Feb 27

Brian Augenthaler

U.S. Supreme Court rules police can search residence with consent of one occupant even if an absent occupant objects

by Brian Augenthaler

The United States Supreme Court recently clarified a police officer’s authority to conduct a warrantless search when a residence has multiple occupants. A single resident’s consent has long been an exception to the warrant requirement for the search of a home. Confusion has resulted from the situation where a residence houses more than one occupant.

What if one occupant consents and the other objects? Can a police officer accept the consent of one individual and ignore the objection lodged by the other? The answer to that question has been—and remains—“No.”  If both occupants are present and one objects to entry, then the consent of the other occupant is generally insufficient for lawful entry to conduct a search. However, the Supreme Court in Fernandez v. California, 12-7822, 2014 WL 700100 (U.S. Feb. 25, 2014), held that if a home has two occupants and one consents while the other is away, then the consent of the present occupant is sufficient.

The Ferndandez case involved a gang member who robbed, stabbed, and beat a man. The victim called 911, and (following a brief investigation) the police followed the gang member to an apartment building. The officers heard screaming and fighting coming from the building. The police knocked on the door of the apartment unit from which the noise had emanated. A woman opened the door. She told the police she had been in a fight, and the blood on her shirt and marks on her face corroborated that statement. The police asked the battered woman if there was anyone else in the apartment. She replied that it was just her minor son. A police officer asked the battered woman to come out of the apartment so he could conduct a protective sweep of the premises. The gang member appeared at the door and said, “You don’t have any rights to come in here. I know my rights.” The police removed the gang member from the apartment and placed him under arrest on suspicion that he had assaulted the woman. About an hour after the gang member was arrested, a detective returned to the apartment and asked the battered woman for consent to search the premises. Acting pursuant to the consent exception to the search warrant requirement, the police searched the residence and found gang paraphernalia and weapons. The battered woman’s son showed the police where the gang member hid his sawed-off shotgun.

The United States Supreme Court held that in order for the objection of one occupant to negate the consent of another, the objecting party must be physically present and remain so. The gang member had been removed by the police for a lawful reason—investigation and arrest for domestic violence. “[A]n 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.” Furthermore, objections made by an occupant are only effective so long as the objecting occupant is standing in the doorway telling officers to “stay out” when the officers propose to make a consent search. Therefore, the Court upheld the gang member’s fourteen year prison term.

The Fernandez case was decided by a six judge to three judge majority. Justice Alito wrote the opinion for the majority and Justice Ginsburg the dissent. Justices Alito and Thomas also wrote concurring opinions to note their disagreement with a 2006 case cited in the majority opinion, which had been resolved on “widely shared social expectations” as opposed to the text or history of the Fourth Amendment.  

The Fernandez case implicitly changed co-occupant consent law in the Ninth Circuit as previously provided by United States v. Murphy, 516 F.3d 1117, 1119 (9th Cir. 2008) (storage unit renter denies consent, is arrested, and co-renter later consents—with the Ninth Circuit holding that the first renter’s explicit objection was valid and thus his Fourth Amendment rights were denied). The Ninth Circuit is the busiest appellate court in the United States. It includes the federal courts for the states of Washington, Oregon, Idaho, Hawaii, Montana, Arizona, Nevada, and California. The Ninth Circuit has earned a reputation of reversals at the Supreme Court level for its decisions about law enforcement.

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