Tuesday, April 22, 2014

SCOTUS: Randolph Does Not Apply When Person Objecting to the Search Not Physically Present

Fernandez v. California, No. 12-7822 (U.S. Feb. 25, 2014) (Majority: Alito, Roberts, Scalia, Kennedy, Thomas, Breyer; Concurrences: Scalia, Thomas; Dissent: Ginsburg, Sotomayor, Kagan)

This decision does not change the law in the Fifth Circuit.  See United States v. Cooke, 674 F.3d 491, 498 (5th Cir. 2012).  It describes Georgia v. Randolph, 547 U.S. 103 (2006) as a narrow exception to the rule that police officers may search jointly occupied premises if one of the occupants consents.  Under Randolph, consent of one occupant is insufficient when another occupant is present and objects to the search.  Fernandez holds that the person objecting to the search must be physically present; otherwise, Randolph does not apply.
In Fernandez, the police officers removed the objecting occupant by arresting him for suspected assault.  They later returned to the apartment and obtained consent from the remaining occupant (the abused woman) to search the premises is valid.  The Court interprets the dictum in Randolph that consent by one occupant might not be sufficient if “there is evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection” to only apply to removals that are not objectively reasonable.  The Court holds “that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason.” 
The Court also rejects Fernandez’s argument that his objection when he was physically present remained effective until he changed his mind and withdrew his objection.  The Court explains that this argument cannot be squared with widely shared social expectations or customary social usage on which Randolph relied.  The Court claims that it would also result in the “practical complications that Randolph sought to avoid,” by inviting other questions such as duration of the objection.
In his concurrence, Scalia addresses the Fourth Amendment argument under property law, finding that there was no violation because a guest of one tenant does not trespass simply because the other tenant forbids the guest from entering.  He also agrees with Thomas that Randolph was wrongly decided.
Thomas writes separately to “make clear the extent of [his] disagreement with Randolph.”  “[N]o Fourth Amendment search occurs where . . . the spouse of an accused voluntarily leads the police to potential evidence of wrongdoing by the accused.”
The dissent emphasizes the importance of the warrant requirement and drawing only narrow exceptions to it: “[T]he Framers saw the neutral magistrate as an essential part of the criminal process shielding all of us, good or bad, saint or sinner, from unchecked police activity.”  “Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it, nevermind ample time to secure the approval of a neutral magistrate.”
More analysis available on SCOTUSblog.com.

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