Opinion analysis: The Court narrowly limits a precedent allowing co-occupant objections to warrantless consent searches
on Feb 25, 2014 at 5:43 pm
Unsurprisingly (see my post-argument analysis here), this morning the Court ruled in Fernandez v. California that Georgia v. Randolph is a “narrow exception” to the normal rule that “police officers may search jointly occupied premises” without a warrant “if one of the occupants consents.” In Randolph, by a vote of five to three, the Court held (over the Chief Justice’s vigorous dissent) that an objection to searching made by a “physically present” co-occupant must be honored, even if another occupant is consenting at the time. Today the Court made clear that its holding in Randolph “was limited to situations in which the objecting occupant is present.” Even when the objector has been removed by police, if the removal is made for “objectively reasonable” reasons, then a consenting co-occupant provides sufficient authority to search.
The voting line-up
Today’s six-to-three majority was written by Justice Alito (who was not on the Court for Randolph) and joined by Justice Breyer (whose vote for the defendant in Randolph was “decisive,” as today’s opinion notes). Justice Scalia explains in his concurrence that there is also “no difficulty” under his recent property-based views (for example, Florida v. Jardines), because there is no clear common law authority giving one co-tenant absolute authority to block access over another co-tenant’s consent; and Justice Thomas filed a concurring opinion to “make clear the extent of [his] disagreement with Randolph.” Justice Ginsburg’s dissent, joined by Justices Sotomayor and Kagan, gamely advances the not-informidable arguments in favor of search warrants over exceptions, but the majority’s apparent antipathy (save for Justice Breyer) toward Randolph leaves that decision “diminished” and “shr[u]nk[en] to petite size.”
The essential facts
The Court’s opinion rehearses in some detail events that led the police to Fernandez’s apartment after a violent gang-related robbery and upon hearing “screaming and fighting coming from” inside. His girlfriend (Rojas) having opened the apartment door, Fernandez objected to any police search, standing on his doorstep and saying “I know my rights.” Not well enough, it turns out. Rojas was holding an infant and showed signs of bruises, so the police promptly removed Fernandez and arrested him on suspicion of domestic abuse as well as the knife-wielding robbery. When the police returned an hour later, Rojas gave consent for the police to search the apartment, and the trial court later found that consent to be voluntary. (Justice Ginsburg’s dissent says that there is “cause to doubt” the voluntary nature of her consent, and the facts are somewhat unsavory, with Rojas claiming the officers threatened to take her children.) Because Fernandez was no longer “physically present” and his removal was “objectively reasonable,” the Court ruled that Rojas’s consent to search the jointly occupied premises was valid, even though Fernandez had earlier made his objection clear.
The majority opinion
Justice Alito’s fifteen-page opinion is straightforward. The rule that jointly occupied premises may be searched on the consent of one tenant was “firmly establish[ed]” in Matlock, even though Matlock (the other co-tenant) had just been arrested and was nearby in a place where “the police could have easily asked him for consent.” Similarly, in Illinois v. Rodriguez, although police could have awakened the tenant (Rodriguez) who was sleeping inside, they instead validly relied on the consent of an apparent co-tenant (who later turned out to actually lack co-tenant authority). Because search warrants, “even with modern technological advances,” nevertheless “impose burdens” on “everyone involved” – police, magistrates, and the consenting co-occupant as well – the Court holds that a consent search is reasonable and not to be unnecessarily denied. While Justice Ginsburg contends that “this declaration has it backwards” – exceptions to the warrant requirement, including consent, should be “jealously and carefully drawn” – her disagreement goes directly to the deepest theories of the Fourth Amendment which have been driving the Court’s jurisprudence, and disagreements, in this area for over a century. The Court today is driven not by a warrant “requirement” but rather the amendment’s general “reasonableness” clause.
