Can the Police Search Your Home Without a Warrant?


In 2014, the United State Supreme Court limited the general rule that warrantless searches cannot proceed if one occupant objects to the search. In Fernandez v. California, the Court held that if an objecting occupant is removed or leaves the premises after a request to search, police can gain consent from the remaining occupant. Before Fernandez, if the police arrived at a home and two occupants were present, both had to consent to a police search. An objection by one occupant would require the police to 1) leave, 2) show a judge that they had probable cause to search the home, and 3) return with a warrant. Now, under Fernandez, the police merely have to wait until the objecting person leaves the premises (or is lawfully removed from the premises) to obtain the consent of the remaining occupant and proceed with the search.

Fernandez v. California: Search Without Consent

In Fernandez v. California, Fernandez robbed a man at knifepoint and ran back to his apartment. Police later tracked him to the apartment, heard screaming inside, and knocked on the door. When Fernandez’s live-in girlfriend answered, the police saw that she had fresh bruises and blood on her face. Police asked to search, but Fernandez appeared and objected to any search without a warrant. Police then arrested Fernandez based on suspected domestic violence and booked him at the local police station. An hour after Fernandez’s arrest, police went back to the apartment and asked the girlfriend a second time if they could search the premises. She consented. During the search, police found not only illegal weapons but also evidence linking Fernandez to the aggravated robbery. At trial, Fernandez was found guilty and sentenced to 14 years in prison. The trial court, appellate court, and ultimately the United States Supreme Court all held that the warrantless search was valid, despite Fernandez’s initial objection to the search when the police arrived.

The Court reasoned that the girlfriend’s later consent negated Fernandez’s earlier objection to the search since Fernandez was no longer physically present in the apartment due to a valid arrest. As a result, the police could rely on the general rule allowing sole occupants to consent to searches. Moreover, Fernandez’s argument that his objection to the search lasted through his arrest was not practical, since the scope and duration of his objection could potentially last years, creating more problems than answers in this area of the law.

The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Emphasis added.)

There are two aspects of the Fourth Amendment: 1) a prohibition on unreasonable searches and seizures, and 2) a requirement that warrants be supported by probable cause as determined by a neutral third party (a judge). The focus of Fernandez is on what constitutes a “reasonable” (and thus, permissible) warrantless search or seizures.

The Fernandez opinion does not deal with arrests made made with the sole purpose of removing the objecting party from the premises so that the remaining party can consent to the search. Fernandez’s counsel did not challenge his underlying arrest for domestic violence, allowing the Court to reaffirm earlier dicta that as long as the arrest was “objectively reasonable,” the search could proceed based on the remaining occupant’s sole consent.

As a whole, Fernandez leaves unanswered some serious issues that could play out on your doorstep. How much “physical presence” is required for your objection to count? Does it matter if the person is at the door, in the house, or out in the backyard? Could an adult child give consent to search while a parent is in the home elsewhere, unaware that police are at the door? Fernandez, while narrow in its holding, might be telegraphing this Court’s position on criminal procedure in general than its regard for the specific rights of the accused.

For the full opinion, see: Fernandez v. California, No. 12-7822, 2014 BL 49904 (U.S. Feb. 25, 2014).

Can Your Roommate Give the Police Consent to Search Your Home After You Refused to Allow Them to Search?

The police must have one of several things to enter and search your home: probable case as established in a search warrant, exigent circumstances such as a dangerous and emergent situation, or consent.  It is well established that any person with the apparent authority may provide law enforcement with consent to search your home.  That means a roommate, significant other, spouse, or even a visitor could allow police to enter your home.
However, according to the Supreme Court of the United States in Georgia v. Randolf, if you are also present at the home at the time when consent is provided, you may object to the search and require the police exit the premises and return when they have a valid search warrant.  Interestingly, however, you must be present at the time of search for your objection to stand.

In Fernandez v. California, a suspect denied law enforcement consent to search his residence. He was arrested and transported to the local jail.  The police then returned to the residence and asked his roommate for consent to search and the roommate agreed.  The Supreme Court of the United States reviewed this case and determined, that despite the defendant’s objection, another occupant could consent to search of his residence in his absence.

Should You Give Consent to Search?

Think for a moment about how many people enter your home or vehicle. It is virtually impossible to know what a thorough search of your home or vehicle would reveal. If police officers have probable cause to believe a criminal act has occurred, they will obtain a search warrant for the home or vehicle they wish to search. There’s simply not a reason to provide consent to search without a warrant.
Moreover, a search warrant is something that an experienced criminal defense attorney can review and potentially challenge in court. Consent, on the other hand, is very difficult to overcome.
If your home or other property is subjected to search, you will want legal counsel present to advise you.  Only attorneys who are experienced in search and seizure law can fight to suppress any evidence police obtained during an illegal search of your home or property.  Without such evidence, your criminal case could be reduced to a lesser charge or dismissed altogether.  If not, you will need the best criminal trial lawyers in Tarrant County to fight your case to a jury.  Call Varghese Summersett PLLC at 817-203-2220 or contact us online.
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