The Fourth Amendment generally requires the police to obtain a warrant before searching a home, though that requirement may be avoided if the homeowner consents to the search. But happens when two (or more) people reside in the same home, and only one of them consents to the search while the other refuses? Do the police have sufficient consent to conduct a warrentless search in that instance?
The Supreme Court addressed this question in the 2006 case of Georgia v. Randolph and came down against the police. At issue was a domestic violence investigation where the male suspect refused to let the police search his home while his wife welcomed the search. The police went in. Yet according to the Supreme Court, the man’s refusal should have stopped the cops in their tracks. “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,” the Court ruled.
Today, the Supreme Court returned to this subject with a new ruling in favor of law enforcement. At issue in Fernandez v. California was a 2009 search by the Los Angeles Police Department of the home of a robbery suspect. When the officers first arrived, suspect Walter Fernandez denied them entry, but because his girlfriend Roxanne Rojas exhibited signs of recent injury, Fernandez was arrested on separate charges of domestic violence. While Fernandez was being booked, one of the officers returned to the apartment and gained Rojas’ permission to conduct a search, which soon turned up evidence linking Fernandez to the robbery.
Writing for a 6-3 majority, Justice Samuel Alito upheld the LAPD’s actions. “A warrantless consent search is reasonable and thus consistent with the Fourth Amendment irrespective of the availability of a warrant,” Alito wrote. Moreover, he added, “Denying someone in Rojas’ position the right to allow the police to enter her home would also show disrespect for her independence.”
Writing in dissent, Justice Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor and Elena Kagan, accused the majority of weakening the Fourth Amendment and granting the police too much latitude. “Instead of adhering to the warrant requirement,” Ginsburg wrote, “today’s decision tells the police they may dodge it, nevermind ample time to secure the approval of a neutral magistrate.” This ruling, she charged, “shrinks to petite size our holding in Georgia v. Randolph.”