Supreme Court Decision in Fernandez v. California Supports LEOs


The U.S. Supreme Court recently cleared up an uncertainty regarding consent searches of jointly held premises.  The Fourth Amendment prohibits unreasonable searches only.  Reasonable searches are permitted, but what is reasonable?  The courts have been toying with that concept for over two hundred years.

In February, the court handed down a 6-3 ruling which supports law enforcement and allows it to do its job and protect us.

If a person consents to being searched, or having his premises (home or car) searched, forcing the police to get a warrant would “needlessly inconvenience” everyone involved—not only the officers and the magistrate, but the occupant who would have to wait for the warrant (in a effort to remove any suspicion he feels is unwarranted and will be dispelled once a search is completed).

Consent searches of joint premises were first authorized in U.S. v Matlock, a 1974 case.  Bill Matlock was arrested for robbing a bank.  As he was outside the house he shared with his girlfriend and several of her siblings, she was asked for permission to search the house for proceeds of the bank robbery.  She agreed, and in a bedroom she shared with Matlock, the stolen money was found in a diaper bag in the closet.  Matlock was not asked for permission.

The court ruled that “any occupant of the house, having joint access or control,   has the right to permit the search in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. But what if Matlock had objected?

That questioned was answered in 2006 by Georgia v Randolph. Randolph was your basic domestic. While wife Janet called the cops, husband Scott Randolph went to a neighbor. Janet told the police that Scott was a cocaine user and that was the cause of their problems.  Scott returned as this was occurring and advised that Janet was the drug user.  Sgt. Murray of the Americus Georgia Police Department asked Scott for permission to search for the drugs.  Scott refused.  Janet agreed to a search and took the sergeant to an upstairs bedroom where the customary straws and white powder were seen.  Scott then went to jail.

After Scott’s indictment, he moved to suppress the evidence of the search as his refusal should outweigh that of his wife.  Finally the case reached the Supremes.  They upheld the ruling in Matlock, but decided that when a co-tenant is physically present and expressly refuses to consent, that refusal is dispositive as to him.  That means if he’s the one going to jail, he can overrule her.

There was no evidence of a need to do a protective search or any exigent circumstances requiring an immediate search.  These factors, if present, could change the outcome.

This brings us to Fernandez v California. The Matlock court was faced with an absent joint tenant who did not object to the co-tenant’s giving of consent.  The Randolph court had a present and objecting co-tenant.  Fernandez had a bit of each.

After observing aman cash a check, Walter Fernandez and 4 of his gang banger buddies attacked him.  The victim was cut with a knife and was robbed of his cell phone and wallet containing $400 in cash.  Responding police officers, after being directed by a citizen, saw a man run into a nearby building.  As the officers approached the building they heard sounds of “screaming and fighting.”

This brings us to Fernandez v. California. LAPD’s Detective Clark and Officer Cerrito approached a door and knocked. Roxanne Rojas answered and showed the classic signs of being the victim of a recent domestic battery.

She was crying, her face was red, and she had a large bump on her nose. There was blood on her shirt and hand which appeared fresh.  Rojas said she had been in a fight.

As the officers asked her to step out so they could conduct a protective search, Fernandez appeared at the door only wearing boxers. He announced, “You don’t have any right to come in here. I know my rights.”

Suspecting that Fernandez was the batterer, police placed him under arrest.  Later the victim of the street robbery identified him as one of his attackers and that charge was added.

About an hour later, the police returned to the apartment and obtained both oral and written consent from Rojas to search the premises.  Inside was found gang paraphernalia, a butterfly knife, clothing worn by the robbery suspect and ammunition.  They also found a sawed off shotgun.

In reviewing Matlock and Randolph, the Supreme Court held that Randolph created a very narrow exception to the rule of one-party consent.  Randolph was present and objecting. Fernandez was long since gone.

Fernandez’s position was that he was only gone as the cops had taken him away.  As his arrest was lawful, and not a pretext to remove him so he could not object, the court found his absence should be treated the same as any other co-occupant who is not present.

What about his initial objection to the search? The court cited to social norms to deal with that issue.  If a social guest came to visit one occupant of a house and another objected to his presence, he would likely leave and return later, when the objector would likely not be present.  Search valid.  Fourteen year sentence upheld. Another bad guy off the street.

So what is the rule from these cases?

Consent is valid if obtained from someone with the authority to give it, and no co-occupant is present and objecting.

If the police have removed the objecting co-occupant, the removal must be objectively (clear on its face) reasonable, such as a valid arrest.

You can’t remove him to prevent an objection, but you can do your job.  And just like a traffic stop, the court won’t go into your mind and ask why you did the stop. If there is PC to support the stop, or arrest, or a valid reason for another removal, he is deemed not present and you don’t need his consent.

What if it’s a location that has numerous joint tenants?  Do you have to search them all out and receive everyone’s consent?  Just think of Fernandez, sitting in jail.  If you’re not there, no need to inquire.

David M. Waksman, J.D., is a nationally known former homicide prosecutor with vast experience in trying violent offenders and a former sergeant with the NYPD. He served for 35 years with the Miami-Dade (Fla.) State Attorney’s Office, primarily in the Major Crimes Division. He teaches Case Preparation and Courtroom Presentation, Police Involved Shootings, Injury and Death Investigation and Criminal Law at the Miami Dade College School of Justice, In-Service Training Unit and at various police departments in South Florida.  His specialty is Fourth and Fifth Amendment issues. He has tried almost 200 jury trials, including 79 for first-degree murder. He is the author of the Search and Seizure Handbook, 3/ed.  It was cited by the United States Supreme Court in Hudson v. Michigan, 547 U.S. 586 (2006), available from Prentice Hall.

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