Supreme Court

Supreme Court Broadens Police Power to Conduct Warrantless Home Searches


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."

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  1. Damn liberal justices! No respect for the constitution!

    1. Shhh! Red Tony is taking names today!

    2. Interesting that the 3 women dissented to protect the 4th amendment when some would argue this ruling will help in cases of domestic violence. I commend them for their principled stance.

  2. Ah, the classic “your roommate said it was cool” exception to the Fourth Amendment.

    1. Your dog gave consent.


      1. Well they already have the, “MY dog gave consent,” so this can’t be that far off.

  3. Your consent or your head.

  4. The appellant isn’t sympathetic in this case, so the common person will see it as justice saving the day. That’s the problem with these fourth amendment challenges – the only ones that make it big are the exceptions. People don’t understand that when you’re talking procedure, you need to put substance aside and evaluate the worst case scenario – or even the more likely scenario – on the other side.

    1. I didn’t phrase that well. What I mean is, the cases that make it this far are the ones where, in the aggregate, the bad guy got what he deserved because of the procedural violation. It ignores all the other instances where people are inconvenienced and treated like criminals. As much as I hate the whole dog-shooting thing, I’m sort of glad that people understand there are actual consequences when the cops invade your home mistakenly. It’s not a simple “Oh, you were inconvenienced. If you weren’t doing something wrong, what are you afraid of?”

    2. The appellant is never sympathetic in a fourth amendment case. These case only come up when the appellant is a criminal defendant that is trying to apply the exclusionary rule to bar evidence of his guilt found in a warrantless search. If the police found nothing, then the only remedy is a civil suit where the police get qualified immunity.

    3. The worst problem is the 4th Amdt cases that can’t ever be made – because they failed to result in arrest and conviction. The police can shit all over someone with ZERO repercussions as long as they don’t end up with evidence (illegally obtained) and a conviction.

      You just got your rights trampled was all? Oh too bad, but hey no harm no foul.

  5. neutral magistrate.


  6. “Denying someone in Rojas’ position the right to allow the police to enter her home would also show disrespect for her independence.”

    So…Tony is Alito?

    1. Because patriarchy.

  7. I’m of two minds on this Fernandez case. I’m not sure it’s great blow to freedom to suggest that Rojas, alone in the apartment can be overridden by a previous denial of someone who’s no longer in the apartment.

    However, I’d sure like to know the details of this particular case. Like of the cops were so cock-sure that Walter Fernandez was involved in the burglary, why couldn’t they just get a damned warrant? Why all the clever psychology?

    1. That’s not the real question.

      The question is:

      Would requiring all-party consent for ALL warrantless searches be a great blow for freedom?

      I think it would be.

      I think the justices also see how it would be, so they were determined to not allow that to happen. If too many precedents in a row requiring all-party consent get set up, I could bring a case disputing the warrantless acquisition of business records. POOF! That one case would destroy just about half of the business of the NSA, IRS and DEA right there.

      1. Would requiring all-party consent for ALL warrantless searches be a great blow for freedom?

        That’s a good question… but may not be practicable.

        And I don’t make that assertion lightly, as someone who believes we should fight tooth-and-nail everything the cops want because it makes their job easy.

        Off the top of my head, there are a lot of complicated property situations where all owners of the property are not available or reachable.

        I’m no lawyer (or Doctor), so I’m certainly open to helpful criticism here. I guess I’d need to understand what would constitute ALL parties?

        All parties who are legal owners? Listed on the deed and/or listed on a mortgage (if one exists) since deed and mortgage are two different things. All current residents? All present residents?

        1. Off the top of my head, there are a lot of complicated property situations where all owners of the property are not available or reachable.

          *Shrug*. I don’t see that as an inherent problem.

          1. Hey, I’m not going to fight my libertarian impulses to spit in the eye of the state… but we do allow searches based on consent now, but (contradiction inbound!) I’m not sure it’s a great idea to essentially make all searches impossible.

          2. Off the top of my head, there are a lot of complicated property situations where all owners of the property are not available or reachable.

            Then get a warrant. There are already gaping holes in the 4th for emergency situations.

            1. That was part II of my question… why all the clever psychology on the part of the cops here?

              1. As I said down thread, the cops must have had nothing at all if they thought they couldn’t get a warrant. They give those out like beads at Mardi Gras.

                1. the primary problem here is that cops creating the situation where he wasn’t present to deny access.

