In Fernandez v. California [i], the United States Supreme Court clarified language from Georgia v. Randolph [ii], where it was held that officers could not enter a home based on consent when co-occupants were on the scene and one of the co-occupants was consenting while the other was objecting to entry. In Fernandez, the Court examined the validity of consent when law enforcement has removed the co-occupant from the scene and then gets consent of the remaining occupant. The Court held that if the removal of the co-occupant is objectively reasonable, the subsequent consent of the remaining occupant is valid.
The Court outlined the facts in Fernandez as follows:
The events involved in this case occurred in Los Angeles in October 2009. After observing Abel Lopez cash a check, petitioner Walter Fernandez approached Lopez and asked about the neighborhood in which he lived. When Lopez responded that he was from Mexico, Fernandez laughed and told Lopez that he was in territory ruled by the “D.F.S.,” i.e., the “Drifters” gang. [Fernandez] then pulled out a knife and pointed it at Lopez’ chest. Lopez raised his hand in self-defense, and [Fernandez] cut him on the wrist.
Lopez ran from the scene and called 911 for help, but [Fernandez] whistled, and four men emerged from a nearby apartment building and attacked Lopez. After knocking him to the ground, they hit and kicked him and took his cell phone and his wallet, which contained $400 in cash. A police dispatch reported the incident and mentioned the possibility of gang involvement, and two Los Angeles police officers, Detective Clark and Officer Cirrito, drove to an alley frequented by members of the Drifters. A man who appeared scared walked by the officers and said: “‘[T]he guy is in the apartment.’” The officers then observed a man run through the alley and into the building to which the man was pointing. A minute or two later, the officers heard sounds of screaming and fighting coming from that building.
After backup arrived, the officers knocked on the door of the apartment unit from which the screams had been heard. Roxanne Rojas answered the door. She was holding a baby and appeared to be crying. Her face was red, and she had a large bump on her nose. The officers also saw blood on her shirt and hand from what appeared to be a fresh injury. Rojas told the police that she had been in a fight. Officer Cirrito asked if anyone else was in the apartment, and Rojas said that her 4-year-old son was the only other person present.
After Officer Cirrito asked Rojas to step out of the apartment so that he could conduct a protective sweep, [Fernandez] appeared at the door wearing only boxer shorts. Apparently agitated, [Fernandez] stepped forward and said, “‘You don’t have any right to come in here. I know my rights.’” Suspecting that petitioner had assaulted Rojas, the officers removed him from the apartment and then placed him under arrest. Lopez identified [Fernandez] as his initial attacker, and [Fernandez] was taken to the police station for booking.
Approximately one hour after [Fernandez’s] arrest, Detective Clark returned to the apartment and informed Rojas that [Fernandez] had been arrested. Detective Clark requested and received both oral and written consent from Rojas to search the premises. In the apartment, the police found Drifters gang paraphernalia, a butterfly knife, clothing worn by the robbery suspect, and ammunition. Rojas’ young son also showed the officers where [Fernandez] had hidden a sawed-off shotgun.
In its review the Court recognized that Consent is an exception to the warrant requirement and explained:
Consent searches occupy one of these categories. “Consent searches are part of the standard investigatory techniques of law enforcement agencies” and are “a constitutionally permissible and wholly legitimate aspect of effective police activity.” Schneckloth v. Bustamonte, 412 U.S. 218, 228, 231-232, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). It would be unreasonable—indeed, absurd—to require police officers to obtain a warrant when the sole owner or occupant of a house or apartment voluntarily consents to a search. The owner of a home has a right to allow others to enter and examine the premises, and there is no reason why the owner should not be permitted to extend this same privilege to police officers if that is the owner’s choice. Where the owner believes that he or she is under suspicion, the owner may want the police to search the premises so that their suspicions are dispelled. This may be particularly important where the owner has a strong interest in the apprehension of the perpetrator of a crime and believes that the suspicions of the police are deflecting the course of their investigation. An owner may want the police to search even where they lack probable cause, and if a warrant were always required, this could not be done. And even where the police could establish probable cause, requiring a warrant despite the owner’s consent would needlessly inconvenience everyone involved—not only the officers and the magistrate but also the occupant of the premises, who would generally either be compelled or would feel a need to stay until the search was completed. Michigan v. Summers, 452 U.S. 692, 701, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981).
The Court then raised the question:
While it is clear that a warrantless search is reasonable when the sole occupant of a house or apartment consents, what happens when there are two or more occupants? Must they all consent? Must they all be asked? Is consent by one occupant enough?
In answering this question the Court began by reviewing United States v. Matlock, [iii] a forty-year old case which is still good law. The facts in Matlock, were reported by the Court as follows:
In that case, Matlock and a woman named Graff were living together in a house that was also occupied by several of Graff’s siblings and by her mother, who had rented the house. While in the front yard of the house, Matlock was arrested for bank robbery and was placed in a squad car. Although the police could have easily asked him for consent to search the room that he and Graff shared, they did not do so. Instead, they knocked on the door and obtained Graff’s permission to search. The search yielded incriminating evidence, which the defendant sought to suppress, but this Court held that Graff’s consent justified the warrantless search. As the Court put it, “the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.”
In distinguishing Georgia v. Randolph, the Court asserted that Randolph, created a very narrow exception to the long standing proposition that the consent of one co-occupant is sufficient to allow entry. This narrow exception is that entry will not be justified when there is an objecting co-occupant present at the scene and objecting.
Fernandez’s first argument was that since his absence was brought about by law enforcement, it should not impact the requirement that he be present to object.
The Court responded:
In Randolph, the Court suggested in dictum (dictum means a non-binding suggestion) that consent by one occupant might not be sufficient if “there is evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection.” We do not believe the statement should be read to suggest that improper motive may invalidate objectively justified removal. Hence, it does not govern here. The Randolph dictum is best understood not to require an inquiry into the subjective intent of officers who detain or arrest a potential objector but instead to refer to situations in which the removal of the potential objector is not objectively reasonable.
The Court then held that where the objecting occupant’s absence is the result of a lawful detention or arrest, they sit in the same position as a co-occupant who is absent for any other reason.
Fernandez’s second argument was that his initial objection at the door when he told officers they had no right to enter remained in effect until such time as he changed his mind and authorized officer to make an entry. Since he had not changed his mind and withdrawn his objection, he argued that the subsequent consent by Rojas was invalid based on his initial objection.
The Court rejected Fernandez’s second argument as well. In doing so, they narrowly interpreted the physical presence and objecting requirement from Randolph. The Court cited that fact that a guest who was invited to a home by one occupant would likely not enter if a co-occupant was physically present and telling the guest to stay out. In the alternative, if the objector was not present and not likely to return during the visit, the guest would likely enter. Using this social norm, the Court refused to accept Fernandez’s argument. The Court also rejected placing a time limit on how long an objection would last. In doing so the Court pointed to numerous problems such a rule would create, and concluded that if Randolph was taken at its word, that the objector had to be physically present and objecting, all of the cited problems would not exist.
The Bottom Line:
Consent is valid if made by someone who has authority to consent and no co-occupant is physically present and objecting.
In the event that law enforcement has removed a co-occupant, even one who has previously objected to law enforcement’s entry, the consent of the occupant who is present is valid as long as the removal of the objector was objectively reasonable.
Where the removal was the result of a valid detention or valid arrest, the removal is objectively reasonable.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] Fernandez v. California, 2014 U.S. LEXIS 1636 (2/25/14).
[ii] Georgia v. Randolph, 547 U.S. 103 (2006).
[iii] U.S. v. Matlock, 415 U.S. 164 (1974).