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Police handed additional power to conduct house searches without a warrant

Posted by Craig Penrod | Mar 09, 2014 | 0 Comments

The U.S. Supreme Court ruled, recently, that law enforcement officers are allowed to search a residence without first obtaining a warrant despite the objection of one occupant if that occupant has been removed from the premises.

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As the result of its 6-3 decision in Fernandez v. California, the high court ruled that law enforcement has the authority to conduct warrantless searches. The had restricted the powers of law enforcement with a decision in 2006 on a similar case.

In 2009, the Los Angeles Police Department, believed that Walter Fernandez had stabbed a person during a violent gang robbery. When law enforcement first arrived at the suspect's home, yelling and screaming could be heard prior to Roxanne Rojas, Fernandez's live-in girlfriend, answered the door of their shared residence. Rojas appeared to be “freshly bruised and bloody” and she was carrying an infant.

Law enforcement spotted Fernandez who said, “Get out. I know my rights. You can't come in.” Despite that statement, law enforcement officers arrested him on charges of domestic violence. After Fernandez had been removed from the residence, law enforcement officers asked Rojas for permission to conduct a search of the residence they shared. That search yielded evidence that implicated Fernandez in the violent gang-related robbery.

Justice Samuel Alito writing the majority's decision which justified the actions of law enforcement officers. “A warrantless consent search is reasonable and thus consistent with the Fourth Amendment irrespective of the availability of a warrant,” Justice Alito wrote. He added that “denying someone in Rojas' position the right to allow the police to enter her home would also show disrespect for her independence.”

Joining in the majority opinion were Justices Breyer, Kennedy, Roberts, Scalia and Thomas. Joining in the minority opinion by Justice Ruth Bader Ginsburg, were Justices Kagan and Sotomayor. The dissenting opinion called the decision a blow to the Fourth Amendment, which prohibits “unreasonable searches and seizures.”

“Instead of adhering to the warrant requirement,” Justice Ginsburg wrote, “today's decision tells the police they may dodge it, never mind ample time to secure the approval of a neutral magistrate.” She added that the ruling “shrinks to petite size our holding in Georgia v. Randolph.”

Georgia v. Randolph, addressed in 2006 by the Supreme Court, was a similar case in which a domestic violence suspect would not allow law enforcement officers to enter his residence, though his wife did offer law enforcement officers her consent and the police ultimately entered the home. The court ruled in Georgia v. Randolph that the man's refusal while being present in the home should have kept authorizes from entering. “A physically present inhabitant's express refusal of consent to a police search [of his home] is dispositive as to him, regardless of the consent of a fellow occupant,” the majority ruled in that case.

In addressing Randolph in the majority opinion, Justice Alito wrote that the difference between Georgia v. Randolph and Fernandez v. California was the physical presence of the suspect. “Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present,” he wrote. “We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared.”

Prior to Randolph and Fernandez, the court ruled in the 1974 case United States v. Matlock that any one of the co-tenants in a home can consent to a police search of the premises. Also, in 1978, the court had declared warrantless searches, in the main, "per se unreasonable" in the case of Mincey v. Arizona.

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About the Author

Craig Penrod

Craig W. Penrod was born and raised in Arizona and has practiced criminal defense for over 30 years. Mr. Penrod is a member of the State Bar of Arizona, Maricopa County Bar Association, State of Nevada Bar Association, American Bar Association, American Trial Lawyers Association, Arizona Trial Lawyers Association, Nevada Trial Lawyers Association, Arizona Attorneys for Criminal Justice and the National Association of Criminal Defense Lawyers.

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