Fernandez v. California: Does the refusal to Consent to Search of Premises by a Person with Common Authority Continue to Have Effect after the Person is no Longer on the Premises
by Jack E. Call
Professor of Criminal Justice
Radford University
E-mail: jcall@radford.edu
On February 25, the Supreme Court decided the case of Fernandez v. California.[1] The issue in the case concerned the validity of the consent given the police to search an apartment by a person living in the apartment. The police had gone to Fernandez’s apartment because they had reason to believe that Fernandez had participated in a gang-related robbery. When they arrived at the apartment, they heard screaming and other sounds suggesting that a fight was taking place in the apartment.
When they knocked, the door was opened by Fernandez’s girlfriend, who lived in the apartment with Fernandez and their children. She was bloody and bruised. Before the police could engage in significant conversation with the girlfriend, Fernandez appeared, became angry, and disputed the officers’ right to be there when they asked him to step away from the door. The officers restrained Fernandez because they believed he had assaulted his girlfriend, and shortly thereafter arrested him for the gang-related assault. About an hour after taking Fernandez to the police station, the police returned to his apartment and obtained his girlfriend’s consent to search the apartment. The search turned up evidence implicating Fernandez in the robbery.
It has been well established by the Supreme Court that a person who has common authority over premises may give valid consent to search those premises.[2] A person has common authority over a place if they have “mutual use of the property …. [and] joint access or control for most purposes.”[3] There is no question in this case that Fernandez’s girlfriend had common authority over the apartment.
The issue about the validity of her consent stems from the Court’s decision in Georgia v. Randolph.[4] In that case, the police had asked for and received consent to search the Randolph home from Randolph’s estranged wife. However, Randolph was present at the time and objected to the search. The Court held that the police could not search on the basis of consent given by a person with common authority over the premises when another person with common authority was present and objected. The rationale for the decision was that the rule comports with generally accepted social norms. An individual who goes to a residence to visit a person who lives there would not feel welcome to enter the premises if another person who lived there was present and objected to the visit.
The issue in the Fernandez case was whether the police may go back to a residence and obtain consent from a third party when the defendant had shortly before been present and objected to the search. (Although it does not appear that Fernandez explicitly objected to a search of his apartment, Fernandez had said to the police at his home: “You don't have any right to come in here. I know my rights.” The Supreme Court viewed that comment as an objection to a police search of the apartment).
The Court held, in a 6-3 decision, that its ruling in the Randolph case only applies to those situations where the person with common authority who is objecting to the search is present on the premises. In coming to this conclusion, the Court had to deal with a statement in the Randolph opinion that Fernandez had used to support his argument that the police were prevented from searching because he objected to the search. In Randolph, the Court had supported its ruling in part because of the clarity of the rule it had created. However, the Court indicated that this clarity might not exist where there was “evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection.” The apparent implication was that the police may not remove an objecting person from the premises simply to avoid the Randolph rule. (This statement made by the Court in quotation marks is what lawyers call dicta, which is a statement made in a judicial opinion that did not have to be made in order to resolve the issue before the court. In Randolph, the Court could have resolved the issue before it without making this statement about the police removing a potentially objecting party from the premises they want to search. Statements that are dicta do not create a rule of law that has to be followed in future cases, either by the Supreme Court or by lower courts).
The Court dealt with the issue about whether the police may remove a person objecting to their search by indicating that in this case the police had an “objectively reasonable” basis for removing Fernandez from his home after he had objected to attempts by the police to enter the home. (Fernandez conceded that the police had probable cause to arrest him for assaulting his girlfriend). This approach is consistent with other recent cases from the Supreme Court in which the Court has indicated that it is undesirable to examine the subjective motivations of the police.[5]
It is important to note, however, that by dealing with the dicta from Randolph in this way, the Court left uncertain the rule it would apply if there was no objectively reasonable basis for removing a suspect from the premises to be searched. For example, assume the police lack probable cause to arrest a suspect, but they remove him from the premises anyway so they can search in reliance on the consent of another person with common authority who remains on the premises. The Fernandez ruling offers no clear guidance as to whether this would be a valid consent search.
Another uncertainty after Fernandez is what is meant by “on the premises.” As indicated above, the rule established by Randolph is that the police may not search on the basis of consent from someone with common authority over the premises if someone else with common authority is present on the premises and objects to the search. There are a couple of places in the Fernandez opinion where the Court makes reference to the objection of the removed party having been voiced while standing at the door. At one point, for example, the Court says that “[i]f Randolph is taken at its word – that it applies only when the objector is standing in the door saying ‘stay out’ when officers propose to make a consent search – all problems [discussed earlier in the opinion] disappear.”
If the objection must be expressed at the doorway, what would happen if the police enter to search based on consent given by, say, a wife, and while conducting a search of the home, they happen upon the husband who orders the police to stop the search? Does the Randolph rule mean that the search must be terminated?
The quote about the Randolph rule applying only when the objecting party is standing in the doorway might suggest a negative answer to this question. However, at another place in the Randolph opinion, the Court says “if, as we conclude, Randolph requires presence on the premises to be searched, there may be cases in which the outer boundary of the premises is disputed…. Having held that a premises rule is workable in [Bailey v. United States – a case discussed in an earlier issue of the Bulletin] we see no ground for reaching a different conclusion here.” This statement does not seem consistent with a conclusion that “on the premises” means “standing in or at the doorway.” The answer to this question is important because it concerns a situation that the police are likely to encounter from time to time.
