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Refusing Consent to Warrantless Search - Not Always Enough


In a recent decision, Fernandez v. California, the Supreme Court of the United States (SCOTUS) held that if an occupant refusing consent to a warrantless search of a residence is removed from or leaves the scene, the police can subsequently obtain consent from from another occupant and conduct a search of the property without a search warrant.

Fernandez v. California

In this case, police observed Fernandez, a suspect in a robbery, run into an apartment.  A female, who appeared to have just been assaulted, answered the door and police requested permission to search for the fleeing suspect.  Prior to obtaining a response from the female occupant, Fernandez appeared at the door objecting to the police entry and search of the premises.

Fernandez was then taken into custody by police.  After he was removed from the scene, an officer returned about an hour later without a search warrant and obtained consent from the female occupant.  Incident to the consensual search, the police recovered evidence linking Fernandez to the crime.

The defense filed a suppression motion arguing that the search of the apartment over Fernandez's objection was a violation of his Fourth Amendment right to be free from illegal searches and seizures.  On appeal, our nation's highest court held that when an objecting party is no longer 'physically present,' the police may then obtain consent from another occupant and conduct a valid, warrantless search of the premises.

Warrantless Searches of a Home

Absent certain limited exceptions, police are required to obtain a warrant before searching a private residence.  One exception to the warrant requirement is:  Consent.

Based upon a history of case law, police can obtain consent to search a home from a resident or person possessing common authority.  The consent by one party is valid against a party who is not present at the time.

As observed in Fernandez, the issue becomes more tenuous when multiple occupants with common authority are present and both parties do not consent.  Prior to this case, the Supreme Court of the United States had held that 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."  Georgia v. Randolph.  Clearly, the distinction between Fernandez and Randolph is the 'physical presence' of the objecting inhabitant at the time of the others consent.

This decision was founded on the Fourth Amendment.  The primary purpose of the Fourth Amendment is deter police misconduct.  While one could reasonably argue that this decision simply allows the police to do an end-run around the Fourth Amendment, this Supreme Court would probably say the holding, nonetheless, upholds its primary purpose.

Unlike the Fourth Amendment, the twin aims of Article I, Section 8 of the Pennsylvania Constitution (our state's equivalent to the 4th Amendment) are "the safeguarding of privacy and the fundamental requirement that warrants shall only be issued upon probable cause."  Commonwealth v. Edmunds.  Time will tell whether this is the distinction that needs to be made to prevent further erosion of our right to be free from unreasonable searches and seizures in Pennsylvania.

Protecting Your Rights Against Illegal Search and Seizure

When you have been charged with a crime as a result of a search of you or your property, you need an experienced Pennsylvania Criminal Defense Attorney who is knowledgeable in the laws surrounding both state and federal search and seizure issues.

Contact Harrisburg Criminal Defense Lawyer Shawn Curry today. 

Shawn Curry Law is Helping People accused of crimes throughout Central PA.

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