This past fall, the U.S. Supreme Court heard oral argument in a Supreme Court Litigation Clinic case, Fernandez v. California. In this case, the police came to the home of Clinic client Walter Fernandez to investigate suspicions of his involvement in a robbery. He objected to any search of his home without a warrant. The police then arrested him, took him away, and conducted a warrantless search anyway, relying on the consent of his girlfriend, who remained in the dwelling. In an earlier case Georgia v. Randolph (2006) (incidentally, one of the Clinic’s first successes) the Supreme Court held that the Fourth Amendment prohibits the police from conducting a search of a home based upon the consent of one resident when another resident is present and objects to the search. The issue presented in Fernandez v. California is whether the same prohibition holds when the police arrest and remove the objecting resident from the premises before obtaining consent from the other resident.
The State of California, backed by the federal government, argued that Randolph no longer applies as soon as the objector is no longer physically present. The Clinic countered on behalf of Mr. Fernandez that physical presence is not the talisman the State makes it out to be. Once a tenant invokes his right to privacy in his home, the police should honor that invocation unless and until they believe that the objector has changed his mind.
Professor Jeff Fisher, co-director of the Clinic conducted oral argument in this case on November 13, 2013, which was attended by the seven students who helped put together the Clinic’s briefs: Neil Sawhney, ’14; Sal Bonaccorso, ’15; Lydia Gray, ’15; Ali Karol, ’15; Kerrel Murray, ’14; Andrew Noll, ’14; and Kyle Rifkind, ’14.
Professor Fisher’s opening remarks to the Court summarize the Clinic’s argument: “The doctrine of third-party consent is best understood as establishing a rebuttable presumption. When the police arrive at a house at which multiple people live, they can assume, according to social custom, that if one person grants consent to enter, that person is speaking for everybody who lives in the dwelling. But when somebody is present and tells the police officer that he refuses consent, that presumption is reversed. Then when the police full well know that one person doesn’t have a delegated authority to speak for the others, they must respect the objection. And a failure to do so violates the Fourth Amendment.”
Jeff had several lively exchanges with the Justices while arguing on behalf of Mr. Fernandez. A full copy of the transcript can be found here. For a recap of the argument, please see Rory Little’s summary appearing in the SCOTUS Blog.