by Ben Bullard
The Supreme Court ruled today that police, without a warrant, may legally enter and search a dwelling even over the vehement protestations of an occupant, so long as a co-occupant grants them access.
That decision reverses a 2006 ruling, which held that the refusal of even one occupant to allow a warrantless search was sufficient to keep law enforcement from entering a home.
Today’s ruling in Fernandez v. California was handed down in a 6-3 opinion, led by Justice Samuel Alito writing for the majority. The case involved an LAPD search of a house they believed harbored a robbery suspect. The suspect, Walter Fernandez, wouldn’t let them inside the house. But the police argued that Fernandez’ girlfriend, Roxanne Rojas, looked sketchy enough to suggest a probable cause for domestic violence – an unrelated charge. They went in and arrested Fernandez on the DV charge, removed him from the home, and in the meantime sought and got on-site permission from Rojas to search the home. That search produced evidence that tied Fernandez to the robbery – the reason the police had shown up in the first place.
Writing for the majority, Justice Samuel Alito argued that Rojas’ permission carried equal weight (really, greater weight) with that of Fernandez’ denial:
A warrantless consent search is reasonable and thus consistent with the Fourth Amendment irrespective of the availability of a warrant… Denying someone in Rojas’ position the right to allow the police to enter her home would also show disrespect for her independence.Compare Alito’s words with those of retired Justice David Souter, who wrote the majority opinion for a similar case – with a very different outcome – in November of 2006:
The pragmatic decision to accept the simplicity of this line is, moreover, supported by the substantial number of instances in which suspects who are asked for permission to search actually consent, albeit imprudently, a fact that undercuts any argument that the police should try to locate a suspected inhabitant because his denial of consent would be a foregone conclusion.It appears evident that the police got their man, and no one is bemoaning a travesty of justice for a man whom evidence suggests had committed a crime. But today’s ruling is a back-door way into people’s homes – one without a guarantee that law enforcement will always be in the right. It invites the police to escalate impromptu searches by keeping them persistent at a dwelling until they get what they came for. It creates an invitation to law enforcement to find someone – anyone – living in a home whom they can convince to grant them access, after first being explicitly refused access by another occupant.
This case invites a straightforward application of the rule that a physically present inhabitant’s express refusal of consent to a police search is dispositive [that is, settled and absolute] as to him, regardless of the consent of a fellow occupant.
Whereas Souter and the majority found, in 2006, that one refusal was enough to force police to demonstrate probable cause to search a home, Alito has invited the police to go fishing for the most gullible or legally naive resident who might be found at the premises. All they need is a “yes” – any “yes.”