Fourth Amendment - Search and Seizure - Conflicted Consent When the Objecting Tenant Is Absent

Harvard Law Review, November 2014 | Go to article overview

Fourth Amendment - Search and Seizure - Conflicted Consent When the Objecting Tenant Is Absent


The Supreme Court has long recognized that the Fourth Amendment allows a police officer to search a residence without a warrant if she obtains the consent of an occupant. (1) But in its 2006 decision, Georgia v. Randolph, (2) the Supreme Court held that a physically present tenant's objection to the police's entry overcomes his cotenant's consent and prevents a search. (3) The Court reached this conclusion based largely on an analysis of the social expectations that a civilian visitor would possess if she were welcomed in by one tenant but denied entry by another. (4) Last Term, in Fernandez v. California, (5) the Supreme Court considered a subsidiary issue: whether the tenant's objection overcomes his cotenant's consent when the objecting tenant is absent. (6) Relying once again upon social expectations analysis, (7) the Court held that it does not. (8) The Court's unpersuasive determination that social expectations supported the outcome further affirms criticism of social expectations analysis that the test is an imprecise way to assess the validity of conflicted grants of consent. (9) This criticism is justified, but the test also has value because it leaves the Court discretion to assess conflicted consent questions incrementally. Unlike a test that would provide clear answers to all questions of conflicted consent, such an incremental method of analysis allows the Court to avoid making a firm decision between privacy rights and law enforcement efficiency and thus permits the Court to strike a balance between the two across multiple decisions.

On October 12, 2009, after identifying himself as a member of a local gang, Walter Fernandez, along with a few compatriots, attacked and robbed Abel Lopez. (10) Responding to Lopez's 911 call, two police officers headed to an alley frequented by the local gang, where a bystander informed the officers that Fernandez was in a nearby apartment. (11) The officers then saw a person run into it, followed by sounds of fighting and screaming. (12) Knocking on the door, the officers were met by Roxanne Rojas. (13) Rojas--who was carrying a young child in her arms--displayed signs of recent injuries, including traces of blood, a red face, and a swollen nose. (14) Rojas said she had been in a fight, but that only she and her two children were present. (15)

The police asked Rojas to step out of the house so they could perform a protective sweep, at which point Fernandez appeared and told the police they could not enter. (16) The police arrested Fernandez on the suspicion that he had beaten Rojas, and Lopez shortly thereafter identified Fernandez as his attacker. (17) Fernandez was brought to the police station, and one hour later the police requested and received Rojas's consent to search the apartment. (18) Inside the apartment, the police found gang paraphernalia, a butterfly knife, clothing the suspect wore during the robbery, and ammunition. (19) Rojas's four-year-old son also showed the police where Fernandez hid a sawed-off shotgun. (20)

Fernandez was charged with several crimes, including possession of a firearm by a felon, possession of a short-barreled shotgun, and felony possession of ammunition. (21) Prior to his trial, Fernandez moved to suppress the evidence found in his home. (22) Denying the validity of the warrantless search, he contended that his objection to the police's entry trumped Rojas's subsequent consent. (23) The trial court denied the motion, and Fernandez appealed. (24)

The California Court of Appeals affirmed. (25) Siding with the majority of U.S. Courts of Appeals, the court concluded that a tenant's objection has no force if he is not present. (26) The court argued that its decision would provide clarity to law enforcement and that a contrary holding would stretch Randolph too far by allowing a tenant's objection to forever prevent his cotenant from validly consenting to a warrantless search. (27) The court further asserted that its holding was consistent with Randolph's social expectations analysis because an absent cotenant's objection would no longer carry the same social weight. …

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