Generally speaking, consent searches are on the long list of unwanted events that create additional hurdles to mounting an effective defense in any criminal case. Fernandez v. California, decided by the U.S. Supreme Court on February 25, 2014, exacerbates these problems.
Fernandez, a suspect in a violent robbery was seen running into an apartment building. Screams were subsequently heard from one of the apartments in that building. The police knocked on the door, which was answered by Roxanne Rojas. Ms. Rojas was battered and bleeding. The officers asked her to step outside so that they could conduct a protective sweep. Fernandez then came to the door and objected to their presence in the apartment. The officers suspected that he had assaulted Rojas, removed him from the apartment, and arrested him. He was then identified as the perpetrator of the prior robbery and taken to the police station. An officer then returned to the apartment, asked for and received Rojas’ consent for a search, and found evidentiary items linking Fernandez to the robbery. The trial court denied a suppression motion, Fernandez was convicted, and the California Court of Appeals affirmed.
On review, the U.S. Supreme Court recalled Shneckloth v. Bustamonte, which held that consent searches are permissible warrantless searches. A situation where the home only has one occupant who consents to the search does not raise any issues. The court noted further that U.S. v. Matlock held that when the premises has multiple occupants, such a search is valid even if only one occupant is present and consents, so long as that occupant has common authority over the premises. Finally, in Georgia v. Randolph, the Court held that where a physically present occupant refuses to consent, that refusal is dispositive as to him, notwithstanding the consent of another occupant. In the matter at bar, Rojas was the only occupant present when the subsequent request for consent was made, and the police obviously knew that Fernandez previously refused consent. The issue was whether and/or to what extent Fernandez prior refusal, made when he was present, carried forward to the time of the subsequent police request for consent to search, when he was no longer present because of his previous arrest for the robbery.
In an opinion by Justice Alito, the Court affirmed the California Court of Appeals. Fernandez first argued that his absence should not be held against him since it occurred only because the police arrested him for the prior robbery. However, the Court found that since the decision to arrest Fernandez stemmed from his connection to the robbery, the police had probable cause for his arrest and acted reasonably when they removed him from the premises. Accordingly his position was no different than that of an occupant who was simply absent for some other unrelated reason.
Fernandez argued further that his refusal to consent remained in effect until he actually withdrew it. This argument was problematic since it could not be implemented absent a judicially established framework for defining the scope of the duration of such an objection to a consent search, and procedures necessary to register a continuing objection. In light of Randolph, situations such as the matter at bar were to be resolved in a more fluid manner that was based upon customary social usage rather than the formal rules that courts would have to create to implement Fernandez’s approach.
Finally, Fernandez asserted that in most situations where officers have probable cause to arrest absent objector, they also have probably cause to obtain a search warrant for the premises that the objector does not want them to enter. This argument was problematic because the consent of the occupant who is present justifies the search and eliminates the need for a warrant. Requiring officers to obtain a warrant where a warrantless search is independently justified would impose an undue burden on law enforcement.
Justices Ginsberg, Sotomayor and Kagan all dissented, finding that the police should have gotten a search warrant once they learned that Fernandez objected to the search.
There is something very troubling about this decision. It has an almost tortured feel to it. The Court seems to go to great – almost too great – lengths to structure a framework to support its findings and conclusions, while completely ignoring the fact that the police were aware at all relevant times that Fernandez objected to any search of the apartment, and that their awareness of his refusal continued during the time of the second request for consent to search. How the Court can ignore this simple and obvious fact is not completely clear.
This case is obviously problematic for defense counsel since it makes the task of suppressing items of evidence found during a consent search that much more difficult. Nevertheless, regardless of the difficulties created by consent searches (which are many), and if for no other reason than to be thorough, counsel should still obtain all of the facts and circumstances surrounding the search, rather than simply assume that the search is valid and the seized evidence cannot be suppressed.