On February 25, 2014, in an apparent exercise in judicial restraint, the Supreme Court reaffirmed that a co-occupant’s physical presence is key in determining whether her objection to a warrantless search of her home overcomes a co-occupant’s permission in Fernandez v. California. The majority opinion, written by Justice Alito, narrowed the exception laid out in Georgia v. Randolph, which held a co-occupant’s present objection overrides a separate co-occupant’s willingness to consent. In Fernandez, a co-occupant’s objection is valid only as long as the co-occupant is physically present. In practice, in scenarios involving a co-occupant willing to grant consent to a warrantless search, the police need only wait till the objecting co-tenant leaves or remove him from the premises so long as the removal is justified as a reasonable seizure.
In Fernandez, police knocked on Fernandez’ apartment door searching for a robbery suspect. Roxanne Rojas answered while holding her son. Rojas’ face was red from crying, there was a large bump on her nose, and blood was apparent on her shirt. When asked to conduct a search, petitioner came to the door and refused. The police placed petitioner under arrest and took him away on suspicion of domestic violence. Approximately one hour later, the police returned to petitioner’s home and spoke with Rojas and her son, obtaining consent to search the apartment. At trial, petitioner unsuccessfully moved to suppress evidence found as a result claiming the search unreasonable since police conducted the warrantless search over his objection. The government rebuffed petitioner’s claims, insisting Georgia v. Randolph inapplicable since petitioner was not physically present at the time Rojas gave consent. Reluctant to create a bright line rule, the Supreme Court agreed being physically present was necessary to object to a warrantless search. Since petitioner was absent the second time police asked Rojas for consent, the search was permissible.
Two apparent implications arise from the ruling, raising questions practitioners may find themselves hard pressed to answer when attempting to square the ruling in practice. First, the new ruling effectively shortens the duration of a co-occupant’s valid objection, making it easier for police to circumvent a co-occupant’s objection. In this case, Fernandez was removed on suspicions of domestic violence. Secondly, the Court emphasized the “physically present on the premises” element (meaning where a co-occupant is located when she objects) may be dispositive in a criminal case involving a defendant’s refusal to grant consent. When police encounter an objecting occupant, police need only wait till the objecting tenant leaves the premises to overcome that objection for it is only as good as long as the occupant remains on the premises.
While the Court sought to reaffirm the narrow exception in Randolph, the Court has in effect limited it further by setting an expiration time on such apparent disclosures. While the court did not expressly say how long an objection lasts, the facts of this case indicated an hour had passed since the objection was made to police before they received consent from Rojas. This implies that an hour may be sufficiently long enough for an objection to expire. Yet, there is no bright-line rule - which may be the next question to come before the court concerning warrantless searches concerning conflicting co-occupants.
Secondly, the physical location of the objecting co-occupant becomes an important element in determining the validity of their refusal to grant consent over a more willing co-occupant. The majority emphasized that Randolph applies only when the objection takes place at the door of the household. However, previous case law hints that it’s the premise as a whole that matters regardless of where the objection may come from. As consequence, an occupant is essentially discouraged from leaving his home when he is aware police may seek warrantless entry. For as soon as the objecting occupant leaves the house for whatever reason, his express objection dissipates when he leaves the front door. Merely leaving the house could open the door for police to obtain consent to a warrantless search, despite the relatively recent objection of when a person has made it expressly apparent to the police that such consent is not present.
This second element raises an alternative concern involving the cause of the co-occupant’s absence from the premises. Here, police removed Fernandez on undisputed grounds as a reasonable seizure. In fact, the majority used a previous case, United States v. Matlock, which involved an objecting co-occupant who was arrested and placed in the cop car parked on the driveway. In Matlock, the Court ruled the objection expired once he was removed from the door-way. Where the objecting co-occupant is matters in the determination, but the question of exactly where remains open-ended. The answer to which could be the dispositive factor in whether the police’s warrantless searches were properly consented too despite an apparent objection by a co-occupant.
As a result of the Fernandez opinion, the questions surrounding warrantless consent searches of a multi-occupant home turns away from the length of the objections’ validity but now towards the location of the objecting co-occupant. This shift in attention to the place and manner of the objection could potentially take us down the warrantless exception rabbit-hole even further.
Staffer, Criminal Law Practitioner