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Police Get Another Bite at the Apple with Fernandez v. California


When law enforcement wants to search someone's house, they must, per the Fourth Amendment, have a valid search warrant or exigent circumstances. If they receive consent, however, they can enter the home and search away without having met these requirements. Searching by consent is one of the primary ways law enforcement can make a search or seizure without a warrant.

But what happens when a couple is involved? Imagine, for example, that a couple is living together in a house and the husband, who is being arrested, tells the police they CANNOT search his home because they do not have his consent. The police take the man into custody and then kindly ask the man's wife if they can search the house. She says sure. The police now start their search. Can they do this?

Seeking Consent: Fair Game Once Police Remove a Resident

Turns out, according to Supreme Court case Fernandez v. California, this form of acquiring consent is legal and totally acceptable. Law enforcement can once again ask and receive permission after the objecting resident is lawfully removed from the premises. As long as the police have a legal basis for removing the non-consenting tenant from the house, the scenario described above will be fair game in the eyes of the law.

Previously, Randolph was the law of the land when it came to obtaining valid consent from another person in a house. Under this ruling, as soon as the person objecting to the search left the premises, law enforcement's ability to ask another person vanished as well. Police could only ask another person for consent while the objector was still present in the house. Even though they only needed one yes to enter, police were still bound by the objector's presence. After Fernandez, however, this condition was no longer binding.

According to Justice Samuel Alito, Jr. of the Supreme Court of the United States, if someone who does not consent to a search is 5 minutes away at Dairy Queen getting his 4-year-old daughter an ice cream cone, he has the same consenting rights as someone who is dragged out of his house, arrested, and put into the police cruiser. In both cases, the men cannot speak for their house or effects because they are not present at the time consent is given. Justice Alito sums this up, saying,

"We therefore hold that an 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."

More Consent, Fewer Warrants

In summary, if the police remove a non-consenting person from their house for a valid legal reason, they can seek consent from someone else who appears to have authority. It's that simple. Under Fernandez, the door has been opened to far more searches and seizures:

  • Police now have limited control over your ability to refuse searches
  • Law enforcement may have multiple opportunities to seek consent for a search
  • With more chances to seek consent, officers need fewer warrants than ever

When police seem to have control the voluntariness of a situation, things appear a tad bit one-sided—undermining the Fourth Amendment's search and seizure requirements. With this in mind, it is important that your right to lawful searches is always protected. Turn to The Meranda Law Firm LTD for representation after a questionable search and seizure.

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