On November 13, the Court will hear oral argument in a Fourth Amendment case, Fernandez v. California, on the scope of the third-party consent doctrine. Fernandez isn’t the most important case on the Court’s docket. The Question Presented is narrow and the practical stakes are pretty small. But the case raises some interesting conceptual questions about constitutional criminal procedure doctrine, and I wanted to explain those issues in this post.

I. The Matlock and Randolph precedents

The basic issue raised in Fernandez is when the police can get someone’s consent to search a home for evidence of a co-tenant’s crimes. The facts of the case fall between the facts of two major precedents that neither party challenges. To understand Fernandez, then, we need to start with those two cases.

First, in United States v. Matlock (1974), the Court articulated the general rule that anyone who has “common authority” over the home can consent to a search of the home. In Matlock, the police arrested the defendant in his front yard and put him in a squad car. They then asked the woman with whom he lived to consent to a search of the home, and she agreed. The Court ruled that the police could rely on her consent because she had “common authority” over the home. In a critical footnote, the Court explained that common authority meant “mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” When you chose to live with someone and share space with them, the thinking goes, you generally assume the risk that she might consent to a search.

Matlock was then limited by Georgia v. Randolph (2006). In Randolph, a married couple was having a fight at their home, and the police were present. In an apparent effort to get her husband arrested, the wife told a police officer that her husband had evidence of drugs inside. The officer asked the husband if he would consent to a search of the home. He refused. The officer then asked the wife to consent to the search, and she agreed: She showed the officer the drugs over her husband’s objection, leading to charges against him. In a five-to-three decision by Justice Souter, the Court ruled that the officer could not rely on the wife’s consent when the objecting husband was present. Justice Souter’s majority opinion based its conclusion on “customary social usage [which has] a substantial bearing on Fourth Amendment reasonableness.”  If two people live in a home and one person invites you in while the other tells you to go away, Justice Souter reasoned, you’re not going to feel comfortable entering.  You’re going to figure that the two of them need to resolve their differences first, and that you should stay out. Distinguishing Matlock, Justice Souter recognized that he was “drawing a fine line.” “[I]f a potential defendant with self-interest in objecting is in fact at the door and objects,” he wrote, “the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.”

II. The facts of Fernandez

The facts of Fernandez fall somewhere between Matlock and Randolph. The police came to the defendant’s apartment based on reason to think that someone who had committed a gang-related assault had just entered. When they approached the apartment, the officers heard screaming and fighting inside. The officers knocked, the defendant’s girlfriend — who lived with the defendant in the apartment together with their children — answered the door. She was bruised and bloody. The defendant then approached the door, and the officers asked the defendant to step away from the door because they suspected he had just assaulted his girlfriend and they wanted to separate them. The defendant was angry and yelled at the officers, “You don’t have a right to come in here. I know my rights.” The officers then restrained the defendant out of concern that he had assaulted his girlfriend and walked him away from the entrance to the home. The officers soon realized that the defendant was the suspect in the gang-related assault and arrested him for that crime. About an hour later, the officers returned to the apartment and asked the girlfriend to consent to a search. She agreed, and the search of the apartment revealed evidence of the defendant’s crime. In this case, the defendant is challenging the lawfulness of the third-party consent.

III. Why I think the state should prevail

It’s not hard to predict the basic arguments in Fernandez. The government presents Matlock as the general standard and Randolph as the very narrow exception. This case is governed by Matlock, the government reasons, because the defendant wasn’t present when the officers relied on the girlfriend’s consent. In contrast, the defense presents Randolph as the reference point and argues that it governs here: The defendant is just like Randolph, the objecting tenant, and the government can’t benefit from the fact that it took the defendant away from the home and arrested him to get around his objection.

In my view, the government has the better argument. If we’re going to rely on a standard as mushy as social norms — which the cases seem to require, for better or worse — them it seems to me that the relevant norms surrounding permission and its absence are inherently time-bound. Randolph was based on the idea that a visitor who comes to a home and is told to stay out won’t feel comfortable entering at that time based on another occupant’s invitation to enter. But that doesn’t last forever. If I knock on someone’s door, and the person opens and tells me to go away, I will interpret that as meaning “please go away at this time.” I wouldn’t treat that as banning me from the home for all eternity, such that I may never come to that address ever again. Situations change. Someone might be busy, or in a bad mood. They might change their minds. Tenants come and go, living in places for a while and then moving. As a result, I wouldn’t think that any one tenant has the right to forever ban me from a home. If co-tenants are having a fight, and one wants me to come in and the other tells me to stay away, I’ll interpret that as a sign that I should come back when the objector isn’t there. I’ll interpret the objection as an objection to entering when the objector is there and obviously doesn’t want me around.