                  That means if the cops want to search your home they just arrest anyone who wont allow it. dont want to be arrested? let us search. when is the last time you heard of a cop getting in trouble for an arbitrary arrest? never unless person was politically connected.

                  tv is even worse. its SOP for cops to ‘hold’ a person for 48 hours with no evidence/PC on ‘hunch’. this is total bullshit. I honestly understand the desire to seek justice, and our bill of rights creates situations where cops know guilt without having jury-proof evidence, but the alternative is a discretionary space so large that bad cops use arrest as a weapon to force compliance with arbitrary demands.

                  Its simply too much power to not corrupt. They need ‘govt agent’ immunity revoked or to do away with the 48 hour holds.

        2. “Off the top of my head, there are a lot of complicated property situations where all owners of the property are not available or reachable.”

          The cops have an easy solution in that situation- get a warrant.

      2. To be clear, requiring all-party consent would, I agree, increase freedom and property rights and privacy.

        1. requiring all-party consent would, I agree, increase freedom and property rights and privacy.

          I’m not sure this is true. In what other contexts is all-party consent required for invitation of another person onto one’s private residence?

          “Sorry honey, but by inviting your friend over to the house without my knowledge and consent you’ve made a criminal of yourself.”

          1. The more I think of this, I don’t even know what counts as consent under the current laws.

            Let’s say I’m downstairs, smokin’ weed. My 14 yr old nephew is upstairs playing PS3. A knock at the door, my nephew answers. Cops wanting to come in claiming they smelled marijuana, and would like to take a look around. Nephew consents.

            Nephew is neither an owner or a resident, but merely an occupant, and a very temporary one at that. Does that rise to proper consent of a search?

            1. Weed is legal for us, Paul. At least use a better example, like crack pipe smoke.

              1. Ok, fine… I’m downstairs posting a YouTube video criticizing Islam. Cops at the door saying the smell hate speech…

          2. I’m not sure this is true. In what other contexts is all-party consent required for invitation of another person onto one’s private residence?

            “Sorry honey, but by inviting your friend over to the house without my knowledge and consent you’ve made a criminal of yourself.”

            You can bet I’d contract with roommates to the effect they can’t let cops in without a warrant. Certainly I’d consider I have a verbal contract to that effect currently. (Not that it would be “legal.”)

          3. The friend isn’t there to arrest you.

      3. This isn’t about all parties having to consent. Current SCOTUS precedent basically says that if one occupant refuses, that refusal basically trumps consent. However, the Court has limited the refusal to being immediately present. Basically the refusing occupant must be at the threshold of the home refusing the search. The Court’s decision here pretty much upheld that standard while failing to extend the refusal to a later period of time when the refusing occupant is no longer present at the home.

    2. I think it comes down to whether consent is an “and” gate or a “nor” gate. I suppose a “nand” gate would mean entry, since two people refusing means they’re obviously hiding something.

      1. Meant XOR.

        1. Dammit, I’m done for the day.

          1. Require warrants to be written in hexadecimal.

        2. Do you mean OR? The truth table would look like this…

          A B | C
          0 0 .. 0
          0 1 .. 1
          1 0 .. 1
          1 1 .. 1

          This would imply that if neither gives consent, then no warrantless entry is allowed. If one or the other or both give consent, then warrantless entry is allowed.

          XOR would be

          A B | C
          0 0 .. 0
          0 1 .. 1
          1 0 .. 1
          1 1 .. 0

          Implying that if one or the other gave consent, then a warrantless entry would be OK. If both gave consent, then no search warrantless entry could take place. Since that isn’t the case, it has to be OR.

    3. I think the larger issue at play here is that Fernandez previously denied entry: does his denial still stand if he is absent? As you point out, it makes little sense to suggest that, say, my wife is legally in the wrong if she invites someone to our house without my knowledge.

      1. Yeah…yeah. I’m kind of with TIT and Paul here. I think the fishiest part of this case is the arrest of Frenandez for abuse on so little evidence. Other than that I’m having a hard time getting uppity. Not the same circumstances as Randolph.

        1. cops created situation of his absence.

          it sets a precedence of systemic abuse. its basically begging officers to abuse citizens.

      2. This is the precise issue in this case. Prior to this case, the Court has stated that an occupant may refuse a search even where another has consented, but the refusing occupant must be present and must basically be at the threshold of the home refusing the search. In this case, the police came to the home and one occupant (Rojas) consented and the other occupant (Fernandez) refused. This fits in nicely with prior court precedent. However, this is not the situation the case is about. The police came back a later time without a warrant when Fernandez was not there and received consent from Rojas to search. So the ultimate issue seems to be whether a prior refusal by an occupant carries to a future time when the refusing occupant is not present and there is a present occupant who is consenting.

