I know that a majority of my readers are lawyers, but there are a fair number of you who aren’t and so from time to time I like to reproduce stirring pieces of legal opinions that explain so eloquently the protections that we have and the reasons we have them. The opening of Justice Ginsburg’s dissent yesterday in Fernandez v. California [PDF – pg 23 onwards] provides such an opportunity, so I reproduce a large quote from it:
The Fourth Amendment guarantees to the people “[t]he right … to be secure in their . . . houses . . . against unreasonable searches and seizures.” Warrants to search premises, the Amendment further instructs, shall issue only when authorized by a neutral magistrate upon a showing of “probable cause” to believe criminal activity has occurred or is afoot. This Court has read these complementary provisions to convey that, “whenever practicable, [the police must] obtain advance judicial approval of searches and seizures through the warrant procedure.” Terry v. Ohio, 392 U. S. 1, 20 (1968). The warrant requirement, Justice Jackson observed, ranks among the “fundamental distinctions between our form of government, where officers are under the law, and the police state where they are the law.” Johnson v. United States, 333 U. S. 10, 17 (1948). The Court has accordingly declared warrantless searches, in the main, “per se unreasonable.” Mincey v. Arizona, 437 U. S. 385, 390 (1978).
In its zeal to diminish Randolph, today’s decision overlooks the warrant requirement’s venerable role as the “bulwark of Fourth Amendment protection.” Franks v. Delaware, 438 U. S. 154, 164 (1978). Reducing Randolph to a “narrow exception,” the Court declares the main rule to be that “consent by one resident of jointly occupied premises is generally sufficient to justify a warrantless search.” Ante, at 7. That declaration has it backwards, for consent searches themselves are a “‘jealously and carefully drawn’ exception” to “the Fourth Amendment rule ordinarily prohibiting the warrantless entry of a person’s house as unreasonable per se.” Randolph, 547 U. S., at 109 (quoting Jones v. United States, 357 U. S. 493, 499 (1958)). See also Jardines, 569 U. S., at ___ (slip op., at 4) (“[W]hen it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’”); Payton v. New York, 445 U. S. 573, 585 (1980)(“[T]he physical entry of the home is the chief evil against which . . . the Fourth Amendment is directed.”
That should explain to you that in our country, under our system of laws, there is nothing more sacred than the right to be left alone in one’s home and that there is an almost absolute prohibition on the police entering your home without a warrant. One of the exceptions to that rule is if you consent. If you give the police permission to enter, then they don’t need a warrant.
The rule is quite clear when it comes to single occupants, but necessarily becomes a little more nuanced when there are co-tenants.
The Randolph cited above is Georgia v. Randolph, a 2006 case in which the Supreme Court held that if there are two tenants to a residence and one consents but the other is “physically present and objects”, then there is no valid consent. The thrust of their rationale was that you, by virtue of being my roommate, should not have greater power to override my refusal to the police.
Many observers and people with a still-functioning brain cell had the thought that this rule, while great, had the potential for a pretty simple workaround: simply remove the person who’s objecting.
And yesterday, in Fernandez v. California, that’s just what a 6-3 all male majority [NYT] of the Supreme Court ruled: that if one party objects, but then is no longer at the scene, then the other party’s consent rules.
In other words, the police can simply remove the objecting resident from the scene by arresting him or her (let’s be honest: him) and then going back to the other party and saying “hey how about that consent again” and now they don’t need a judge to sign off on a warrant. And do you think the tenant who didn’t get arrested will look at what just happened to the guy who did and steer herself in the direction of the “correct” answer? As the testimony in Fernandez shows, the girlfriend in that case may not really have wanted to consent to the search in any case. From the NYT article I linked to above: Ms. Rojas testified she gave only after the police started interviewing her 4-year-old son without her permission and threatened to take her children from her. She didn’t want to sign the form, she told the trial court, but did so because she “just wanted it to just end.”
In fact, there is nothing in the Supreme Court’s opinion that states that the arrest has to be a valid or legal arrest or even based on actual probable cause: the opinion states that the removal merely has to be “objectively reasonable” – that is, reasonable as viewed by an objective person, after the fact. Who is that objective person? Usually a judge who is now presiding over the case which has gotten a lot stronger against the defendant based on the evidence they obtained from his residence after that search. Do you think any judge is going to say that the “removal” wasn’t “objectively reasonable”? No. The answer is no.
To further complicate matters, the remedy for an illegal arrest in not dismissal of the charges, but merely suppression of any statement or evidence obtained as a result of the arrest. But that doesn’t necessarily mean that if any judge were to somehow say that “removal” was not “objectively reasonable”, that the tenant’s at the time valid consent wouldn’t be an intervening factor that would not require suppression of any evidence.
Justice Alito’s majority opinion makes a lot of the inconvenience of requiring a warrant at that stage and it manufactures a lot of ‘concerns’ with Fernandez’ position, but Justice Ginsburg does a brilliant job of rebutting all of those.
It makes no sense, for example, that merely by not being physically present at the location of the search that a person with equal rights to the property cannot object with the same legal force that he could if he were physically present.
In other words, say the police wanted to search your house. You are at work and your wife is at home. They don’t have a warrant; in fact, they have absolutely no reason to believe that you’ve committed any crime whatsoever and just want to fish around. They ring the doorbell and ask your wife if they can come in. She demurs and calls you on the phone. You, knowing that you’ve stashed 40,000 kilos of pure Colombian cocaine in the basement, vehemently object and start driving over to your house, a distance of 2 miles. But your wife, the honest woman that she is, says sure, come in. You’re on the phone yelling to the cops “Don’t go in! I don’t consent! I’m on my way there!” but they merely hang up the phone and go find your recreation room.
Why should that situation be any different than if you were at home with your wife when they rang the doorbell? Why should it be any different than if you were at home, said no, then they arrested you because you seemed suspicious because only guilty people don’t let officers enter their home?
It seems as though the majority of the Justices are saying that if a tree falls in the forest and no one is around to hear it, then it doesn’t actually fall at all. Or, in terms slightly more understandable to them: if you stick your finger in your ear and scream really loudly, then the guy talking to you really isn’t there because you can’t hear him, so you win. Pbbbbbt.
The leeway that this gives officers to “search now, validate later” is tremendous. All they have to do is drum up some reason to remove the objector from the scene and out goes the Fourth Amendment.
So I guess the moral of the story is that you should have a written agreement with whomever you room that they shall under no circumstances give the police consent to enter. Then make sure you don’t piss them off.
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