Matthew T. Mangino
The Pennsylvania Law Weekly
December 9, 2013
The U.S. Supreme Court recently heard arguments in a Fourth Amendment case that has the potential to undermine a homeowner's reasonable expectation of privacy.
The case argued before the Supreme Court is Fernandez v. California, 12-7822. The issue before the court began in 2009 when police responded to the report of a robbery. An officer saw a man who resembled the suspect running into an apartment building. When officers announced themselves, a woman opened the door. Inside the apartment, police spotted Walt Fernandez, who they believed was their man.
The police asked the woman if they could search the apartment. Fernandez stepped forward and strenuously objected to the search.
Police arrested Fernandez for robbery and left the woman in the apartment. About an hour later, one of the officers returned to the apartment, told the woman that Fernandez was in custody and asked once again if he could search the apartment. The woman agreed.
Police found a sawed-off shotgun, ammunition and a knife, which prosecutors used as evidence to prove Fernandez was guilty of robbery. Fernandez argued that the evidence was seized illegally.
The ability to search a residence with consent of one co-tenant dates back to United States v. Matlock, 415 U.S. 164 (1974). In Matlock, the court stressed that co-tenants "assume the risk" that one tenant will consent to a police search of the residence, so if only one tenant is present, he or she can consent for all of the tenants.
In Georgia v. Randolph, 547 U.S. 103 (2006), the court narrowed the "co-tenant rule" established in Matlock. In Randolph, the police were called to a home wherein a husband and wife were arguing. The wife complained of the husband's drug use. The police asked for his permission to search the residence; he refused. The police asked the wife if she would consent to the search. She agreed and took the police inside, where they found illegal drugs.
A majority of the court concluded that "no sensible person" would enter a residence when one co-tenant is present and objecting. A tenant's "reasonable expectations" of privacy resulted in the evidence of the husband's drugs being suppressed.
There is a deep split among the federal circuit courts regarding the issue presented in Fernandez. The U.S. Court of Appeals for the Ninth Circuit's holding not allowing the police to conduct a consensual search if one tenant grants permission after the refusing tenant leaves is in conflict with holdings in the Eighth, Seventh, Fifth and Fourth circuits, as well as the state supreme courts of Colorado, New York and Wisconsin.
Michigan courts, an Oregon state appellate court and the District of Columbia agree with the Ninth Circuit.
During this month's argument before the U.S. Supreme Court, some justices appeared to agree with attorneys for the Los Angeles Police Department.
"It's her house, too," Justice Stephen G. Breyer said, according to The Los Angeles Times. "Can she never invite the policeman in?"
"The police can simply get a warrant," Fernandez's attorney replied.
But Chief Justice John G. Roberts Jr. said the police may find obtaining consent from a tenant "simpler, faster and less burdensome than applying for a warrant."
There are a number of concerns with the facts in Fernandez.
Can the police use an arrest as a pretext to proceeding with a warrantless search? Presumably, if the police have probable cause for an arrest, they would have sufficient probable cause for a search warrant. Can police dispense with a search warrant merely because it is quicker and easier to get consent from one tenant over the objection of another tenant?
Is the issue in Fernandez more about expediency than an infringement on a reasonable expectation of privacy?
There is a history of using pretextual traffic stops to get probable cause for a search. In Whren v. United States, 517 U.S. 806 (1996), police waited for a suspect to commit a vehicle code violation and pulled the vehicle over with probable cause. Police have also utilized the assistance of drug-sniffing dogs to establish probable cause to search vehicles that were subject to pretextual stops.
There are also accepted exceptions to getting a warrant prior to conducting a search. Exigent circumstances may permit a search in, as Roberts put it, a "simpler, faster and less burdensome" manner.
Only Justice Sonia Sotomayor strongly argued for requiring police to obtain a warrant from a magistrate before searching a home. At one point, Sotomayor exclaimed, "Get a warrant. When you have probable cause to believe a crime has been committed ... you've got to secure the premises and get a warrant. I don't know why that's so difficult for police officers to understand."
A suspect that clearly and unequivocally asserts his or her refusal to consent to a search should have that assertion honored.
There have been other exceptions carved out when specifically invoking constitutional protections. For instance, in Maryland v. Shatzer, 550 U.S. ___ (2011), the court found that when an accused invokes the Sixth Amendment right to counsel, the police may not seek to question the accused again until at least 14 days pass and the accused is not in custody.
This seems like a useful pause that would permit the accused to reflect on his or her need for counsel. Such a pause would be impractical in a search-related situation. An accused's memory of events are not likely to change in 14 days, but potential evidence existing in a place to be searched can be removed or destroyed.
Black-letter law provides that the Fourth Amendment prohibits unreasonable search and seizure. At stake is a suspect's reasonable expectation of privacy. A suspect's Fourth Amendment rights are preserved when a disinterested magistrate authorizes a search of a specific location for specifically detailed items.
The warrant is issued only upon probable cause. The high court should not permit the police to do any less to search Fernandez's home.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. He is a former district attorney for Lawrence County and a former member of the Pennsylvania Board of Probation and Parole. Contact him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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