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Argument recap: Court seems poised to limit Georgia v. Randolph to “physically present” co-tenants

When co-tenants jointly occupy a residence, the Court long ago held in Matlock (1974) that any one of the co-tenants can consent to a police search of the entire property.  But in Georgia v. Randolph in 2006, a five-to-three Court held that if two co-tenants are “physically present” when the police ask for consent, and one expressly objects while the other consents, the police must honor the objection and not enter the residence absent some other exception to the normal warrant requirement.  Yesterday’s argument in Fernandez v. California presented follow-up questions about how far Randolph goes, or possibly whether it should be overruled.

Factual background

To briefly recap the facts: the police suspected that petitioner Walter Fernandez was the stabber in a violent gang robbery.  Upon arriving at Fernandez’s building, the police heard male and female voices “yelling and screaming” from Fernandez’s apartment.  When Roxanne Rojas, Fernandez’s live-in girlfriend, opened the apartment door to the officers’ knock, she appeared to be freshly bruised and bloody and was holding an infant.  An officer spied Fernandez inside, but Fernandez said “Get out.  I know my rights. You can’t come in.”

The police, however, instead took Fernandez into custody, for safety reasons and on suspicion of domestic violence (which soon evolved to also encompass the robbery charges).  About an hour later, the police returned and obtained Rojas’s consent to search the apartment, which they then did for evidence of the robbery charge.  Items that they found during that search were later used to convict Fernandez.  The case apparently now proceeds on the theory (1) that when the police returned there was no exigent need to search (because an exigency would have permitted them to enter and search under Kentucky v. King), and (2) that the officers did not have probable cause to seek a warrant (because probable cause in the absence of exigency would normally require a warrant).

So the question before the Court yesterday was whether Randolph should be limited to its precise holding, so that only a “physically present” co-tenant can block police entry over a co-tenant’s consent.  Or should Randolph’s “logic” be extended to allow a physically present co-tenant’s objection to continue to control even after the objector has been lawfully removed by the police?

The oral arguments

A majority of the Justices were clearly troubled by the prospect of extending Randolph to these facts.  Justice Breyer, whose concurring opinion (and fifth vote) in Randolph expressly noted that “were the circumstances to change significantly, so should the result,” began by telling Fernandez’s lawyer Jeffrey Fisher that the case is “bothering me” – “can [the co-tenant] never invite the policeman in?”  Justice Kennedy, also part of the five Justice majority in Randolph, soon echoed this concern, telling Fisher that he was asking “for a vast extension of Randolph.”  Justice Alito, who noted that he “wasn’t there for Randolph,” indicated that he “d[id]n’t understand” why joint tenancy “is not the end of the analysis.”  Justice Scalia noted that “one doesn’t have to overrule [Randolph] to say we’re not going to follow it to its logical conclusion.”  And the Chief Justice, who vigorously dissented in Randolph on the basis of Matlock, quickly suggested that, in fact, no “logical conclusion” of Randolph would require the Court to adopt Fernandez’s rule.  Assuming that Justice Thomas sticks to his dissenting position in Randolph (although his dissent rested on a different ground), there appeared to be five or six votes to limit Randolph narrowly to its “fine line” protecting only “physically present” objectors.

Fisher gamely explained that his rule would not last forever, but only for as long as the police “make it impossible” for the objecting co-tenant to “enforce” his Randolph right.  And when Justices Breyer, Kennedy, and Alito and the Chief Justice all suggested that, in this case, there was evidence of “gang violence,” danger to children in the apartment, and a “crying and blood[y]” girlfriend, Fisher noted that the “exigent circumstances” doctrine would generally allow police an immediate entry.  Justice Breyer countered that this still did not address his concerns in a non-exigent situation in which “you had a little window of opportunity to find out what was going on in that house,” At which point Fisher indicated that the co-tenant could always bring evidence out of the residence to the police, or the police could freeze the scene and seek a warrant.

Louis Karlin of the California Attorney General’s office then had to field questions from the “other side” of the bench, as Justices Ginsburg, Sotomayor, and Kagan peppered him with their concerns.  The problem with the “physically present” boundary, Justices Sotomayor and Ginsburg noted, is that if the police can simply “remove” an objecting tenant from the scene, and then obtain consent from another co-tenant, then there is virtually “nothing left” of Randolph.  Justice Kagan added that she was particularly bothered because the police have powers of removal that private visitors lack.  And noting that “I still think I was right in Randolph,” Justice Breyer asked Karlin how he could “with a straight face” now rule that police can easily get around that decision merely by removing the objecting co-tenant.

Justices Kagan and Sotomayor asked Karlin (and Assistant to the Solicitor General Joseph Palmore, who appeared on behalf of the federal government as an amicus in support of the state) to concede that an arrestee’s expectation of privacy in his residence “does not decline” even though he’s been arrested; that Matlock does not control this case because there was no objecting co-tenant there; and that the police in this case wanted to conduct a “general search for evidence” unrelated to the initial domestic violence offense (thus silently invoking Arizona v. Gant’s limitation on car searches incident to arrest).  But even with all these concessions, Fernandez still appeared to have only four votes (at most) in his favor.  The other five Justices did not say a word during the state’s argument.  Perhaps sensing an adverse result, Justice Sotomayor finally suggested, tongue firmly in cheek, that she “would certainly recommend to every married couple now to have a prenuptial agreement on access rights.”

During Palmore’s argument, Justice Sotomayor appeared to express frustration:  “I don’t know why it’s so difficult for police officers to understand.  Your first obligation under the Fourth Amendment is to get a warrant.”  Palmore responded that such a view is “inconsistent with Kentucky v. King,” as the Chief Justice had earlier explained: the Court has recently noted that consent is “simpler, faster, and less burdensome” than the warrant process, and entirely legitimate if voluntary.

Justice Kennedy finally noted that “there’s just not a lot of help in property law” on the issue of co-tenant “rights” to consent to police entry.  Similarly, although Justice Scalia has clearly led a renewed focus on property rights — for example in last Term’s Jardines and the prior Term’s GPS tracking case — he had also noted in his Randolph dissent the absence of clear Framer-era law on the topic.  No one disputed Justice Kennedy’s characterization on this point.

During Fisher’s rebuttal, Justice Kennedy again appeared to express his hostility to Fernandez’s position; when Fisher tried to address his concerns, Kennedy fell silent after saying “I’m interrupting your rebuttal.”  Chief Justice Roberts noted that Randolph’s holding had been expressly narrow; and Justice Alito asked whether Fisher’s rule would not “express profound disrespect for the co-tenant” who wants the police to enter?  Fisher responded that saying “let us just get a warrant” is “not too disrespectful,” and ended by asking the Justices to “respect … the constitutional system under which we live.”


Certainly all the Justices respect our constitutional system — the difficulty facing the Court in this and other Fourth Amendment cases is how to apply the vague lawyer’s concept of “reasonableness” to specific factual situations.  In this particular case, the defendant’s bad facts appear to make a bad case for extending Randolph beyond its stated limits.  What will be interesting will be to see how broadly, or narrowly, the Chief Justice (who as the dissenter in Randolph is likely to keep the majority opinion here) will write.  It may also be interesting to see whether Justice Thomas will, as he did with his distinctly different dissent in Randolph, continue to express a separate view, although there would appear to be no need for him to do that to resolve this case.

[Disclosure:  Kevin Russell of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.  However, the author of this post is not affiliated with the firm or otherwise involved in the case.]

Recommended Citation: Rory Little, Argument recap: Court seems poised to limit Georgia v. Randolph to “physically present” co-tenants, SCOTUSblog (Nov. 14, 2013, 10:24 PM),