A 28-year-old California prison inmate who insists he was trying to leave the gang life behind him will have to serve out his term after a loss Tuesday at the U.S. Supreme Court that clarifies some rules governing police searches.
A tattooed veteran of a Los Angeles gang called the Drifters, or D.F.S., Walter Alberto Fernandez had challenged an October 2009 search of his apartment for which his girlfriend gave consent after he was taken into custody. In a divided ruling, the court said Tuesday that the girlfriend’s eventual consent was sufficient even though Fernandez himself had previously said no.
“The lawful occupant of a house or apartment should have the right to invite the police to enter the dwelling and conduct a search,” Justice Samuel Alito wrote for the court’s 6-3 majority. “Any other rule would trample on the rights of the occupant who is willing to consent. Such an occupant may want the police to search in order to dispel suspicion raised by sharing quarters with a criminal.”
A former federal prosecutor who’s been a consistent supporter of law enforcement in the court’s criminal cases, Alito further warned of “practical complications” if Fernandez’s refusal were to stand. Alito raised the scenario of a refusal to grant consent for a search lasting throughout a lengthy prison sentence, and he said requiring police to obtain a warrant imposed burdens on investigators trying to solve a crime.
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Pointedly, Alito further noted evidence that Fernandez had battered his girlfriend, Roxanne Rojas, before police arrived at their apartment.
“Having beaten Rojas, (Fernandez) would bar her from controlling access to her own home until such time as he chose to relent,” Alito wrote. “The Fourth Amendment does not give him that power.”
The Fourth Amendment prohibits unreasonable searches and seizures and provides that a warrant may not be issued without probable cause, but its text doesn’t specify when a search warrant must be obtained. No warrant is needed if consent is granted, leading to endless questions about what counts as consent.
In a 1974 case out of Wisconsin, the Supreme Court reasoned that the consent of someone else who shares “common authority over living quarters” could suffice. In a 2006 case out of Americus, Ga., though, the court cautioned that the consent of a fellow occupant couldn’t trump the refusal of someone who was present.
The decision Tuesday thus zeroed in on the circumstances of an individual who refuses consent for a search but then is no longer present; in Fernandez’s case, because he’d been taken into custody. The court’s three dissenters cautioned that police may now “dodge” an individual’s refusal to grant consent.
“In its zeal,” Justice Ruth Bader Ginsburg wrote, “today’s decision overlooks the warrant requirement’s venerable role as the bulwark of Fourth Amendment protection.”
Ginsburg, writing for herself and Justices Sonia Sotomayor and Elena Kagan, raised a host of puzzling scenarios that might next face police and, eventually, courts, including questions of how long someone must be absent before his or her refusal loses force.
“Are the police free to enter the instant the objector leaves the door to retire for a nap, answer the phone, use the bathroom or speak to another officer outside?” Ginsburg questioned.
Fernandez had been gone for about an hour before police returned to his apartment. They were investigating a robbery in which four men had knocked a victim to the ground, beaten him and stolen $400. After hearing screams from an apartment, and seeing evidence that Rojas had been beaten, the police took Fernandez into custody. He’d told police, “You don’t have any right to come in here,” but once he was absent police returned to the apartment. After about 20 minutes, reportedly after being threatened with the loss of her children, Rojas consented.
In the apartment, during a search that lasted two to three hours, the police found Drifters gang paraphernalia, a butterfly knife and ammunition, and Rojas’ 4-year-old son directed them to a hidden sawed-off shotgun.
Fernandez is incarcerated at High Desert State Prison, which holds high-security and medium-security inmates in a remote Northern California county. He’s serving a 14-year sentence after pleading no contest on firearms charges and being found guilty of robbery and infliction of corporal injury.