Court to decide if co-tenant can consent to search after suspect’s objection

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The U.S. Supreme Court has agreed to decide whether a tenant who previously objected to a warrantless search of an apartment must be personally present and objecting to prevent a search when police officers later ask a co-tenant for consent to search.

The case gives the court the occasion to examine the scope of Georgia v. Randolph. In that 2006 decision, the court held that police officers may not conduct a warrantless search of a home over the express refusal of consent by a physically present resident, even if another resident consents to a search.

The case the court agreed to hear is Fernandez v. California. In October 2009, Los Angeles police investigating an armed robbery tracked the defendant, Walter Fernandez, to his apartment. According to police, they knocked on the door when they heard screaming coming from the apartment. Fernandez’s girlfriend answered the door. Because it appeared that the girlfriend had been involved in a fight, police asked her if they could enter and conduct a sweep of the apartment.

At that moment, Fernandez allegedly stepped forward and said, “You don’t have any right to come in here. I know my rights.”

After removing Fernandez from the scene, one officer went back to the girlfriend, told her that Fernandez had been identified as a robbery suspect, and asked for her consent to search the apartment. The girlfriend gave her consent.

Incriminating evidence found in the ensuing search was used to convict Fernandez of second-degree robbery and willful infliction of corporal injury on a cohabitant. The trial judge sentenced Fernandez to 14 years in prison.

On appeal, Fernandez argued that the search of his apartment violated the Fourth Amendment under Randolph.

But a unanimous three-judge panel of the California Court of Appeal found that the consent given by Fernandez’s girlfriend was valid.

“[Fernandez’s] absence from the home when [his girlfriend] consented to a search of the apartment is, we believe, determinative,” the Court of Appeal said. “Randolph did not overturn prior cases holding that a co-inhabitant may give effective consent to search a shared residence; to the contrary, the Randolph court explicitly affirmed the vitality of those cases. … [T]he Randolph court distinguished between cases in which a defendant was present and objected to a search, on the one hand, and cases in which a defendant was not present and therefore could not object to a search, on the other.”

The Supreme Court is expected to decide the case next term.

Lawyers USA is a sister publication of The Daily Record.