Supreme Court narrows right to object to a police search of suspect's home

Walter Fernandez objected to a police search of his home. His girlfriend, after his arrest, did not. US Supreme Court rules the search was constitutional. Three dissenting justices say it diminishes Fourth Amendment rights.

The US Supreme Court on Tuesday made it significantly easier for police to conduct a warrantless search of a home when one of two occupants objects to a police search but the other does not.

The 6-to-3 decision came in a case from Los Angeles involving a suspect who loudly informed police at his front door that they were not welcome in his home.

“You don’t have any right to come in here,” Walter Fernandez told the police. “I know my rights.”

The officers were initially responding to a report of a gang-related robbery nearby, which they suspected may have been carried out by Mr. Fernandez.

By the time Fernandez told police to stay out, they were already interviewing his girlfriend, who also lived in the apartment. The girlfriend looked to police as if she had just been beaten up.

Based in part on evidence of possible domestic abuse, the officers placed Fernandez under arrest and drove him to the police station.

About an hour later, the officers returned to the apartment and asked the girlfriend for permission to search the home. She was reluctant, but eventually agreed.

During the search, the police found gang-related paraphernalia, a knife, clothing worn by the suspected robber, and a sawed-off shotgun.

Fernandez was charged with robbery, domestic abuse, and possession of guns and ammunition by a convicted felon.

Before his trial, Fernandez’s lawyer sought to suppress the evidence obtained during the search of the apartment. The lawyer argued that police needed to obtain a court-authorized warrant before entering his home and seizing evidence, since Fernandez had refused to consent to a warrantless search.

The question in the case, Fernandez v. California (12-7822), was whether the girlfriend’s agreement to allow the police to search the apartment overcame Fernandez’s Fourth Amendment right to be free from such police intrusions without a warrant.

The majority justices ruled that because Fernandez had been lawfully arrested by police and taken to the police station for booking, his girlfriend’s subsequent agreement to allow a search superseded his earlier objection.

“We … hold that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason,” Justice Samuel Alito wrote in the majority opinion.

The decision significantly narrows a 2006 high court decision in which the justices ruled that police could not search a residence when one of the two occupants objects to such a search. In that case, the suspect was refusing to allow police to conduct a search of the residence, while another occupant consented to such a search. The Supreme Court said that police had to honor the wishes of the objecting party when the objector was physically present at the location to be searched.

In the Fernandez case, he, too, was physically present at the location to be searched, at least until he was arrested and taken away. Once he was no longer physically present, police then approached his girlfriend for permission to search.

In a dissenting opinion, Justice Ruth Bader Ginsburg said police should be required to honor Fernandez’s objection. The dissent, joined by Justices Sonia Sotomayor and Elena Kagan, added that it would not have hindered the police investigation because police already had probable cause to justify a search warrant to a judge.

She warned that the high court decision might send a dangerous message to law enforcement officials. “Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it, never mind [that there was] ample time to secure the approval of a neutral magistrate,” Justice Ginsburg wrote.

She said the decision amounted to a “drastic reduction” of Fourth Amendment protections.

“Although the police have probable cause and could obtain a warrant with dispatch, if they can gain the consent of someone other than the suspect, why should the law insist on the formality of a warrant,” Ginsburg asked. She answered her own question: “Because 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.”

In his majority opinion, Justice Alito said a high court decision recognizing Fernandez’s earlier objection to the search would raise a number of practical problems.

How long would such an objection remain binding, Alito asked. A week? A month? A year? Ten years?

He said the better approach was to embrace a narrow reading of the 2006 decision. Such a narrow approach requires a suspect to be physically present and objecting to prevent another occupant of the same residence from granting the police authorization to conduct a warrantless search.

Alito also rejected the suggestion that police could have quickly and easily obtained a warrant from a judge or magistrate.

“This argument misunderstands the constitutional status of consent searches,” Alito wrote.

“A warrantless consent search is reasonable and thus consistent with the Fourth Amendment irrespective of the availability of a warrant,” he said. “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, he added, obtaining a warrant anyway may unjustifiably interfere with legitimate law enforcement strategies, Alito said.

He went on to say that, under the circumstances of the Fernandez case, the physically abused girlfriend enjoyed her own independent right to invite the police to search the residence.

“Having beaten [his girlfriend], petitioner would bar her from controlling access to her own home until such time as he chose to relent,” Alito said. “The Fourth Amendment does not give him that power.”

In their dissent, the three women on the court – Ginsburg, Sotomayor, and Kagan – rejected the majority’s references to domestic abuse as a justification for its decision.

“If a person’s health and safety are threatened by a domestic abuser, exigent circumstances would justify immediate removal of the abuser from the premises, as happened here,” Ginsburg said.

“Domestic abuse is indeed a serious problem in the United States,” she wrote. But “the specter of domestic abuse hardly necessitates the diminution of the Fourth Amendment rights at stake here,” she added.

Fernandez was tried and convicted on the robbery and domestic abuse charges. He pleaded no contest to the firearms charges. He is currently serving a 14-year term in California state prison.