There is one last observation about Fernandez that bears mentioning. There has been an enduring debate over the years about whether the 4th Amendment contains a warrant requirement (sometimes called a warrant preference). The language of the 4th Amendment is not clear about this.[6] The Amendment consists of two parts. The first part simply prohibits unreasonable searches and seizures. The second part (connected to the first part with the conjunction “and”) indicates that warrants must be based on probable cause and must be specific as to the place to be searched and the things sought in the search.
One school of thought is that, while the amendment is not clear as to whether warrants are required for searches and seizures, the second part of the amendment dealing with warrants relates back to the first part and means that searches and seizures are ordinarily unreasonable unless conducted with a warrant. There is a good deal of language in Supreme Court cases supporting this school of thought.[7] Traditionally, the Court appears to have followed this approach, and the overwhelming majority of textbooks on search and seizure organize their discussion of the subject around “exceptions to the warrant requirement.”
There is another school of thought, however, that rejects the warrant requirement. Its interpretation of the amendment is that the first part means what it says – that searches and seizures must be done in reasonable manner. The presence or absence of a warrant, under this approach, would simply be one factor to consider in making the reasonableness determination. The second part is viewed as being wholly unconnected to the first part. It simply means that in those cases where a warrant is utilized, it must be supported by probable cause and must be particular in its language as to where to search and what to search for. Although the present Court has not engaged in any meaningful debate on this language, some observers of the Court believe that a majority of the Justices on the present Court adhere to this reasonableness view of the 4th Amendment.[8]
These two schools of thought can be seen at work in the Fernandez opinion. Writing for the six Justices in the majority, Justice Alito begins his legal analysis by reiterating that “the text of the Fourth Amendment does not specify when a search warrant must be obtained.”[9] However, he continued, “[o]ur cases establish that a warrant is generally required for a search of a home …. but ‘the ultimate touchstone of the Fourth Amendment is “reasonableness”’ … And certain categories of permissible warrantless searches have long been recognized.” (Emphasis added) While this is not quite a repudiation of a 4th Amendment warrant requirement, it comes quite close.
Justice Ginsburg, writing for herself and two other dissenting Justices, describes Fourth Amendment requirements much differently.
The Fourth Amendment guarantees to the people “[t]he right … to be secure in their … houses … against unreasonable searches and seizures.” Warrants to search premises, the Amendment further instructs, shall issue only when authorized by a neutral magistrate upon a showing of "probable cause" to believe criminal activity has occurred or is afoot. This Court has read these complementary provisions to convey that, "whenever practicable, [the police must] obtain advance judicial approval of searches and seizures through the warrant procedure."
The decision in Fernandez demonstrates the practical significance of this debate. The defense had argued that “expansive interpretation of Randolph would not hamper law enforcement because in most cases where officers have probable cause to arrest a physically present objector they also have probable cause to search the premises that the objector does not want them to enter.” In responding to this argument, Justice Alito clearly views the warrant process as burdensome and occasionally counterproductive.
Even with modern technological advances, the warrant procedure imposes burdens on the officers who wish to search, the magistrate who must review the warrant application, and the party willing to give consent. When a warrantless search is justified, requiring the police to obtain a warrant may "unjustifiably interfer[e] with legitimate law enforcement strategies." …. Such a requirement may also impose an unmerited burden on the person who consents to an immediate search, since the warrant application procedure entails delay.
If the majority saw genuine value to warrants, it would likely have been much more receptive to the argument by the defense.
Not surprisingly, the dissenters clearly take a different view of the warrant requirement. After characterizing the majority opinion as a decision that encourages the police to “dodge” the warrant requirement, the dissenters indicate that the warrant requirement is important
[b]ecause the Framers saw the neutral magistrate as an essential part of the criminal process shielding all of us, good or bad, saint or sinner, from unchecked police activity. See, e.g., Johnson v. United States … (1948) ("The point of the Fourth Amendment . . . is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."). "The investigation of crime," of course, "would always be simplified if warrants were unnecessary." …."But the Fourth Amendment," the Court has long recognized, "reflects the view of those who wrote the Bill of Rights that the privacy of a person's home and property may not be totally sacrificed in the name of maximum simplicity in enforcement of the criminal law."
This respect for warrants motivates the dissenters to give more respect to the decision of a person with common authority who objects to a warrantless search of his or her premises by the police.
Whether Fernandez will move the present Court toward a more explicit debate about whether the 4th Amendment contains a warrant requirement remains to be seen. What Fernandez makes clear is that the resolution of that debate is likely to have important implications for the future direction of 4th Amendment law.
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1] Slip opinion available: http://www.supremecourt.gov/opinions/13pdf/12-7822_he4l.pdf.
[2] United States v. Matlock, 415 U.S. 164 (1974).
[5] See, for example, Whren v. U.S., 517 U.S. 806 (1996) and Scott v. U.S., 436 U.S. 128 (1978).
[6] The text of the 4th Amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
[7] See, for example, Mincey v. Arizona, 437 U.S. 385 (1978).
[8] See, for example, Whitebread and Slobogin, Criminal Procedure (Foundation Press, 5th ed., 2008).
[9] This quote was actually taken from Kentucky v. King, 563 U.S. _____ (2011).
Disclaimer: The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.