Generally, officers may obtain a valid consent to search only from a person whose reasonable expectation of privacy may be invaded by the proposed search. Sometimes two or more people—for example, spouses or roommates—share a reasonable expectation of privacy in the same place. Generally, either person may give valid consent to an officer. United States v. Matlock, 415 U.S. 164 (1974) (common authority over premises found). However, as discussed below, an exception to this general rule may exist when a physically-present occupant objects. Continue reading
Tag Archives: fernandez
United States Supreme Court Clarifies When Consent to Search by One Residential Occupant Is Valid When a Co-Occupant Has Previously Objected
Last week the United States Supreme Court in Fernandez v. California (February 25, 2014) clarified an issue left open in its ruling in Georgia v. Randolph, 547 U.S. 103 (2006): the validity of a consent search by a residential occupant after a co-occupant has previously objected to a search but is no longer physically present when the occupant consents.
Facts. Defendant Fernandez was involved in an armed robbery. Responding officers saw a man apparently involved in the robbery run into a building. A few minutes later, the officers heard sounds of screaming and fighting coming from an apartment in that building. Roxanne Rojas responded to the officers’ knock on the door. She had fresh injuries and admitted she had been in a fight. After an officer asked her to step out of the apartment so he could conduct a protective sweep, Fernandez appeared at the door and told the officers that they didn’t have any right to enter. (Both Fernandez and Rojas were lawful occupants of the apartment.) Believing that Fernandez had assaulted Rojas, the officers arrested him and took him to the police station. An hour later an officer returned to the apartment and obtained consent from Rojas to search the apartment. The defendant’s motion to suppress evidence discovered in the apartment was denied, and he was convicted of robbery and assault.
Legal background. The United States Supreme Court has long recognized valid consent as a lawful way that officers may enter premises without a search warrant or another recognized justification under the Fourth Amendment. In United States v. Matlock, 415 U.S. 164 (1974), the defendant, a co-occupant, had been arrested in the front yard and placed in an officer’s vehicle. Officers then went to the front door and obtained the consent of a co-occupant (the defendant never had objected to the search). The Court ruled that a search of jointly-occupied premises when one of the occupants consents does not violate the Fourth Amendment. The Court in Georgia v. Randolph, however, recognized an exception to Matlock when it ruled that consent to search by one of the occupants is insufficient when a co-occupant is present and objecting to the search.
The Court’s ruling. The Fernandez case involved a variation of Randolph because Rojas’s consent to search occurred well after officers had removed Fernandez. Thus, unlike Randolph, Fernandez was not physically present and objecting when Rojas consented. The Court distinguished Randolph and ruled that Rojas’s consent to search was valid under the Fourth Amendment. The Court noted that Randolph had stressed that its ruling was limited to situations when an objecting occupant was physically present when the co-occupant consented to the search. The Court rejected Fernandez’s argument that the objecting occupant’s continued physical presence is not required to bar a co-occupant’s later consent. The Court ruled that as long as officers have an objectively reasonable basis to remove the defendant (that is, the officers’ subjective motive for removal is irrelevant), the co-occupant’s later consent is sufficient. In this case, the officers properly removed Fernandez so they could speak with Rojas outside Fernandez’s intimidating presence. Also, there was probable cause to arrest Fernandez for an assault on Rojas. The Court rejected another of Fernandez’s arguments that his objection to a search should remain effective until he changed his mind and withdrew his objection, despite Rojas’s later consent.
Post-Fernandez issue. With an objecting occupant’s physical presence given prominence in Fernandez, there remains how physical presence will be defined in future cases. Does the objecting occupant need to be present exactly where the co-occupant is consenting or is it sufficient if he or she is somewhere on or near the premises? The Court appeared to indicate that on or near the premises may be sufficient because it cited Bailey v. United States, 133 S. Ct. 1031 (2013) (detaining occupants of premises during search warrant execution is limited to immediate vicinity of premises to be searched). But the Court did not decide the issue, and a future Court may decide it differently.
Advice to officers. When officers are unsure of their authority to search pursuant to the consent of one occupant when another occupant is objecting, they may wish to consult with their agency’s legal advisor or obtain a search warrant if probable cause exists to search the premises. Or sometimes there will be other legal grounds to enter premises without consent or a search warrant, such as the immediate need to protect a victim from harm, seize weapons for self-protection, make a protective sweep, etc. See the Court’s discussion in Georgia v. Randolph, 547 U.S. at 118-19. See also Arrest, Search, and Investigation in North Carolina, 232-33 (4th ed. 2011), and its 2013 supplement at 28.
Each year on the first Monday in October, the Supreme Court begins a new term. Today’s the first Monday in October 2013, so in this post, I’ll summarize several of the criminal cases that the Court will hear during the term that has just begun. This will be a selective preview rather than a comprehensive one: I’m not going to list all the criminal cases in which certiorari has been granted, and the Court likely will add a few additional cases over the next several months in any event.
As an aside, those interested in the non-criminal cases on the Court’s docket might enjoy this preview by appellate lawyer Howard Bashman, or this one by the Los Angeles Times, which argues that the term “gives the court’s conservative bloc a clear opportunity to shift the law to the right on touchstone social issues such as abortion, contraception and religion, as well as the political controversy over campaign funding.” Also, New York Magazine has just published a long interview with Justice Scalia. It’s a great read for those interested in the Justices’ personalities. High points include how Justice Scalia gets his news, what he thinks of the devil, and which of his opinions he views as the most courageous.
Back to business. Upcoming criminal law cases include:
- Kansas v. Cheever, where the Question Presented is: “Whether, when a criminal defendant affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant’s methamphetamine use, the state violates the defendant’s Fifth Amendment privilege against self-incrimination by rebutting the defendant’s mental state defense with evidence from a court-ordered mental evaluation of the defendant.” In other words, the Court is going to get into the thicket of how and to what extent the Fifth Amendment applies to court-ordered mental health examinations against a defendant. The SCOTUSBlog case page is here.
- Fernandez v. California, where the Question Presented is: “Whether, under Georgia v. Randolph, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of Fourth Amendment rights which cannot be overridden by a co-tenant.” This is an issue that arises quite a bit in practice and it will be good to have a clear answer. The SCOTUSBlog case page is here.
- Paroline v. United States, where the Question Presented is: “What, if any, causal relationship or nexus between the defendant’s conduct and the victim’s harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. Sec. 2259?” That’s pretty opaque, but the case concerns the long-standing dispute over restitution in child pornography cases. The issue is whether, when a defendant is convicted of possessing images of a particular victim, that defendant may be ordered to pay restitution for all the harm done to that victim as a result of the victim’s portrayal in child pornography, or whether the defendant’s restitution liability is limited to the harm done to the victim as a result of the defendant’s personal possession of the image. The SCOTUSBlog case page is here.
- Navarette v. California, where the Question Presented is: “Whether the Fourth Amendment requires an officer who receives an anonymous tip regarding a drunken or reckless driver to corroborate dangerous driving before stopping the vehicle.” The answer has the potential to be significant outside the limited context of traffic stops, but even if it is “just” a traffic stop case, it may have a major practical impact. (And it will definitely make it into the next version of my traffic stops paper.) The SCOTUSblog case page is here.
SCOTUSBlog has a complete list of merits cases for the term, together with the Question(s) Presented for each case, here. On the list but not summarized above are an interesting case or two involving substantive federal criminal law, and a follow-up to the Lafler and Frye cases about the effective assistance of counsel in plea bargaining. As always, it should be an interesting term. Stay tuned.