“Yes” and “No” Mean “Yes” for Warrantless Home Searches

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The United States Supreme Court has limited the ability of individuals to prevent law enforcement officers from searching their homes without a search warrant. In the new decision, Fernandez v. California, Justice Samuel Alito writing for a 6-3 majority said that police may search a residence with the consent of one tenant even over the objection of another tenant, under certain circumstances.

In this case, police arrived at Fernandez’s home during the investigation of a gang-related robbery, and heard “screaming and fighting” coming from inside the home. Police knocked on the door and asked for permission to enter. Fernandez said no, saying “I know my rights.”

(As Roy Little of SCOTUSBlog brilliantly observed, not well enough, as we will soon see.)

Police saw bruises on his girlfriend and the infant being held by Fernandez’s girlfriend, and arrested Fernandez for suspicion of domestic violence. The police returned an hour later, and were granted permission from the girlfriend to search the residence. Fernandez sought to prevent the State from using the evidence found in that search, claiming it violated his Fourth Amendment right to be free from unreasonable searches and seizures.

Writing the majority opinion, Alito had to address a previous ruling of the Supreme Court in Georgia v. Randolph which held that when more than one property occupant is present, the objection of an occupant that is physically present to a search prohibits police from making the search without a warrant, even if the other occupant consents to the search.

In finding that Randolph did not apply, Alito first made the obvious observation that Fernandez was no longer present, and the fact that the party objecting to the search was physically present was the critical element in Randolph. Alito went on to address language in Randolph which would suggest police could not remove an individual that objected to a search and then proceed with the search.

Alito said that language in Randolph meant that police removal of an objecting occupant would prevent a warrantless search only if the police removal was not “objectively reasonable.” In this case, police had probable cause to arrest Fernandez for domestic violence as well as for the original robbery. Because police had that probable cause to arrest Fernandez, his absence from the residence was “objectively reasonable” and therefore the Randolph exception should not apply.

Alito also said that the objections of an individual to the search of a residence do not last past that individual’s presence. It does not matter that the officers in question knew that Fernandez did not want the residence searched. As long as Fernandez wasn’t present, and his removal by the police was “objectively reasonable,” police could search the residence with the permission of another occupant.

Alito’s opinion was joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Steven Breyer, and Anthony Kennedy. Scalia filed a concurring opinion reiterating his disagreement with the decision in Randolph and pointing out that he believes it might have been relevant if Fernandez had a property right in the residence, but that the issue was not raised. Thomas filed a concurring opinion reiterating his disagreement with the decision in Randolph.

Justice Ruth Bader Ginsberg wrote the dissenting opinion, which was joined by Justices Elena Kagan and Sonya Sotomayor. Ginsberg argued that permitting police to remove an objecting occupant and then search a residence was an impermissible end run around the Fourth Amendment’s requirement of a search warrant, and needlessly weakens that protection of individual liberties.

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