If I’m right about that, then Fernandez should be an easy case. The officers never asked anyone for consent until they returned to the apartment about an hour after the initial visit. By that time, the defendant had been arrested for the violent gang-related assault and presumably was in the station house for the time being. The defendant was out of the picture for a while, and the girlfriend was the only adult resident at the apartment. At that point, she had the right to consent to a search under Matlock.

The complication is that it was the police who made sure he was taken away. The officers physically removed the defendant, first taking him away from the apartment and then arresting him and bringing him to the station house. At first blush, it feels a little strange to allow the government to remove the defendant and then rely on his absence to allow the search. But I don’t think that’s a problem here. As I understand the record, there was no causal relationship between the defendant’s statement and his removal. He was removed from the scene because he had just hit his girlfriend, and then arrested because he had just committed a gang-related attack elsewhere. It had nothing to do with his statement. Even trying to figure out who caused the defendant’s removal is more complicated than it first seems. Did the police cause the defendant’s removal, or did the defendant cause his own removal by committing the offenses that reasonably led the police to remove and later arrest him? Either way, the lack of a causal relationship between the assertion of rights (which the parties take as equivalent to a denial of consent) and the removal from the scene seems to me to address this concern.

IV. The harder hypothetical

The harder case is what should happen if there is a causal relationship between the assertion of rights and the removal of the defendant. The Court doesn’t need to decide that, but it’s the more interesting hypothetical to ponder. Let’s say the cops ask for consent and the defendant says no but the girlfriend says yes. With the plan of circumventing the assertion of rights, the cops remove the defendant to get him out of the way so they can ask her again and rely on her consent the second time. Can they do that?

It’s a tricky question, I think. On one hand, it’s natural to rebel at the idea of the police trying to circumvent the assertion of the right. On the other hand, relying on an officer’s subjective intent is generally a no-no in Fourth Amendment law for a lot of good reasons, as Ashcroft v. Al-Kidd (2011) makes clear. One way out of that puzzle would be to fall back on Fourth Amendment doctrine. That is, you could say (with a nod to Kentucky v. King (2011)) that the police can take any steps so long as they don’t violate or threaten to violate the Fourth Amendment. If the police have probable cause to arrest the husband, they can arrest him and take him away even if they have a secret intent to get around his assertion of rights.

That rule might work, but there’s a catch. The police are usually pretty skilled at persuading people to follow them without triggering a Fourth Amendment seizure. Imagine a uniformed police officer is at your doorstep, and he says to you, “Sir/Miss, I’d like you to follow me to a safe place across the street.” A lot of people are going to agree to follow the officer because they’ll probably feel they have to comply. But courts would likely treat that request as neither a search nor a seizure, and therefore lawful even without any cause. Courts would probably interpret that as merely asking the person to voluntarily cross the street to the safe place. So relying on Fourth Amendment doctrine would still give the police a lot of room to ensure that the non-cooperating tenant is removed from the scene, giving them a way to circumvent the denial of consent.

I think the best way to deal with that problem would be to recognize the point I started with: Denials of consent are inherently time-bound. The denial of consent would be understood as a denial for at least some period of time. But the police could come back and ask for consent at some point later on, when circumstances had changed or there is reason to think the earlier judgment about consent may be revisited. I have in mind something like the standard for when the police are allowed to go back and ask a suspect to speak to them after he has asserted his right to silence. Under Michigan v. Mosley (1975), the police have to “fully respect” the assertion of the right to remain silent but can come back later when circumstances have changed and ask again. As applied to the Fourth Amendment setting, the rule might be that the police are allowed to remove the non-consenting tenant so long as they do not violate or threaten to violate the Fourth Amendment (King) and fully respect the assertion of rights (Mosley). I would think that approach would block the police from removing the non-consenting tenant and immediately asking the remaining tenant for consent.

My sense is that such an approach would reduce the incentive to circumvent the assertion while respecting social understandings and generally allowing the police to rely on existing Fourth Amendment doctrine. But it’s a somewhat complicated answer, and the Court doesn’t need to reach that level of detail based on the more straightforward facts of Fernandez.

Posted in Fernandez v. California, Featured, Merits Cases

Recommended Citation: Orin Kerr, Fernandez v. California and the problem of third-party consent, SCOTUSblog (Nov. 6, 2013, 9:08 AM), http://www.scotusblog.com/2013/11/fernandez-v-california-and-the-problem-of-third-party-consent/