The Supreme Court of the United States recently issued its decision in Fernandez v. California, holding that a denial of consent to search is invalidated once the person denying consent to search is no longer physically present. In Fernandez, the defendant, along with four others, robbed and beat of a man as he tried to flee and call 911. The police went to the defendant's apartment, wherein he was almost certainly physically abusing his significant other, and asked to search the house. Having likely seen Law & Order at least once in his life, the defendant denied the detectives the ability to search his apartment. This would have been a so-called consent search opposed to a warrant search which would require detectives proving to a magistrate probable cause to search the residence. Detectives removed the defendant from the house and arrested him. They then went back one hour later, asked the significant other for consent to search, which was granted both verbally and in writing, and then proceeded to find a treasure trove of incriminating evidence. Fernandez was convicted and sentenced to 14 years in jail.
The lynchpin of this case was whether the physical presence requirement for a search to be valid, under Georgia v. Randolph, which states that if one physically present occupant consents and one physically present occupant denies consent, applies once the denying occupant has left the dwelling. The Court ruled that once the person leaves, even if forcibly removed by police through his arrest, that his denial of consent to search is no longer in force. Personally, I think they got it very wrong and this could open a Pandora's Box of Fourth Amendment circumventing.
The first problem is that the Court sees a warrant as a burden to the police rather than as a protection to the defendant, as the Fourth Amendment intended. Civil liberties are about protecting the accused from an overbearing and significantly more powerful police force.
"Even with modern technological advances, the warrant procedure imposes burdens on the officers who wish to search," said Justice Alito.
That is precisely the point of a warrant. It is meant to the burden the police because they are a broad sword focused on arresting -- not prosecuting -- and any group that is firing 50 bullets at a guy eating a pear might need a little oversight about the nuances of due process and probable cause. Plus, if there was enough to arrest, there was more than likely not enough to get a search warrant, and with the defendant in custody, very little concern about evidence being destroyed.
Second, the Court focused on the rights of the other occupant, in logic, that would make Justice White proud.
"Such a requirement may also impose an unmerited burden on the person who consents to an immediate search, since the warrant application procedure entails delay," Justice Alito said.
If we're balancing the relative importance of the rights of a man accused of a crime versus the rights of an occupant to freely and independently exert their joint ownership and control of the property, I have to think we should be going with the guy facing 14 years in prison. The Fourth Amendment is designed to protect the accused -- there is no 28th Amendment protecting the rights of the roommate.
"And an occupant may want the police to conduct a thorough search so that any dangerous contraband can be found and removed," Justice Alito continued.
This is even worse. The occupant could easily do this themselves and even give it to the police and it would most likely be admissible under United States v. Jacobsen. The Court needs to stop this ridiculous analogy originally offered in Randolph that equates denying a social called with denying a police search. You want to bring over a pie, great. You want to search my entire home, I might take exception to that.
Last, the Court, has always, because they've never met a time requirement they didn't balk at, refused to wade into what a reasonable time would be for the denial of entrance to be valid. Here's one idea: It's valid until the police get a warrant. Or it's valid until the police stop investigating the crime. Or to counter their idiotic assertion that the denial would be valid after the defendant is jailed, once you're convicted, you lose your right to deny entry to a dwelling. That would work since your dwelling is now a correctional facility. I think we can all agree that one hour, or the time it took to bring the defendant to jail and come back, is probably on the short end of the time spectrum.
So what does this mean? Practically speaking, the second you leave your house, anyone else can consent to a search who shares the dwelling with you. Instead of the police having to go through that whole burdensome court system we setup to protect the rights of the accused, especially before they're convicted, now all they have to do is play the waiting game. The second the person who denied consent leaves, or the police haul him off to jail, the police can swing by, use any crazy tactic they want to get consent, and boom, all the lawful searching their hearts desire. The next case will invariably be when the police use a ruse to coax the denier of consent out of the house to ask consent from another occupant. Maybe by then the Court will have realized that getting a warrant isn't a burden on the police, but a protection for every American. Of course, once they have a warrant, the police will totally be responsible and definitely not show up with a SWAT team and enter the house with a battering ram, that is, unless you live in Arkeny, Iowa.
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