Supreme Court 4th Amendment Ruling: Is Third Party Consent Valid?

While citizens and the media focused on Ukraine, Venezuela, Ted Cruz, and midterm election races, the Supreme Court restricted the Fourth Amendment further by making it even easier for the authorities to enter one’s home.

On February 25, SCOTUS decided in Fernandez v. California that authorities can search someone’s home without a warrant when the residents disagree about allowing officers to do so, and the person who objected is removed from the premises. This is in spite of the Court’s 2006 ruling in Georgia v. Randolph, which decreed that when both residents are present – and one person refuses – authorities must err on the side of Constitutionality and obtain a warrant before a search. So when the objector isn’t home, the police can obtain third-party consent from other residents.

Third-party consent for searches is nothing new. In United States v. Matlock in 1974, SCOTUS stated that anybody who has “common authority” over someone’s home and stuff can consent to a search – and that permission “is valid as against the absent, nonconsenting person with whom that authority is shared.” Georgia v. Randolph is an exception to that rule of thumb. Fernandez v. California doubled down on it.

So what happened in the Fernandez case anyway?

SCOTUS sided with the state of California against Walter Fernandez, who was sentenced to 14 years in prison for robbery (among other things). Here’s the story. The cops came to Fernandez’s apartment on the suspicion that “someone who had committed a gang-related assault” entered the premises. As the officers approached, they heard a scuffle inside. Fernandez’s live-in girlfriend answered the door with bruises and blood all over her. Fernandez came to the door and officers told him to back off to separate him from his girlfriend. Fernandez stated that he knew his rights and told the officers they were not allowed to enter the apartment. The cops restrained him and took him out of his home because they (reasonably) were concerned about domestic violence.

Very shortly afterward the cops realized that Fernandez was the suspect they were looking for in the gang-related case – so they arrested him. An hour later, officers went back to the house and asked the girlfriend if they could search the apartment. She agreed and the police found the evidence they needed to tie him to the initial crime they were investigating.

As is usual in these cases, the person involved is a less than sympathetic figure. In Fernandez v. California the previous statement is putting it lightly. Nonetheless, it’s imperative to separate the character of the individual from the consequences of any SCOTUS decision. This is especially necessary in Fourth Amendment cases, which tend to be brought to the courts by convicted criminals.

In case of an emergency, the police can perform a search without a warrant. However, Fernandez was already removed from the premises. That abated the immediate emergency of domestic violence. There was more than enough reasonable cause to obtain a warrant from a judge to search his home after his arrest. In Fernandez’s case, one can argue that the search fell under the Search Incident to Arrest exemption to obtaining a warrant.

But Fernandez’s case was decided based on stare decisis rather than a SITA exception. Of course there’s no difference between someone who’s absent due to being in handcuffs versus being absent for other reasons. SCOTUS’s ruling in Fernandez v. California comes as no surprise.

SCOTUSblog‘s Orin Kerr writes that this decision belies the question of whether police officers can intentionally circumvent denials of consent by getting the defendant out of the way and going back to ask his or her roommate for permission a second time. That’s certainly something to chew on.

But, in reality, this most recent decision about third-party consent should be reviving the debate about the concept’s validity in the first place.

United States v. Matlock is so broad that even someone merely suspected – not arrested, convicted, or anything beyond that – can have his or her landlord, significant other, roommate, or whoever lives there allow the police to come in even when the actual suspect refuses access.

So does the law of the land only grant certain Fourth Amendment protections to people who live alone?

Apparently so.