The cohabitation aggravation: third-party consent and the Fourth Amendment following Fernandez v. California.

• Author: Yackley, Alexis A.

In 2014, the Supreme Court of the United States added another chapter on third-party consent law. In a 6-3 decision, the Court upheld the third-party consent search in Fernandez v. California. The Court found that the physical presence of an objecting tenant is an indispensible factor under a Georgia v. Randolph analysis and refused to honor the objection given prior to the objecting tenant's removal from the home. Seeking to preserve the utility of consent searches and limit the practical problems that may be associated with certain objections, the Court reasoned that once Fernandez was removed, his objection did not remain effective. In subtracting this case from Randolph's ambit, the Court diminished Fourth Amendment protections and "opened the door" to even more warrantless searches. The Court, in refusing to accept the facts of Fernandez under Randolph, failed to recognize that the factor it based its entire opinion on--physical presence--was in fact present. Fernandez, by placing himself at the front door of the apartment, and unequivocally refusing to allow officers to enter, satisfied the legal requirement espoused in Randolph. By assigning such a limited interpretation to the concept of physical presence, the Court will ultimately create a plethora of cases falling under the jurisdiction of third-party consent law. Also, even though the Court's goal of protecting consent searches through uniform and simple rules in the third-party context is well noted, the Court failed to safeguard the home, the place most protected under Fourth Amendment jurisprudence. This decision will ultimately have negative consequences for those future citizens that may be caught in the wicked snare that is now third-party consent law.

1. INTRODUCTION

   Envision for a moment that you and your spouse are at home and the doorbell rings. (1) You get up to answer and discover a police officer standing at your front doorstep. (2) He tells you that he is investigating a crime and asks if he can come in and look around. (3) You have nothing to hide, so you say, "Yes." (4) A moment later your spouse comes to the door and objects. (5)

   It is well settled that police need neither probable cause nor reasonable suspicion to search a home when valid consent is given. (6) In the previous situation, the objection given by your spouse negates your prior consent under Fourth Amendment jurisprudence. (7) But what would occur if police arrested the objecting spouse and removed him or her from the scene? (8) Would the objection remain effective? (9) In 2014, the Supreme Court held in Fernandez v. California that it does not. (10)

   The following article discusses the facts and procedure of Fernandez. (11) Next, the article examines history and precedent leading up to the Court's decision. (12) The article then analyzes the impact the decision has on the integrity of the Fourth Amendment and the implications on third-party consent law. (13) Finally, this article assesses the practical consequences the Court's decision will have on the "right[s] of people to be secure in their persons, houses, papers, and effects...." (14)

2. FACTS AND PROCEDURE OF FERNANDEZ V. CALIFORNIA

   1. FACTUAL BACKGROUND

      On the morning of October 12, 2009, in Los Angeles, California, Walter Fernandez, a known member of the Drifters, (15) approached Abel Lopez, informed Lopez that he was in Drifters territory, cut Lopez' wrist with a knife, and, along with other members of the gang, assaulted and robbed him of $400 and his cell phone. (16) About an hour later, Officer Joseph Cirrito and Detective Kelly Clark received a dispatch call about the assault. (17) The report mentioned that the assailant had a Drifters tattoo on his head. (18) Officer Cirrito and Detective Clark then proceeded to an alleyway, which was a known Drifters gang location. (19) When the officers arrived, a passerby pointed towards an upstairs apartment and said: "[T]he guy is in the apartment." (20) Officers then saw a man run up a back stairwell and onto the second floor. (21) Minutes later, officers heard fighting and screaming coming from the apartment where they had observed the man enter. (22)

      After waiting for backup, the officers approached the apartment door, which was later discovered to be the home of Fernandez and his girlfriend, Roxanne Rojas. (23) The couples' infant daughter and Rojas' four-year old son were also present in the apartment. (24) The officers knocked, Rojas answered, and it appeared to the officers that she had been crying. (25) Rojas' face appeared red and swollen, and she had fresh blood on her shirt and hand. (26) When the officers questioned Rojas about her appearance, she told them that she had been in a fight. (27) When they asked if anyone else was in the apartment, Rojas told them that it was only her and her two children. (28)

