a nap).  Can the police search the house then?  And if so, what happens if the objecting occupant realizes what is happening and objects again — is he “present” again for purposes of the Randolph rule if he is present where the search is occurring?

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