Fernandez v. California (4A) Orals

Issue: Whether, under Georgia v. Randolph, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of Fourth Amendment rights which cannot be overridden by a co-tenant.

The previous case (5-3, Breyer concurring) concerned a husband and wife being present at the premises, with no special circumstances, and there being a conflict on consent to entry that led to obtaining evidence.  Breyer concurred noting possible special circumstances warrants some sort of "totality of circumstances" rule.  The majority noted it was just deciding this case -- "a straightforward application of the rule that a physically present inhabitant's express refusal of consent to a police search is dispositive." It argued "customary social understanding" warrants not allowing a person in when there is a debate between the two co-tenants, even given the assumption a married couple would more than some others be able to speak for the other party. Stevens concurred as well, noting how social custom (e.g., men having veto power) change.

Here, opposition by a co-tenant was shown, but the police got around it because he was then arrested.  Hour later, they come back, get consent from the live-in girlfriend (and possible victim of domestic violence, who also generally might fear consenting in front of her  boyfriend).  These are not sympathetic facts, but not sympathetic to whom?  Me, I wonder why they cannot simply obtain a warrant -- they had an hour and by all lights had more time to get a warrant while the person was in custody.  There is also an exception for "exigent circumstances," if they had to enter to protect the girlfriend, perhaps, or because there was an ongoing crime.  Finally, it is not like the guy was in custody for a long time.  The question can be asked so broadly that it seems dubious -- as if someone in jail for over a year as trial is ongoing, no consent.  Though there a warrant seems pretty easy.

The state, however, set forth this rule:

JUSTICE GINSBURG: [I]f Fernandez left -- he's made known his objection and then he says I'm going to pick up something at the drugstore. The minute he leaves, can the police then say to his cohabitant, do you consent? She says, yes. Police come in?

MR. KARLIN: Yes, Your Honor, it would.  When a person leaves a residence, and this was the linchpin of Randolph, when a person leaves the residence, social expectations change, they change dramatically. You're not faced with the situation of pushing past someone who is saying "stay out."

I strenuously oppose someone coming in. I make my opinions known.  I step away for a minute.  Dramatic change!  Hey, come on in. Have a party.  Seriously?  The precedent does help, but admits to "formalism" and appeals to "practicality":

So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant's permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant's contrary indication when he expresses it.

Jeffrey Fisher, criminal defendant advocate voice extraordinaire, admitted upon questioning from Sotomayor that pretext is not shown here, and furthermore (a bit too far here) accepted that pretext is looked with disfavor by the USSC in Fourth Amendment cases. So might be true, inviting it, but Randolph specifically flags it. This bit of dictum is a problem, even if the reason he was absent was the government itself taking him away (a concern for a few justices).  It allows for a narrow ruling by let's say Kennedy (who joined Randolph) though it arguably violates the ruling's spirit.  There is no "occupant" here any more, but if an arrest can trump opposition, even from an hour before, there is room for abuse.  Still, we can see some value with that sort of line -- an arrest requires some degree of probable cause etc. too -- without Karlin's bit of silliness.  The proviso does answer Breyer's hypo where the police might by pretext (a phone call) get the person away from the house, which is totally likely to happen in some cases.  Such trickery is not unknown.

In the DNA case, Scalia noted that conviction could trump the right to avoid a search. The majority thought arrest did as applied.  This can be the rule here -- arrest might be a special situation.  However, the state actually noted an arrest doesn't waive privacy here.  The question is what rule should apply. The "the moment I leave" rule seems ridiculous, at the very least, when it is clearly known (here because the person said so an hour before!) that the person doesn't want entry.  There is "customary social understanding" on the point.  To my understanding.

Anyway, the case is likely to be decided on fairly narrow grounds, while providing a scenario that provides a good window into common sense application of constitutional principles.