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Fernandez v. California: Consent and Home Searches

March 5, 2014 Criminal Law and Procedure

When the police ask if they can search your apartment or home you do not have to consent. You can say no, you do not have my consent to search my home. Without your consent or some compelling reason to perform a warrantless search the police will have to persuade a judge to give them a warrant.

Let’s say your roommate is at the door telling the police that he consents to a search. You can still object to the search and the police will have to obtain a warrant. But what happens if you tell the police you do not consent to a search and they come back later and gain consent from your roommate when you’re not there?

This is the question the U.S. Supreme Court answered in the case of Fernandez v. California.

In this case, the police chased Fernandez, a robbery suspect, to his apartment. A woman who appeared to have been recently assaulted answered the door. Fernandez then came to the door and refused to allow the police to enter. The police arrested Fernandez for assault. Later on the police came back to the apartment, obtained the woman’s consent to search the premises, and found contraband belonging to Fernandez.

The Fourth Amendment of the U.S. Constitution prohibits unreasonable searches. Case law has established that a warrant is required to search a residence unless there is an exception, such as a person in the home is in imminent danger.

Consent by the occupant is another exception to the warrant requirement. It only makes sense that if someone consents to a search the police shouldn’t have to convince a judge for a warrant.

Any person who resides in a home may consent to a search. The police do not need to ask for consent from everyone who lives in the home. But if a person who is physically present in the home objects, then the police must get a warrant. The Court says that the actual physical presence of the objecting occupant is key. Once the objecting occupant is gone, the police can try to obtain the consent of a different household member.

This is the case even if the police are the reason that the objecting occupant is not present, as was the situation here, when the police removed Fernandez by arresting him. The fact that police can get around an objection by removing the objecting occupant from the home might not seem fair to many people, and it isn’t. Unfortunately, the Court has said over and over that the subjective intentions of the police will not be considered.


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