“He was walking out of the housing project and I went up to him to see what was up with him.”  So began the officer’s testimony early in my career in the Richmond, Kentucky Public Defender’s Office.  The testimony was at the preliminary hearing.  You know the rest.  I probed to get at the white officer’s motivation for just walking up to a guy walking out of the housing project he just visited.  My client, a young African-American was committing no crime.  I wanted to know why the officer stopped my client, and why eventually he reached into my client’s pockets.  Everyone in the courtroom knew the answer to my questions, and most everyone pretended the officer wasn’t lying.  My client and I knew otherwise. 

Fernandez v. United States.  I thought of that early experience when I read the recent US Supreme Court case of Fernandez v. US, decided on February 25th.  The case was not about officer motivation but rather consent.  It revisited a question left open in Georgia v. Randolph, 547 U.S. 103 (2006), which had created an exception to the rule in U.S. v. Matlock, 415 U.S. 146 (1974).  Matlock had said that the police may search a jointly occupied place if one of the occupant consents.  Randolph said that consent does not count if the joint occupant is present and objects.  But what happens if the objecting joint occupant is not present at the time of consent? And what if he’s not present because the police have taken him out of the residence and arrested him?  And is it important that they don’t get a warrant?  

This case arose in LA when police investigated a robbery, and went to an apartment complex where they heard screaming.  Roxanne Rojas answered the door and said she had been in a fight.  Fernandez came to the door and said that the officers had no right to come in.  But the police believed Fernandez had assaulted Rojas and detained him.  When he was identified as having been involved earlier in the robbery, he was arrested and taken to jail.  Rather than getting a warrant, the officers instead went back to Rojas’ apartment.  Rojas allowed officers into the apartment, where evidence of the Fernandez’ involvement in the robbery and other crimes was found.  The trial court and California appellate courts all agreed that the search and seizure were legal, justifiable based upon Rojas’ consent to search the apartment.  The US Supreme Court granted cert. 

Justice Alito wrote the 6-3 opinion affirming the California Supreme Court.  The Court declined to extend Randolph to situations where the objecting co-occupant is no longer present.  The holding?  “[A]n 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.”  

But what about the officer’s motive?  Once Fernandez objected, did the officers decide to arrest him to get him out of the apartment in order to get consent from Rojas?  Is that important?  Previously, at least according to Justice Roberts’ dissent in Georgia v. Randolph, motive had been important.  “To determine whether entry and search are reasonable, the majority considers a police officer's subjective motive in asking for consent, which we have otherwise refrained from doing in assessing Fourth Amendment questions.” 

This time around, Justice Alito sloughed off officers’ possible motive. He explicitly rejected Fernandez’ contention that Rojas’ consent should not permit the officers to enter when the officers had secured his absence by arresting him.  Alito notes that Randolph had implied “in dictum 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.’"  Rather than looking into the officers’ motive for removing Fernandez, the Court uses a reasonableness test, saying the “Randolph dictum is best understood not to require an inquiry into the subjective intent of officers who detain or arrest a potential objector but instead to refer to situations in which the removal of the potential objector is not objectively reasonable.” 

Aren’t warrants mandatory with limited exceptions?  Why didn’t the officers use the opportunity after Fernandez was arrested to obtain a warrant?  Didn’t we all learn in law school that the warrantless entry of a person’s house is per se unreasonable?  See Payton v. New York, 445 U.S. 573 (1980). 

Instead of upholding the warrant requirement, Alito seems at most tepid about it. Alito seems not to agree that a warrant is a default requirement and that searches are assumed illegal unless an exception is proven.  Instead he notes that “our cases establish that a warrant is generally required for a search of a home” all the while emphasizing that “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.”’”  “[t]he warrant procedure imposes burdens on the officers who wish to search, the magistrate who must review the warrant application, and the party willing to give consent. When a warrantless search is justified, requiring the police to obtain a warrant may ‘unjustifiably interfer[e] with legitimate law enforcement strategies.’"

The dissenters lamented the continued demise of the warrant requirement.  Justice Ginsburg dissented, joined by Justice Sotomayor and Kagan.  Her language is biting. “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… “In its zeal to diminish Randolph, today's decision overlooks the warrant requirement's venerable role as the "bulwark of Fourth Amendment protection."

Ginsburg saw through what Alito was doing.  “In this case, the police could readily have obtained a warrant to search the shared residence. The Court does not dispute this, but instead disparages the warrant requirement as inconvenient, burdensome, entailing delay…Although the police have probable cause and could obtain a warrant with dispatch, if they can gain the consent of someone other than the suspect, why should the law insist on the formality of a warrant? Because the 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.”

What’s love got to do with it?  Just as in Randolph, the back story for the opinion is that of domestic violence.  This time, protection of the domestic violence victim prevailed over the Fourth Amendment.  Alito said that “Denying someone in Rojas' position the right to allow the police to enter her home would also show disrespect for her independence. Having beaten Rojas, petitioner would bar her from controlling access to her own home until such time as he chose to relent. The Fourth Amendment does not give him that power.”

Justice Ginsburg, an ardent protector of women throughout her career, would have none of it. “If a person's health and safety are threatened by a domestic abuser, exigent circumstances would justify immediate removal of the abuser from the premises, as happened here. Cf. Randolph, 547 U. S., at 118 ("[T]his case has no bearing on the capacity of the police to protect domestic victims. . . . No question has been raised, or reasonably could be, about the authority of the police to enter a dwelling to protect a resident from domestic violence . . . .").”

We’re in a “Friends” world.  One last observation is in order.  We live in a world where families form and dissolve and reform, where roommates come and go, where temporary “families” are formed from Craigslist.  The Court, however, allows any of those living in an apartment to “consent” to a search for everyone there.