An aside on domestic violence
Although the Court does not note it explicitly, in all four of the leading co-occupant consent cases (Matlock, Rodriguez, Randolph, and Fernandez), the co-occupants had some intimate relationship and the male was suspected of crime while the female’s consent was sought. As Justice Ginsburg notes, “the specter of domestic abuse” hangs over these cases — which was in fact the basis for the Chief Justice’s dissent in Randolph. But Justice Ginsburg, while expressing her longstanding concerns about domestic abuse, emphasizes that such concerns “hardly necessitate … diminution of … Fourth Amendment rights,” and that “exigent circumstances” in such cases will usually allow an immediate search. The Court’s majority, however, counters that any other rule would “show disrespect for [the female co-occupant’s] independence,” and correctly notes that the Court’s opinion in Randolph “went to great lengths” to make clear its limitation to physically present objectors.
A dictum in Randolph is clarified.
As today’s opinion candidly notes, a dictum in Randolph suggested that a co-occupant’s consent might not suffice if police removed an objector “for the sake of avoiding possible objection.” The majority notes, however, that the Court has generally rejected subjective motive inquiries. So, the Court explains, Randolph’s “dictum is best understood” to refer only to situations “in which the removal of the potential objector is not objectively reasonable.” Because the objectively reasonable basis for Fernandez’s removal here was not contested, his case does not fall within this reading. I would also note that, perhaps as importantly, the dictum in Randolph is not rejected, but rather left for possible application in future cases showing such “improper motive.” See, for example, Missouri v. Siebert in the Fifth Amendment context (condemning an improper motive to circumvent Miranda).
The balance of interpretive practical problems
The Court’s opinion finally explains the “plethora of practical problems” that would arise if Fernandez’s objection were ruled to persist even after he is fairly removed from the scene. How long would his objection last? How long would his “common authority” last? The length of a fifteen-year imprisonment sentence? Could objections be registered in advance by criminal co-tenants? While also noting that the “outer boundaries” of Randolph’s remaining “physically present” rule remain undefined, the majority concludes that the balance of interpretive problems tilts strongly in favor of limiting Randolph to “physically present” circumstances. This is the majority’s only response – rather than an explicit discussion – to Justice Ginsburg’s own questions: does Randolph cease to apply if “the objector leaves the door to retire for a nap, answer the phone, use the bathroom, or speak to another officer outside?” But by noting that the Court just last Term adopted a “near the premises” rule for detaining individuals at the scene of a search, the majority not only suggests a reasonable application of the remaining Randolph rule, but also secures the vote of Justice Kennedy, who authored that 2013 Bailey opinion.
In the end, the practicalities of today’s ruling seem limited, because Justice Ginsburg is correct in noting that in most cases we care about, police will have either an exigency that permits immediate warrantless entry or probable cause that allows them to quickly obtain a warrant. Just last Term, in Missouri v. McNeely, the Chief Justice noted that “e-warrants” can be obtained in fifteen minutes or less. Thus, today’s decision is unlikely to make large waves in the deep ocean of Fourth Amendment caselaw. The larger battles, however (excuse my mixed metaphors), have yet to be fought. Cellphone searches and NSA surveillance remain to be explored. Today’s opinion provides little signal as to the Justices’ views in these broader arenas.
“Plain English” summary:
A home or apartment is often jointly occupied by more than one person. In the past, the Supreme Court has ruled that any one person who is a “joint occupant” can consent to a police search of the shared residence, without a search warrant. But in 2006, the Court ruled that when co-occupants are on the doorstep and they disagree about whether to let the police search, the police can’t go in if a “physically present” co-occupant objects.
In the case decided today, one co-occupant (Fernandez) was present and objected to a police search, but the police removed him from the scene because it appeared he had just battered his girlfriend (and also taken part in a violent robbery). When the police came back an hour later to ask the girlfriend for consent to search the apartment, she gave it. By a vote of six to three, the Court ruled that the search which followed did not violate the Constitution, because Fernandez was no long physically there and had been removed for fair reasons. Respect for the girlfriend’s independent voluntary consent requires that it be honored.
Three Justices dissented, arguing that the girlfriend had been pressured into consenting, and that police should have gotten a search warrant once they knew Fernandez objected to the search. Such dissents are not unusual, but the majority opinion sets the legal rule for this case.
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.