    4. Of course, the reason he wasn’t there was because cops arrested him and took him away.

  8. How did they distinguish this decision from Randolph? Seems like pretty similar situations.

    1. I’m interested to know how they were able to peruse his effects for signs of criminal behavior outside of the domestic violence arrest, even with her consent to enter.

    2. I was wondering the same thing. From my reading of this post, it appears that both parties were present at the time, and literally contradicting each other on the spot.

      In the latter case, Fernandez was no longer on the premises when Rojas consented to the search.

      That’s my best guess.

      1. That is it.

        Q: what happens if a private party (i.e., not a cop) tries to enter a home at the objection of only one of the homeowners with the other objecting? IMO, this should determine whether the ruling was correct or not.

        1. Entering is not the same as searching.

        2. It appears that the answer is to drag the nonconsenting one outside.

        3. A: According to Georgia v. Randolph, the police can’t come in as long as any person objecting is within the home. In the case of Mr. Fernandez, he had been arrested and was no longer in the home and thus his objection was no longer valid.

      2. I think this case was dealing with the later situation where the police came back to the residence and once again asked for consent, but only Rojas was present and gave consent. So the issue was whether the prior refusal from a non-present occupant carries over and can contradict the consent of a present occupant.

    3. In this case, Fernandez said they could NOT come in, but Rojas said they could = the police can’t come in. THEN the police arrest Fernandez and take him away. Now the police go back and they only have to ask Rojas again (yes)= the police can come in. Possible bonus info, being that I’m not familiar with the details – but I imagine Fernandez went outside, which was a mistake. If he’d stayed inside, the police would have needed a warrant to come inside and arrest him. Don’t take my word as gospel.

      1. Typically the police need an arrest warrant to enter the suspect’s home to arrest him. Although, there are probably exceptions to instances like this where they have probable cause to believe an assault has taken place inside the home.

  9. Its what you would expect from Republican nominated judges. Looking forward to all the conservatives disguised as “libertarians” to weigh in on this one.

    1. Looking forward to all the conservatives disguised as “libertarians” to weigh in on this one.

      You’re in the right place.

    2. Looking forward to all the conservatives disguised as “libertarians” to weigh in on this one.

      Find one. Seriously, none of the conservative commentators identify as libertarians. Merely commenting on the site is not a disguise.

      1. Shh. They’re winding each other up.

        1. You out yourself.

          What gripes my ass about you is that cheer our neocon assholes on and escape the tax liability I have.

          1. What gripes your ass is that I kick it every chance I get. pWND

  10. So… let me get this straight:

    The cops come to an apartment looking evidence linking A to crime. A & B are both home and both refuse entry to the cops. Cops arrest A. Cops then threaten B with arrest if he doesn’t consent to search of apartment (and of course will deny later that they ever made the threat).

    This is now completely legal.

    1. …what?

      1. Was I unclear in the hypothetical? I apologize if I was.

        This opinion allows for massive abuse by the police. If all the police have to do is arrest someone (probable cause is the easiest standard to meet and we’re pretty much all guilty of something) and use his “absence” in order to receive “consent” to enter somewhere, they’ll abuse the sh*t out of this power.

      2. I think it’s a hypothetical. Or taking something to a logical conclusion.

    2. This is now completely legal.

      Yes, in the same sense that they can come to the apartment looking for the same evidence. A & B both refuse, so they beat the shit out of B, arrest A for domestic abuse, and search the apartment because “B said so.”

      When you do a bunch of illegal shit and successfully cover it up, it looks completely legal.

    3. It’s coerced. Police hold a gun to B’s head and . . .

    4. This is not the scenario that took place in this case. A consented and B refused. Police came back at a later time when B was not present and A once again consented. Consent has to be voluntary, it cannot be given under duress. However, as you say, proving it is a different matter when a jury is tasked with determining who is more credible police or suspect.

  11. 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 [sic] search in that instance?

    Sure…and anything they find incriminating the party that DID NOT give consent is inadmissible.

  12. I’d be fine with the search if anything found could only be admissible against Rojas.

    Alito, Scalia and Thomas all fucked up again because copcock tastes like Fruit Stripe.

    1. Pretty much.

    2. But you said copcock tasted like Doublemint!

      1. I said your mom tasted like a urinal cake. Not the same thing, Tardo the Wonder-Tard.

        1. So who is it that tastes like Dentyne, then? I’m so confused.

          1. I am not the cataloger of those whom you have tasted.

  13. What SF and FDA said.

  14. I also wonder at what tissue-thin probable cause they must have had if they had to arrest the guy and come back later rather than get a rubber-stamp warrant.

