Two Implications from the Fernandez v. California Ruling

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.