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.

6 thoughts on “United States Supreme Court Clarifies When Consent to Search by One Residential Occupant Is Valid When a Co-Occupant Has Previously Objected”

  1. Great point. Although it seems a slippery slope to have police simply arrest the person who denies a request for search, it is understandable to have a safety factor in the case where someone is refusing or denying the search to maintain an assault.

    I need to research several issues and am wondering of you have any suggestions for cases to read or particular references to read. I am a non-attorney and not familiar with the resources. The issues are: 1) when police are asked to leave a premises after responding to a 911 call they refuse; 2) when police refuse the right or request of a building owner to remove a person accused of breaking and entering into the property; 3) neglect of police to investigate B and E or criminal trespass; 4) refusal of police to file charges after the reporting of a crime; 5) refuse of police to act when a crime is reported; and 6) how much and what kind of resistance is a land or property owner allowed to use when police give a building or residence to a potential intruder? Any suggestions on reading would be very much appreciated. Thank you, Jim Soder (jsoder@carolinia.rr.com; 704-806-5775;

    • #1-if there is a local policy the police might need to verify the person is ok before they leave. They are not doing their job diligently if they respond to 911, arrive, & a woman says there’s no problem when it was clearly a man on the phone.
      #2-you cannot arrest just based on a “he did it.” There needs to be proof enough for police to take away a person’s liberty – a Constitutional right. You can search powers of arrest or right to arrest and will come up with a lot of information. Whatever state you are concerned with, look up their general statutes and scroll to the bottom. There are oftem links to cases or cross references to other related laws.
      As for #s 3, 4, & 5, that sounds like you have a procedural issue and not law. You should speak with your local police station’s regulatory officer or complaint department.
      #6-I’m afraid I don’t understand your question. Police cannot “give” property that is not theirs. A property owner can say to the person in front of police “get off my property” and if they do not leave, then trespass laws take effect. If police are not there to see this, things progress differently. However, if the person is a tenant and had an agreement with you (even if only verbal) then you must follow the steps for eviction proceedings, and police are not allowed to interfere at that point. If a tenant broke into their own leased residence, they are not B and E, they are damaging property and again, you must seek damages through the courts – the police cannot interfere – because this is where civil law comes in.
      You can also go to your courthouse and ask to use the law library. There are computers and index books where you can search by keyword to find the correct volume & read the entire case. I find this the best, but maybe I’m just old fashioned. Good luck!

  2. Of course this means that cops will simply come up with some reason to remove the objecting resident so the remaiming one(s) can be induced to give consent. Domestic squabbles will now allow cops to detain or arrest one party and get the other to give consent out of spite so the warrant requirement will not be needed to enter and search. In the instant case I can see why the cops arrested the batterer of the woman, but in most cases where parties are in a domestic argument one party will want revenge and then later regret allowing cops in. If contraband is discovered after such an entry both parties should be charged..allowing consent searches is never a good idea.

  3. Rich, why so negative? I’ve had my disappointments with officers, but only because they didn’t do their job. (This includes being careful over Constitutional rights, weighing the danger a person is in compared to the law, to arrest or not to arrest, etc.) I always said that if you aren’t doing anything illegal, you have nothing to fear from police. I would not have an issue with this – just excuse the dust bunies! Things get more and more complicated with laws for law enforcement, as well as lawyers. It’s getting to the point of having to use a flow chart with little “action bubbles” to tell an officer what to do in each situation. Saving a life or protecting people & property isn’t so easy anymore. It seems like this will be both good and bad, even for officers doing their job.
    Domestic violence is such a sticky situation. As you say, contraband could be found, but that becomes a whole other investigation. I don’t thinks this will be an issue, though, since a DV search would be for guns & possibly evidence to the DV (if there’s blood from injuries, what weapon was used, etc), along with checking to see if anyone else is in the house. You can hide weed in a bookcase. You can’t hide a person in a bookcase. So where & how in-depth the search is governed by the type of investigation anyway and officers would search for people, children, and guns. If they search beyond this & start digging through – for example – your jewelry box and flipping through every book on your nightstand, then that could be contested in court anyway. Because of this, I see no problems with this being allowed.

    • “I always said that if you aren’t doing anything illegal, you have nothing to fear from police.” REALLY? tell that to the hundreds of people who have been exonerated, often after spending decades behind bars. Tell that to the victims of planted evidence, false dog alerts and physical abuse by cops who care nothing for rights. Google ‘ police misconduct ‘ sometime or visit the DOj or ACLU websites for updates on this weeks corrupt cops stories. I believe that fearing cops in this day and age is a must for survival. Most cops, the vast majority, consider a refusal of a consent request to be an insult and a challenge to their ” authority ” and will do anything they can to proceed despite the law, including coercion, intimidation and bullying to get consent.

      If the police have nothing to fear from their actions why do so many violate the rights of photographers and other witnesses to their actions? If we as a people allow the police to search us based only on a hunch or less because we ” have nothing to fear ” we might as well shred the Constitution. Remember what Ben Franklin said: ” those who would trade liberty for security deserve neither ” . Once some years ago at a DL checkpoint the cop who asked for my license asked me if I had any guns or drugs in my car, and I told him that if I was being detained I had nothing to say without counsel, and if not I was going to leave. He looked startled and asked me if I had anything to hide. I replied that I did not have anything to hide, but something to protect: The Constitution of the USA. he relented, likley knowing that any violation of my rights would result in a federal 1983 lawsuit, which it would have. Citizens who do not know their rights or allow cops to circumvent those rights by consent requests are feeding the slide down the slippery slope of a police state mentality.

      Also, just because police abuses can be ” contested in court” does not mean that you win: The illegal searches, loss of property and time in jai, bond costs and attorneys fees to get justice done means that cops who go too far actually risk no penalty…a dismissed case doesn’t bother them when they have achieved their goal of another bust and the knowledge that they ” won ‘ the day.
      In a DV case the dog that the cops bring in to ” look for hidden persons ‘ will of course alert to the pot in the bookcase..cops know exactly how to get the results they desire in roundabout ways, and the courts almost always find a way to legitimize their actions.

      If you are filming cops in public you have reason to fear them due to cops hatred of being witnessed violating rights. If you are open carrying a legal gun in public, you have reason to fear that the cops will swarm you and illegally detain you while they ” check you out” without RS. i could go on and on…today the police see the populace as ” civilians ‘ who should kowtow to any presumed authority and allow intrusions not in keeping with a free people. Anytime a cop asks you to throw away your rights to satisfy their curiosity or hunches they are insulting the sacrifices of all patriots who have shed their blood to defend the Constituion, Shame on thm, and on the people who allow them such liberties with our heritage.

    • I have been a victim of harassment by the police. I have had my civil rights violated by the police. I have had my constitutional rights violated by the police. Just because “I have nothing to hide” does NOT mean that I have to allow any cop who comes along to cop a feel. The constitution says you do not have to consent to a search without a warrant. So, officer, my answer is “I do not consent”.


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