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Five thoughts on Fernandez v. California

Yesterday morning, the Supreme Court decided Fernandez v. California, a Fourth Amendment case on third-party consent.  My colleague Rory Little explained the facts and reasoning of Fernandez here.  In this post, I’ll offer some commentary on the decision. Here are five reactions:

(1) After Fernandez, it’s pretty easy for the police to get around Georgia v. Randolph. Officers can just ask for consent when the target is not present.  But this isn’t a major change in the law. The majority opinion in Fernandez largely reaffirms the narrow interpretation of Randolph adopted by lower courts in the years following Randolph.

(2) Fernandez says that “presence” is the key to triggering Randolph, but I wonder what that means.  Does the requirement of presence mean present at the door, or does it mean present on or near the premises?   Some parts of the Fernandez majority opinion appear to mean presence in the sense of physical presence at the door – for example:

  • “It seems obvious that the calculus of this hypothetical caller would likely be quite different if the objecting tenant was not standing at the door.”
  • “If Randolph is taken at its word — that it applies only when the objector is standing in the door saying ‘stay out’ when officers propose to make a consent search — all of these problems disappear.”

Other parts of the opinion appear to mean presence in the sense of on or near the premises. – for example, when the Court “acknowledge[s] that if, as we conclude, Randolph requires presence on the premises to be searched, there may be cases in which the outer boundary of the premises is disputed. . . . Having held that a premises rule is workable in [Bailey v. United States] we see no ground for reaching a different conclusion here.”

Which is it, presence at the door or presence on the premises?  It’s at least possible that it’s a bit of both.  Specifically, perhaps the initial objection has to be at the door, and then the objection lasts as long as the defendant is on the premises.  Reading over the opinion, I’m not sure.  Either way, it would seem to make a difference at least in some cases.  Imagine the objector tells the police to buzz off, and the police then wait five minutes and ring the doorbell again. The consenting occupant answers the door, and the officers ask again while the objector is elsewhere in the house (perhaps in the bathroom or taking a nap).  Can the police search the house then?  And if so, what happens if the objecting occupant realizes what is happening and objects again — is he “present” again for purposes of the Randolph rule if he is present where the search is occurring?

(3) Score one for consistency: Justice Alito’s test for when officers can remove a objector to trigger the usual common authority test of United States v. Matlock reminds me a lot of his test for police-created exigent circumstances in Kentucky v. King.  In King, Justice Alito wrote for the Court that the police can rely on reactions to their conduct to generate exigent circumstances as long as the officers did not themselves violate the Fourth Amendment or threaten to violate the Fourth Amendment.  Similarly, in Fernandez, Justice Alito writes for the Court that the police can rely on the Matlock common authority test so long as the police did not violate the Fourth Amendment in removing the objector.

(4) On the other hand, I was struck by how differently Justice Alito deals with the time element in Fernandez as compared to how he dealt with a similar problem in his concurring opinion in the recent Fourth Amendment GPS case, United States v. Jones.  In Jones, the government had installed a GPS device on the suspect’s car and monitored it for twenty-eight days.  Justice Alito argued that the installation of the GPS device and short-term monitoring was not a Fourth Amendment search, but that at some point in time, the monitoring became a search.  In his concurring opinion in Jones, Justice Alito was unsympathetic to the very complex problems created by a time-based approach to identifying when the government conduct is a search:

R]elatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. . . . In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant.

In Fernandez, Justice Alito sounds a very different note about time-limited Fourth Amendment tests.  Fernandez argued that objecting to a search has legal force for a reasonable period of time even if the defendant is not present.  Justice Alito responds: “It is certainly unusual for this Court to set forth precise time limits governing police action, and what interval of time would be reasonable in this context? A week? A month? A year? Ten years?”  He then spends a full page of the slip opinion pointing out the complex problems such a rule might create.  In response to Fernandez’s argument that the government can always seek a warrant to deal with these ambiguities, Justice Alito responds that warrants “impose[] burdens on the officers who wish to search, the magistrate who must review the warrant application, and the party willing to give consent.”

Of course, Jones and Fernandez are two different cases.  Still, it was interesting to see how differently Justice Alito dealt with the time element in the two cases.

(5) Speaking of Jones, Justice Scalia brings it up yet again in his Fernandez concurrence.  And there’s an interesting nugget here, too.  I have previously noted the uncertainty over whether the Jones test is a trespass test or physical intrusion test.  Given that, it’s perhaps noteworthy that Justice Scalia focuses his Jones discussion on trespass law:

I would . . .  find this a more difficult case if it were established that property law did not give petitioner’s cotenant the right to admit visitors over petitioner’s objection. That difficulty does not arise, however, because the authorities cited by the amicus association fail to establish that a guest would commit a trespass if one of two joint tenants invited the guest to enter and the other tenant forbade the guest to do so. Indeed, what limited authority there is on the subject points to the opposite conclusion. See, e.g., 86 C.J.S., Tenancy in Common § 144, p. 354 (2006) (a licensee of one tenant “is not liable in trespass to nonconsenting cotenants”) . . . .

So in the continuing Jones as-trespass vs. Jones-as-physical-intrusion debate, let’s count this as one for trespass (whatever precisely that may mean).  At the same time, note that Justice Scalia’s Fernandez opinion speaks only for him rather for the entire Court.

Disclosure: Kevin Russell, of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among counsel to the petitioner in this case. 

Recommended Citation: Orin Kerr, Five thoughts on Fernandez v. California, SCOTUSblog (Feb. 26, 2014, 2:00 PM),