The Supreme Court rules on a home search dilemma

Among three Supreme Court rulings handed down on Tuesday was a decision about what happens when two people can’t agree on allowing police to search a home, and one of them later consents without the other present.

The case of Fernandez v. California asked the Court to further define a ruling from 2006 in Georgia v. Randolph dealing with a Fourth Amendment issue. In the Randolph case, a husband was arrested for drug possession after police found cocaine inside his home. The police didn’t have a warrant to search the home, but the man’s wife consented to the search. The husband was also present during the search, however, and objected to the police request.

In a 5-3 decision, Justice David Souter said in Randolph that that when two co-occupants are present in a home and one person consents to a search while the other refuses, the search isn’t constitutional under the Fourth Amendment’s reasonableness requirement, and such a search would require a warrant.

“It is fair to say that a caller standing at the door of shared premises would have no confidence that one occupant’s invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, ‘stay out.’ Without some very good reason, no sensible person would go inside under those conditions,” Souter said.

In 2006, Chief Justice John Roberts wrote the dissent, joined by Justice Antonin Scalia.

“A warrantless search is reasonable if police obtain the voluntary consent of a person authorized to give it. Co-occupants have ‘assumed the risk that one of their number might permit [a] common area to be searched,’ ” Roberts argued.

The Fernandez case was about a different situation, where one of two co-habitants objected to a home search without a warrant, but was then arrested, and he was not present when police returned for a second time to seek permission for a search.

In October 2009, police in Los Angeles received a tip that a robbery suspect was in an apartment building. As they pursued the case, police heard yelling and screaming coming from an apartment. Police knocked on the door and were greeted by woman who had cuts and bruises on her face who was also holding a child.

The woman denied anyone else was in the apartment, but when police prepared to do a protective sweep of the apartment, a man appeared and said he knew his constitutional rights, and he wouldn’t allow a search of the home. The police had reasonable suspicion that the man might have assaulted the woman, so he was arrested and taken into custody.

One hour later, police returned to the apartment and they received written and oral consent from the woman to search the premises. During the search, they found evidence linking him to the robbery.

The question is the Fernandez case was if the man’s prior refusal to allow a search without a warrant was still valid when he wasn’t physically in the apartment when police made a second search request, and his girlfriend agreed.

Justice Samuel Alito wrote the court’s 6-3 decision, which found that an occupant can’t object to a search when he or she is not at home when the request is made.

“We therefore hold that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason,” Alito said.

Alito also said that “a warrantless consent search is reasonable and thus consistent with the Fourth Amendment irrespective of the availability of a warrant,” especially in cases where the need for a warrant, when it is not required, could impeded an investigation.

The dissent was led by Justices Ruth Bader Ginsburg, and joined by Justices Sonia Sotomayor and Elena Kagan.

“Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it, never mind ample time to secure the approval of a neutral magistrate,” said Ginsburg. “For the reasons stated, I would honor the Fourth Amendment’s warrant requirement and hold that Fernandez’ objection to the search did not become null upon his arrest and removal from the scene. There is every reason to conclude that securing a warrant was entirely feasible in this case, and no reason to contract the Fourth Amendment’s dominion.”

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