Be Careful Who You Live With

The Supreme Court has issued another opinion on the Fourth Amendment, and *gasp*it further dilutes one of the most valuable liberties you have.  No surprise here.  Just in the short time this blog has been running you can see posts regarding the further degradation of the 4th.  The entire body of 4A jurisprudence is a whimsical walk down the erosion of your freedoms.  Don’t worry, there will be many more awful decisions to come.  You can find the full text of Fernandez v. California here:

First, a quick recitation of the facts:  Cops are told that their suspect is an an apartment.  They go to the apartment and a beaten woman answers the door.  They seek to do a protective sweep of the apartment but the suspect appears and tells the cops they can’t search his apartment.  The cops, with probable cause to believe he’d beaten the woman, arrest him.  They then return after they had taken the suspect to jail, and the woman consents to the apartment search which yields evidence of criminal activity.

Here’s the important fact:  the suspect already told the officers no.  They returned and got a yes after he was arrested.

This case focuses heavily on a few other cases, the largest being Georgia v. Randolf , 547 U.S. 103 (2006).  The main holding in that case was that if a person was present to tell the cops no, then another person could not give the cops consent.  The cases are similar, except here, the cops took the guy who said no, and arrested him, then came back and got their yes.

Next I’ll hit some main points in Justice Alito’s decision.

“And even where the police could establish probable cause, requiring a warrant despite the owner’s consent would needlessly inconvenience everyone involved—not only the officers and the magistrate but also the occupant of the premises, who would generally either be compelled or would feel a need to stay until the search was completed. Michigan v. Summers, 452 U. S. 692, 701 (1981)”

That’s correct, when your Supreme Court considers whether or not the 4th Amendment should be called to protect you, they’re considering “convenience”.

“As the Court put it, ‘the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.’ ” United States v. Matlock, 415 U. S. 164 (1974).

This is true, and while I believe a wrong decision, it is key to the Court’s holding in this case.

What they aren’t strongly considering is the holding in Randolph where they stated, “a physically present inhabitant’s express refusal of consent to a police search [of his home] is dispositive as to him, regardless of the consent of a fellow occupant.”  They aren’t overruling that holding; they’re placing far too much weight in the physical presence part.

Basically, they’re still onto the idea that if multiple tenants are present, the cops can’t just keep asking all the tenants until they get a yes, the Randolph holding, but that in this case, the no vote was gone, never mind that they made him go away.

Then there’s the added issue that comes with what is called the “good faith exception”.  Under this exception, an officer can make a mistake of fact, but still have that evidence admitted so long as he didn’t violate your rights on purpose.  Fortunately, the state of Idaho at least recognizes just how silly a rule this is and we don’t recognize it, but that isn’t going to help you on the federal level.  So when the officer approaches and gets permission to search your house from, say, an angry girlfriend, a neighbor, pretty much anyone, so long as that officer doesn’t KNOW that they didn’t have the right to give consent, that evidence can be admitted (again, not in Idaho).  In fact, the Court cites to another case, Illinois v. Rodriguez, 497 U.S. 177 (1990) where this very thing happened.  The cops wrongly assumed a person who gave consent to search was still a resident.  Yet because their assumption was a reasonable one, evidence was still admitted.

So the Defendant felt that he was protected under the 4th Amendment for 2 reasons:  1) because he did not allow the officers consent, so they removed him.  He feels that the other tenant’s consent is not valid then, as in the Randoloph holding; and 2) that his previous objection denying them consent was sufficient.

To the first point the court holds that “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.”

This is a decent statement of law so long as you accept the idea that the Matlock holding was correct giving each tenant the right to give consent.  I would say that the 4th Amendment requires informed consent from all parties, but I’m not a justice so we’ll just play along.  However, the above holding just doesn’t fit the facts of the case very well.  Why a tenant is gone shouldn’t matter, UNLESS, it’s because the cops physically removed him.  It’s almost like the joke from Ron White where he is arrested for being drunk in public after he was thrown out of the bar, “Hey, I was drunk in a bar.  They threw me into public.  I don’t wanna be drunk in public.  I want to drunk in a bar”:

The second argument is dismissed by the Court also on grounds of convenience.

“Suppose that a husband and wife owned a house as joint tenants and that the husband, after objecting to a search of the house, was convicted and sentenced to a 15-year prison term. Under petitioner’s proposed rule, the wife would be unable to consent to a search of the house 10 years after the date on which her husband objected. We refuse to stretch Randolph to such strange lengths.”  They then refuse to use the term “a reasonable amount of time”.

It appears that Justice Alito doesn’t understand that our Bill of Rights don’t exist in the name of convenience.  GET A WARRANT.  Let us consider this the above scenario.  Are you going to tell me that at no point during those 10-15 years would the officers be able to get a warrant?  Double so when you consider the case placed before the court.  The other tenant gave consent to a search of the house.  So you can now use an affidavit by her TO GET A WARRANT.  They’re removed any possibility of the suspect destroying evidence because he’s in county at this point.

The Bill of Rights is designed specifically to make life hard for government.  It’s there to protect us.

Everything that you need to know about this decision, and about the 4th Amendment as a whole is right here in Justice Ginsburg’s dissent: “The Court has accordingly declared warrantless searches, in the main, “per se unreasonable.  If this main rule is to remain hardy, the Court has explained, exceptions to the warrant requirement must be “few in number and carefully delineated.” (citations omitted for readability).

“Although the police have probable cause and could obtain a warrant with dispatch, if they can gain the con- sent of someone other than the suspect, why should the law insist on the formality of a warrant? Because 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.”

There are then a variety of property law arguments made, which are good, but not dispositive.

So, what does this mean to you?

Well, in his concurrence, Justice Thomas sums it up well:

“[c]o-occupants have ‘assumed the risk that one of their number might permit [a] common area to be searched.’” Ibid. (quoting United States v. Matlock, 415 U. S. 164, 171,(1974)).

So be careful who you choose to live with.  Be careful who you let into your home.  Many families have a fire plan.  Have a police contact plan.  Make sure each party understands that they are not to give consent to search.  And don’t go around beating up on women.  They might not care about protecting your sorry ass if you do.

1 Comment

  1. So post a letter of non-consent on your door along with a list of current tenants?

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