    1. This is my major concern with this. “Hey, do you realize that your broken screen door is a misdemeanor violation of City Code 1034.67(b)(iii)? We’ll have to take you in.”

      1. “And we’ll be back for you next, roommate. Unless you let us in.”

  15. This would be less problematic for me, if the cops would have asked questions of the battered party that would have given them cause to get a warrant. With the other party in custody, they had plenty of time to try and get the battered party to give enough info to get a warrant (which these days isn’t that hard to get even on the flimsiest of excuses) — She was already willing to consent to a search, and supposedly battered. It shouldn’t be too hard to get her to make incriminating statements against the alleged criminal that would allow a judge to authorize a warrant.

    The idea that we can just arrest the person who doesnt consent, and then come back and get consent from the other party seems likely to lead to a lot of “disorderly conduct” or other flimsy charges for non-consenters.

    I also find quite troubling the idea that once you’ve been refused entry, you can keep coming back when you think the person refusing isn’t there hoping to get someone who doesn’t know or doesn’t care ot refuse entry.

    These are reasons why I want warrants. Too much BS can be done to get around trying to legally gain access without a warrant.

    1. These are reasons why I want warrants. Too much BS can be done to get around trying to legally gain access without a warrant.

      These rights shall not be denied, unless there’s a compelling government interest.

  16. Also, I’d like to give a shout-out to Sotomayor, Kagan and little Ruthie Ginsburg. Ladies got our backs.

    1. Wait ’til next time.

      1. You’ve got to give credit where credit is due or they’ll never learn.

    2. You kidding? Kagan hasn’t had much of a history yet, but the other two are the biggest statists you can ever hope for.

      1. The rest get it wrong all the time too. This time those three got it right.

  17. Hmm…so if I can find one janitor willing to let me into the Supreme Court building, it’s cool for me to go on in?

  18. Off the top of my head, there are a lot of complicated property situations where all owners of the property are not available or reachable.

    So get a fucking warrant.

    Was that so hard?

    1. I find this a pretty compelling argument. If consent is muddied, then the consent exception is invalid, and we’re back to the warrant default.

      1. Agreed, a single instance of consent being denied should be sufficient to completely remove the consent exception from validating the search

        1. Seconded…or thirded? And this is how it seems to work anyway.

          Besides, it’s not like obtaining a warrant is that difficult, really.

  19. Why are the liberal justices so anti-women?

    < /snark

    1. Well, they were trying really really hard to be homophobic for this case, but it turned out both the guy and gal were straight.

      It’s in the hierarchy of hate.

  20. There only one solution to the case of searching that gets rid of warrants or probable cause or reasonable rationales altogether. This is related to what SugarFree mentioned above regarding limiting the evidence admissible from search.

    The following is first predicated upon recognizing true criminality as violations of property rights (or self-ownership). Essentially crime would be treated as tort as opposed to violation of positive law.

    The principle is that all searches, and police action in general, should be speculative. True criminals would loose their rights until restitution is made. Thus, if you search someone’s property AND they turn out to be a true criminal, then no problem.

    However, if you search, and you turn out to be wrong, you have now committed a crime yourself. It doesn’t matter if you’re the police, or any state agent.

    So if you strongly suspect Fernandez beat his girlfriend or robbed someone, go ahead and search. But you had better be pretty confident. It’s just like the free market, but instead of price signals you have intelligence signals. There are risks if you make the wrong decision.

    1. The idea of speculative action that is judged according to principle is critical because with the current system, merely “following procedure” or having a judge approve, which more often than not results in rubber stamped warrants, gives you immunity for any action.

      1. *seems* reasonable until you realize criminal informants who are bankrupt would “bankroll” police abuse.

        They would be the equivalent of a revolving door of human shields.

  21. This ruling doesn’t seem catastrophic, but it certainly stinks.

    This iteration of the supreme court has an alarming tendency to let the police trample of the rights of the pawns. Highlighted by them ruling that dogs are infallible and always serve as probable cause. ANY dog trainer will tell you that’s far from the truth.

    1. Seconded. I agree – that the principle of “seeing crime in action/seeing physical result of crime” may prompt a search due to timely circumstance BUT certain peace officers tend to take those to extremes.

      The SC might be extreme literalists for this case in particular, but it’s going to set a stupid precedent.

      New police MO: “Oh look – a guy parking his car! That model of car is frequently stolen, therefore it’s stolen! Logic!”

    2. Well, the idea that they can avoid leaving an official paper trail doesn’t make me feel good.

  22. seems like there are some typos in this article?

  23. Ginsburg, Sotomayor, and Kagan voting to defend the fourth amendment? I need to re-examine my assumptions about our justices.