      Following this initial questioning, Officer Cirrito asked Rojas to step out of her apartment so he could continue the investigation and conduct a protective sweep. (29) Moments later, however, Fernandez, who officers noticed had a gang-like tattoo atop his shaved head, appeared in the doorway and said, "You don't have any right to come in here. I know my rights." (30) Suspecting Fernandez of both the domestic assault of Rojas and the earlier assault and robbery of Lopez, Officer Cirrito came into the apartment and physically removed Fernandez. (31) The officers then took Fernandez down to an alleyway to confirm with Lopez that Fernandez was his attacker. (32) Based on a positive identification from Lopez, officers took Fernandez to the police station for booking. (33)

      Roughly one hour after Fernandez' removal, Officer Cirrito and Detective Clark returned to the apartment, informed Rojas that Fernandez was at the police station, and asked for Rojas' consent to search the apartment. (34) Rojas gave the officers both oral and written consent to search. (35) During the search, the officers found clothing worn during the robbery, a knife, ammunition, a shotgun, and Drifters paraphernalia. (36) At no time did the officers apply for a search warrant. (37)

   2. LOWER COURT PROCEEDINGS

      1. Trial Court

         The state of California charged Fernandez with robbery, corporal injury on a child's parent, and three counts of firearms and ammunition possession. (38) Prior to trial, Fernandez filed a motion to suppress the evidence gathered during the warrantless search of his home. (39) After a hearing, the trial court denied Fernandez' motion and ruled that Rojas' consent was both valid and voluntary. (40) The trial court did not address that Fernandez had voiced his objection to a search of his apartment prior to his arrest. (41) Fernandez pleaded nolo contendere to the firearms and ammunition charges, but proceeded to trial on the remaining counts. (42) A jury found him guilty of robbery and infliction of corporal injury and sentenced him to a term of fourteen years imprisonment. (43)

      2. Court of Appeals

         Citing Georgia v. Randolph as authority, Fernandez argued on appeal that, although Rojas, a fellow co-occupant of the apartment, consented, Fernandez' initial objection to the search while he was still present at the apartment rendered the search unreasonable. (44) Fernandez further supported his argument with a factually similar case from the Ninth Circuit, United States v. Murphy, (45) but the appeals court ultimately affirmed his conviction. (46) Siding with other federal circuit courts, the California Court of Appeals found that in order to comport with Randolph, a co-tenant must be physically present to register a valid, competing objection against a fellow consenting co-tenant. (47)

         Fernandez then petitioned for further review. (48) The California Supreme Court exercised its discretion and denied Fernandez' appeal. (49) Following this, Fernandez petitioned for final review from the Supreme Court of the United States and was granted certiorari. (50) The case was argued before the Court on November 13, 2013 and decided on February 25, 2014. (51)

   3. THE SUPREME COURT OF THE UNITED STATES

      1. The Majority Opinion

         Justice Alito authored the majority opinion of the Court. (52) In a 6-3 split, the Court held that the physical presence of an objecting tenant is an indispensible factor under a Randolph analysis. (53) The Court refused to extend Randolph to a situation where officers procured a co-tenant's consent after the objecting co-tenant had been removed from the premises. (54) The Court proffered three general reasons for its decision. (55) First, consent searches are a useful tool for officers in ferreting out crime. (56) To require a warrant where officers have obtained valid consent would be an unmerited imposition on both law enforcement and on those willing to consent. (57) Second, it would be impractical to adopt any type of rule that would require officers or courts to determine the precise time limits and procedures necessary for an objection such as the one presented in this case. (58) Finally, the consenting occupant of the premises also has rights. (59) To deprive the remaining tenant of the power to allow police to enter and search would be improper under the authority of the third-party consent doctrine. (60) These underlying reasons functioned to discredit Fernandez' two main arguments, and served as the basis for the Court's ultimate disposition of the case. (61)

         Fernandez argued that the fact that he was not physically present should not be dispositive because officers removed him against his will. (62) The Court rejected this argument and cited Randolph dictum which suggested that one cotenant's consent may not suffice if '"there is evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection.'" (63) The majority noted that this dictum does not require a subjective inquiry into the minds of the arresting officers, but rather refers to situations where an arrest and removal...