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SCOTUS: Police may conduct warrantless search of jointly-occupied dwelling if they first remove objecting occupant and then obtain co-occupant’s consent

Fernandez v. California, USSC 12-7822, 2/25/14, affirming People v. Fernandez, 145 Cal Rptr.3rd 51 (Cal Ct. App. 2012).

Docket here; SCOTUSblog analysis of decision here; Orin Kerr’s “Five Thoughts on Fernandez” here; On Point analysis of cert grant here

Police officers may, without a warrant, search a jointly occupied premises if one of the occupants consents to the search.  U.S. v. Matlock, 415 U.S. 164 (1974).  There is an exception, however, where multiple occupants standing on the doorstep of the premises disagree about whether to allow a warrantless police search.  In this situation, tie goes to the objector.  Georgia v. Randolph, 547 U.S. 103 (2006).

Here, Fernandez and his girlfriend/co-occupant stood on their doorstep facing the police when he objected to a search.  Suspecting that Fernandez had just assaulted his girlfriend, the police arrested him and took him to the police station.  An hour later, they returned and obtained his girlfriend’s consent to search the premises without a warrant.  The Court held the search complied with the Fourth Amendment based upon the girlfriend’s consent.  In the majority’s view, “an occupant who is absent due to lawful detention or arrest stands in the same shoe as an occupant who is absent for any other reason.” Slip op. at 10.

Justice Ginsburg dissented (joined by Sotomayor and Ginsburg) and argued that this case looks like Randolph in that the objecting occupant was in fact physically present at the door when he objected to the search.  The difference is that the police arrested Fernandez, hauled him away and then returned an hour later, which was more than enough time to get a search warrant.  In her view, the majority opinion shrinks Randolph to “petite size.” Slip op., Ginsburg, J. at 2.

The majority admits uncertainty as to how Randolph applies where the objecting co-occupant is in close proximity to, but not at, the doorstep to the residence.  Slip op. at 13 (“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”). State v.  St. Martin, 2011 WI 44, 334 Wis. 2d 290, 899 N.W.2d 858, presented facts kind of like that.  St. Martin’s girlfriend, who was present at their dwelling, consented to the search, while St. Martin, who was sitting in a squad car outside their dwelling, objected to the search.  SCOW, taking a hard-nosed view, upheld the search because St. Martin was not physically present at the threshold of the dwelling when he objected.  See On Point analysis here.  So, if you don’t like St. Martin’s rule, or you have one of these “outer boundary of the premises” situations, or  your client objected to the search at the door but stepped away momentarily to call his lawyer (or blow his nose or use the facilties or . . . ) thereby allowing the police to rush in sans warrant, by all means keep knock, knock, knocking on SCOTUS’s door with cert petitions.  See SCOTUSblog’s “Five Thoughts on Fernandez v. California.”  There’s plenty of ambiguity left for a follow-up case.

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