E Pluribus Unum, So Come On In!

The Supreme Court of the United States yesterday issued its opinion in Fernandez v. California.  The case dealt with the ability of police to search the premises of a person when he or she is not home, but someone else who shares the premises is.  By way of background, the Court’s precedent does not require both tenants to be present for valid consent to be given for a search.  However, in 2006, the Court found that where both tenants are actually present, both must consent to the search.

 The facts of the Fernandez case put it in between the rule and the exception.  Fernandez was suspected of recently committing a violent crime.  Police were pointed in the direction of the apartment in question and they knocked on the door.  A bloodied Roxanne Rojas answered, the police asked to search the premises for Fernandez, Fernandez emerged and told the police that he objected to their search.  Believing Fernandez to have recently harmed Rojas, the police arrested him.  They returned an hour later and asked Rojas for consent to search, which she apparently did.  Evidence was recovered and used to convict Fernandez, over his legal objections.

The Supreme Court held that, since Fernandez was not home at the time of the search, his consent was not needed.  The Court rejected his arguments that (1) he did object while he was present, and that the objection should have stood for at least the next hour; and (2) the only reason Fernandez was away was because the police removed him.

The Court dismissed the first argument for two reasons.  First, the Court looked to “widely shared social expectations.”  The Court found that a “friend or visitor” would likely not enter a house where one occupant was shouting “stay out” at the door, while that same visitor would likely enter where “it is known that the objector will not return during the course of the visit.”  Since Fernandez was decidedly unable to return to the premises, Rojas’ “friends and visitors” at the LAPD were free to enter over what Fernandez considered to be a standing objection.

Second, the Court found that applying a “reasonableness” standard to the length of time for which an objection stood – when it came to co-tenant consent searches -would be problematic (from the government’s perspective).  It did not address why the “reasonableness” standard is not problematic in other contexts, specifically when determining whether a warrantless search is “reasonable” . . . .

Dismissing his argument that the sole reason he wasn’t there to object was that the police removed him, the Court then held that because there was probable cause to arrest Fernandez (which he did not dispute), his removal from the premises was not done merely to remove his objection and authorize a search of the apartment.  Therefore, in light of Fernandez’s legal absence, Supreme Court precedent only required the consent of Rojas to search the apartment.

I am uncomfortable with the line of cases holding that the correct legal analysis analogizes the government to “friends and visitors.”  There is a different expectation of privacy between an individual and his friends, visitors, and co-tenants, and between the individual and his government.  What someone is comfortable allowing his wife, kids, relatives, friends, and visitors to see and access around his home may be (and probably is) quite different from what he is comfortable showing the world, much less his government.

This is precisely why the Fourth Amendment protects the individuals’ right to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  The Founders were not overly concerned with whether social norms precluded “friend and visitors” from viewing potentially embarrassing or private information by entering houses over the objections of one tenant – they were concerned with unreasonable government intrusion into the homes and premises of individuals.

Second, I am not convinced that an individual’s constitutional right to the security of his person, house, and effects is diminished once he leaves the premises.  A warrant is generally required to enter the premises of one who lives alone when the resident is not present.  A warrant would generally be required if both tenants objected to the search.  And a warrant would be required if none of the occupants were present.

What has fundamentally changed when only one of many tenants consents, aside from improving the “practicability” of searching the premises without a warrant?  How is one’s right to security of his papers and effects protected?  How has the expectation of privacy diminished?  Justification of multi-occupant consent searches are not quite what the Founders had in mind when they used the phrase: e pluribus unum.  As a national motto, it’s great – as a justification for abrogation of a constitutional right, perhaps not.

If you would care to read the full 6-3 opinion of the Court, as well as the dissent by Justices Ginsburg, Sotomayor, and Kagan, you can find the official slip opinion here. 

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