This week, the Supreme Court issued its ruling in Fernandez v. California, 12-7822.  The fact pattern is simple enough.  The police observe a fleeing suspect from a violent robbery enter an apartment and hear screams from inside.  They knock on the door, and a person other than the suspect answers.  The fleeing suspect then comes to the door and tells the police they cannot enter.  The police arrest the suspect.  They take him to the police station, return to the apartment, and obtain the co-occupant’s consent to enter and search, finding weapons and ammunition inside.


In your gut—does this seem like okay police practice?  Or something unconstitutional?


In spirit, I agree with the Ginsburg dissent – a warrant should have been obtained – but looking simply at Supreme Court precedent, I think Fernandez was rightly decided in not requiring a warrant.


The 2006 case Georgia v. Randolph is oft-cited in the opinion.  It had long been the rule that anyone who lives in a house can give permission to the police to enter.  Randolph modified that rule by holding that consent from one occupant is not valid if a co-occupant is also present at the doorway and objects to the police entry.  The dissent argues that the majority in Fernandez is rolling back Fourth Amendment protections.  I do not think this is the case, because those protections were rolled back a long time ago.  If anything, the 1974 case United States v. Matlock is a much bigger example of “dodg[ing]” the warrant requirement, to borrow Justice Ginsburg’s language.  While the holding of Matlock simply puts forth the rule that a co-occupant, and not the defendant herself, can grant police permission to enter, the facts of the case demonstrate why the Fernandez decision was not surprising in any way.


In Matlock, the suspect was arrested in the front yard of his house.  The police did not remove him from the property and take him to the station, as was the case in Fernandez.  Instead, they go straight to the door and get permission to enter while Matlock is present only a few yards away!  The major differences between the Matlock and Fernandez fact patterns are A) Fernandez was actually taken away from the property to another location while Matlock was still at the property and B) Matlock did not get to take part in any doorway colloquy.  Reasonably, I think we can assume that if the police had turned around and asked Matlock if it was okay to search his home, he would have objected.  But that step was never taken.  If it is constitutional to arrest someone, keep him on his property, and not even ask him if it is okay to enter his house, then it would seem that it would be constitutional to arrest someone, transport him across town, and then obtain consent to enter the home from a co-occupant regardless of what the arrested suspect thinks.


So based on precedent, in which the Matlock fact pattern says police entry is permissible and Randolph says the only restriction on this is if a co-occupant is present at the colloquy and objects, I think Fernandez came out correctly.  To stay within the Court’s previous decisions, you would need to say that Fernandez’s objection extended indefinitely, even when not present.  This would be an expansion of Randolph, not a roll-back.


The dissent rightly claims that this is an example of how little weight the warrant clause is given.  But again, this is not something that just happened on Tuesday but rather has been going on for decades.  Outside of Randolph, the dissent struggles to find any case in the past 30 or more years that supports its position.  The crux of the dissent is that if the police had time to arrest Fernandez and take him to the police station, then they had enough time to procure a warrant to overcome his objection to search, which they view as still looming over the property.  I am not sure where I stand on how long one’s objection can remain in force—is it gone if they step out of the doorway for a second?  If they object and then go to the kitchen to grab a glass of water?  If they object, the police return 5 hours later and now the objecting party is at the store?  But in terms of safeguarding one’s Fourth Amendment rights, requiring a warrant if an arrested suspect objects to a search in a manner that would have required a warrant under Randolph is reasonable.  The police here were not concerned with the potential destruction of evidence and there were no exigent circumstances to enter as they now had the violent suspect in custody, so requiring a warrant would not hinder the investigation.  Sadly, for the dissent, there is almost nothing in the past half century of Supreme Court decisions to support this position.


Fernandez, in my opinion, is not a roll-back of Fourth Amendment protections.  Logically, the result fits neatly into previous Court decisions.  But the decades-long practice of making the warrant clause an afterthought, rather than a rule with limited exceptions, has greatly enhanced police ability to enter a home without involving the neutral magistrate envisioned by the Founders.  As each year passes, opinions like the Ginsburg dissent will be further and further removed from any case that supports the supremacy of the warrant clause, seemingly making any change to our current path unlikely.


For more information, see the case opinion at http://www.supremecourt.gov/opinions/13pdf/12-7822_he4l.pdf