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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.
If you need to talk with a criminal defense lawyer, contact Runge Law Office at firstname.lastname@example.org or at (402) 390-9577 to schedule a free initial consultation. Visit us at www.patrickrunge.com for more information
On June 17, 2013, the Supreme Court decided that merely remaining silent is not enough to exercise his or her Fifth Amendment right to remain silent when being questioned by the police. Unless that person says something to invoke that right, according to the controlling opinion from the Court, then the right is not invoked and prosecutors can use that silence to infer the person’s guilt.
The case, entitled Salinas v. Texas (No. 12-246), involved Genevivo Salinas, who had gone voluntarily to the police to discuss a murder of two men. During the course of those discussions, the officers asked Salinas if the shell casings found at the scene would match his gun. Salinas became nervous, but did not answer the question.
Salinas was later charged with the murders. At his trial, the prosecution used Salinas’ silence when asked about the shell casings to infer his guilt to the jury. Salinas was convicted of the murders, and his appeal ultimately went to the United States Supreme Court.
The Controlling Opinion
Joined by Justices Roberts and Kennedy, Justice Alito wrote the plurality opinion that is the law of the case. Alito wrote that previous law had laid out two areas where silence on its own can invoke a person’s Fifth Amendment right to remain silent. The first is an absolute right for a person not to testify in his or her own case. The second is if the government is somehow forcing the person (outside of the courtroom) to give information against himself or herself, such as if the person is in police custody, is threatened with the loss of governmental benefits, or some other form of leverage to force the person to give information against his or her interests.
“[P]opular misconceptions notwithstanding, the Fifth Amendment guarantees that no one may be ‘compelled in any criminal case to be a witness against himself’; it does not establish an unqualified ‘right to remain silent.’ A witness’ constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim,” Alito wrote in the controlling opinion.
The Concurring Opinion
Justice Scalia concurred with Justice Thomas’ opinion that the Alito plurality opinion did not go far enough. Even if Salinas would have invoked his Fifth Amendment rights, Thomas wrote, it wouldn’t matter because “the prosecutor’s comments regarding his precustodial silence did not compel him to give self-incriminating testimony.”
Thomas believes that a prosecutor’s commenting on a defendant’s lack of testimony does not force that defendant to testify, and therefore should be allowed any time a defendant does not take the stand at his or her trial. According to Thomas, preventing a prosecutor from commenting on (and inferring guilt from) a defendant’s choice to remain silent does not have a historical basis, and the Fifth Amendment should not prevent prosecutors from doing so in any case.
The Dissenting Opinion
Justices Ginsberg, Sotomayor, and Kagan joined with Justice Breyer in the dissenting opinion. Breyer wrote that the purpose of the Fifth Amendment was to prevent the government from forcing an individual to be a witness against himself or herself. Permitting prosecutor to comment on an individual’s silence as an inference of guilt, Breyer wrote, presents an impossible choice to an individual and will invariably lead to that individual being compelled to provide an answer—or have the individual’s silence used as an inference of guilt, as with Salinas.
Breyer suggested that the Court, rather than just allow a blanket use of silence as an inference of guilt as Alito wrote, should look at the circumstances of each case to determine if an individual invoked his or her Fifth Amendment right. Breyer is also concerned that Alito’s language requiring an individual to “expressly invoke the privilege against self-incrimination” will become difficult to administer. How much is needed to “expressly invoke” the right? How will that square with the Court’s previous rulings that “no ritualistic formula is necessary in order to invoke the privilege”?
You can see the SCOTUSBlog page on Salinas v. Texas and get more information here.