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.