Divided consent builds a slippery slope

The US Supreme Court ruled in Fernandez v. California (2014) that police may search a residence without a warrant if an occupant consents to a search and an objecting occupant is removed for reasonable purposes such as lawful arrest. Justice Alito delivered the majority opinion joined by Justices Breyer, Kennedy, Roberts, Scalia, and Thomas; Justice Ginsburg wrote a dissent joined by Justices Kagan and Sotomayor.

Walter Fernandez knifed a man, summoned gang members to attack and mug the man, and retreated to the apartment Fernandez shared with girlfriend Roxanne Rojas. Suspicious police officers went to the apartment and heard screaming and fighting inside. They knocked on the door, and Rojas opened it with a baby in her arms and blood on her shirt. When they asked to search the apartment, Fernandez appeared and said, “You don’t have any right to come in here. I know my rights.” Having probable cause that he had assaulted Rojas, the officers arrested and detained him at a nearby station. An hour later the police returned, interrogated Rojas’ son without permission, threatened to take him and requested and obtained Roja’s oral and written consent to search the apartment. Weapons, ammunition, and gang paraphernalia were found. Before the trial, Fernandez unsuccessfully requested suppression of the evidence. A jury sentenced him to 14 years in prison for robbery and infliction of corporal injury on a cohabitant. He petitioned for review, and the Supreme Court granted certiorari.

Justice Alito noted, “Even with modern technological advances, the 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. […] Such a requirement may also impose an unmerited burden on the person who consents to an immediate search.” He pondered Justices Kennedy and Breyer’s questions from the oral argument if a woman can allow police to look for incriminating evidence when her husband has been “in custody for 500 plus days” or served “20 years in Sing Sing.” The essence of the opinion is simple: Sole present cotenants have the power to consent to a search of shared material regardless of absent cotenants’ past objections.

Justice Ginsburg passionately reasoned that warrants have long been required for searches of homes. She added, “[…] today’s decision tells the police they may dodge [the Fourth Amendment].” Faulting the majority with overturning Georgia v. Randolph, 547 U.S. 103 (2006), which held that without a warrant police cannot search a residence when one occupant objects while another consents, she cautioned against police abuse. Finally, she addressed Justice Alito’s concern about the supposed perpetual inability of a cotenant to consent: “Shut from the Court’s sight is the ease and speed with which search warrants nowadays can be obtained. […] 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.” The principle is that if police cannot obtain a search warrant for a long time, then they have no business searching a home in the first place.

The decision builds a slippery slope. In a realistic situation, police ask a couple to search their home, the woman consents but the man objects, he later walks the dog around the neighborhood, and police return to search the home. The line blurs more the closer the objecting co-resident moves toward the residence. Perhaps the cotenant drinks with friends on a neighbor’s porch or sleeps in a hammock deep in the backyard. An equally realistic but more frightening scenario is one in which police compel consent to search a home with multiple residents by repeatedly asking and detaining each one until a terrified resident consents. During argument, Justice Sotomayor forewarned, “Because all they have to do is arrest and remove people.”

A wilder, scarier hypothetical is an elaborate conspiracy: A man lives in his girlfriend’s house. He is cheating on her. The adulterers plan to destroy his girlfriend’s life. One day he instigates a verbal and physical altercation with the girlfriend, a skilled martial artist. She defends herself, and he is bloodied. The man’s lover calls the police. The man claims the girlfriend is an unstable drug addict. The police ask to search. He consents; she objects. The police arrest the girlfriend for assault. They rummage the house and find illicit substances that the adulterers had planted. The innocent, dazed girlfriend is severely charged with local and federal crimes. Traditionally, the Court ignores the secondary effects of its decisions. The fiction above is potent because it reverses the sexual politics of Fernandez.

The intrigue is the Court’s division along not partisan, but gendered lines. The male justices thought Rojas’s status as a victim made her ability to allow the police to search the apartment ever important. Suddenly progressive, Justice Alito asserted, “Denying someone in Rojas’ position the right to allow the police to enter her home would also show disrespect for her independence.” But Justice Ginsburg’s rebuttal was clear and noble: “The specter of domestic abuse hardly necessitates the diminution of the Fourth Amendment rights at stake.” It seems the female dissenters wanted to express that the greatest threat to the welfare of Rojas and victims of domestic violence across the nation at that weighty moment was not an abusive boyfriend already in custody, but instead the police ostensibly offering to help with a pen and a consent form.

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