  24. Oh look once again Republican appointees take a butcher knife to the Bill of Rights. Good thing Republicans still support tax cuts for billionaires, otherwise libertarians might have to stop fellating them at every opportunity.

    1. I will stipulate that the conservative SCOTUS judges are not die-hard libertarians, but sometimes defend libertarian principles.

      If you want to pretend that the liberal SCOTUS judges are always die-hard libertarians, go ahead and try.

      The three chicks got it right this time. Credit where credit is due.

    1. Ah, the Supreme Court. Sometime I wonder if they just have a wheel in the back somewhere that each Justice spins for their opinion. They seem to be the most ideologically inconsistent bunch…

    2. Any case that involves a lawyer getting paid and you can throw political persuasion, logical reasoning and the law, out the window.
      Rare is the case where a judge will deny their, former, colleague a paycheck.

      1. In the case he’s referring to, the criminal D’s rejected claim would have allowed the lawyer to get paid…

  25. Anything that weakens our Fourth Amendment dealing with warrants is bad. It is the reason NSA serves as a repository for every sound or movement a citizen makes. So Sad. The Soviet Union’s Beria would have applauded.

  26. considering I will be making the 92nd comment, I do not know why I bother, but here goes…. Roxanne Rojas was identified as Walter Fernandez’s girlfriend. While I know that some do, I would argue that most people do not put their boyfriend/girlfriend on the lease(assuming they are leasing the place). By doing this, when the person on the lease wishes to end the relationship, the non-leasee(sp?) gets kicked out. So, who was on the lease? Was Roxanne Rojas the legal resident or was she the guest? Was Walter Fernandez the legal resident or was he the guest? I feel this is a very important question because if a guest can override the owner and permit the police to search your premises, what is the point of owning a dwelling? If the guest can override the owner and permit the police to search, then what is stopping the police from having girls dress up as Girl Scouts and as soon as the owner lets the Girl Scout in the Girl Scout holds the door open and says, “come on in police”. Call me paranoid, but I will ask again, if a guest can override the owner’s denial, then what is the point of owning a place. If my daughter invites her boyfriend in the house and I tell him to leave, can the police say that my daughter’s invite overrule my refusing invite?

    1. You must not be familiar with localities with strong “renter’s rights”.
      I know a man, who was forced to leave the home he OWNED, because the guest he allowed to stay with him invited friends to live there also and became “legal residents”, though they never paid rent or had any kind of understanding with the owner.

    2. Finally, someone asking a VALID question.

  27. What if the cops would have simply decided to take the property to give to, I dunno, Pfizer? Then Ginsberg would have been ok with it.

  28. What?!?!?! So the Supreme Court basically “Eh, to hell with a warrant, police can do whatever they feel.”. And I’m frankly shocked the three dissenting justices are Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Meaning the majority was along with the author Samuel Alito, Antonin Scalia, Anthony Kennedy, Chief Justice John Roberts, Steven Breyer and Clarence Thomas. I would’ve thought if I hadn’t seen who were the justices would’ve been organized as majority; Roberts, Kennedy, Breyer, Kagan, Sotomayor, Ginsburg and then dissenting Thomas, Alito and Scalia. Very disappointed with the usually reliable justices particularly Alito, Scalia and Thomas.

    1. I think the come to these distributions based on Parcheesi contests.
      They’re all statists in the end.

    2. It’s NOT “to hell with a warrant.” Anyone can let the police search their house without a warrant. I can. you can. If scumbag is in jail, his wife is there. She can grant the search. This is almost a non-story.

  29. Clearly people with Mexican sounding names have no inalienable rights and can be presumed to be guilty criminals. Case closed.

  30. I’m surprised this went to court. Once the suspect is arrested, the police generally can search the area under immediate control of the suspect. Then as soon as he’s removed, the remaining occupant exercises sole control of the estate and can grant consent to search without a warrant. Seems pretty clear-cut.

  31. I think the author of this article misunderstood the case. Prior SCOTUS precedent has said that if one occupant refuses but the other occupant is at the threshold refusing the search, the police must obtain a warrant. However, in this case, the police came back when the refusing individual was not present, and the consenting individual once again consented. So the ultimate issue came down to whether the police have to obtain a warrant when a non-present occupant has previously refused and a present occupant is consenting. Of course this case once again shows the Court’s acquiescence to police. The majority noted that it would be too burdensome on police and a magistrate to obtain a warrant in this instance. What about the burden of the citizens?

  32. Interesting, so now there’s a way for the corrupt or biased to avoid leaving a paper trail.

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