Supreme Court allows consent by co-occupant to warrantless search

Although the warrant requirement is the "bulwark of Fourth Amendment protection" from unreasonable searches of one's home, the U.S. Supreme Court's recent decision in Fernandez v. California bypasses the need for a warrant by allowing a co-occupant to consent to a search, even though the other occupant objected.

The court based its decision on the need for the objector to the search to be "physically present," literally "at the door" of the premises, in order for his or her objection to be valid. Since the defendant had objected initially at his door, but then was arrested and taken away, his objection did not continue until he decided otherwise.

Police Trail Robbery Suspect To Apartment, Hear Screams

The defendant in the Fernandez case was involved in a robbery and was seen running into his apartment building by a passer-by. The police heard screams and fighting sounds coming from the residence, knocked on the door, and a woman who appeared battered and bloody answered, saying only she and her four-year-old son were there.

When the police asked her to step outside so they could conduct a protective sweep, the defendant appeared at the door and told the police they could not come in, that he knew his rights. The police suspected him of attacking the woman, so they arrested him.

Police Return In An Hour, But Not With A Warrant

The police returned to the apartment and told the woman co-occupant that the defendant had been arrested. They then obtained her consent to search the apartment; the defendant's earlier objection was no longer valid since he was not "present" to make the objection. The police found gang paraphernalia, weapons and clothing worn by the robbery suspect; the woman occupant's young son even showed them where the defendant had stashed a sawed-off shotgun.

On the basis of the evidence found in the apartment, the defendant was charged with infliction of injury on a spouse or cohabitant, robbery, and several weapons charges.

The defendant tried to get the items found in the apartment suppressed, but his motion was denied.

Absence Due To Arrest Is The Same As Absence For Any Other Reason

The justices focused on the concept of the presence of the objector as the controlling factor in the case. Even though the defendant had strenuously objected to the police entering the home earlier, his objection did not extend to a time when he was not present at the door. The co-occupant had the same right to consent to a search of the apartment, and did so when the police came back.

The court turned the situation around, saying that a continuing objection by one occupant would trample on the co-occupant's rights to consent to a search. A resident may want to "dispel suspicion raised by sharing quarters with a criminal," or make sure dangerous contraband is taken out of the house, as was the case here with the sawed-off shotgun that the four-year-old son had access to.

Dissent Finds Warrant Requirement Paramount

The dissenting justices called the majority's decision a suppression of the warrant requirement that is not replaced by consent to a search. The police's burden from the delay and inconvenience of having to get a warrant were met with reminders that many state statutes allow for electronic or remote warrant applications.

In this case, there was ample time to obtain a warrant, and police should still be made to honor the warrant requirement. Contact an experienced attorney to make sure illegally obtained evidence is not used to violate your rights.