In a 6-3 decision yesterday, the
United States Supreme Court gave police a green light to search residences without a warrant so long as they first arrest any occupant who objects to the search (and get consent from anyone remaining).
Now, that's not how you're going to read the synopsis when it appears in print. You will read something like what appeared in today's edition of the L.A. Times:
The Supreme Court ruled Tuesday that police officers may enter and search a home without a warrant as long as one occupant consents, even if another resident has previously objected.
Or like it appears on the
Reuters site
today:
The court held on a 6-3 vote that police can search a home without a warrant, even if the suspect has objected, as long as he is no longer on the scene and a co-tenant gives consent.
Or like the
ABA Journal puts it in
today's blog:
Cops may search home when suspect objects but girlfriend later consents, Supreme Court says.
The case is
Fernandez v. California, No. 12–7822, and it arose right here in the
City of Angels. In the context of
Fourth Amendment law, it resolved a question left unanswered by the 2006 case of
Georgia v. Randolph, 547 U. S. 103.
Randolph had established an exception to the general rule that any occupant of a home may consent to a search by police. The
Randolph case requires police to get a warrant, despite the consent of an occupant, if
any other occupant present objects to it.
Well, the LAPD found a creative way around the
Randolph exception. They just arrested the occupant who objected to the search and got consent from his estranged girlfriend who was then alone in the house. At that point, there was no longer "present" an objecting occupant of the home, so police argued the
Randolph exception no longer required them to get a warrant. And
six justices agreed.
My take? Fourth Amendment rights ought not depend on a person being physically present to assert them. If the police know a suspect has invoked his right to be free from the warrantless search of his home, they ought get a warrant to conduct a search. Pretty simple stuff really.
Some of you who follow this stuff may wonder why Justice Breyer sided with the more conservative justices yesterday. It's not really a surprise. Though he voted with the majority to require a warrant in Randolph, Justice Breyer wrote a concurring opinion, signaling back then that "[t]he Court's opinion does not apply where the objector is not present 'and object[ing].' ” I doubt that Justice Breyer intended that the police would create the objector's absence by arresting him, but such will doubtless be the result of this decision.