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Media > Newsletters > Law Enforcement Bulletin > June 2014 > Warrantless Search (Consent from Co-Occupants): Fernandez v. California

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Warrantless Search (Consent from Co-Occupants): Fernandez v. California

The U.S. Supreme Court recently issued an important ruling in favor of law enforcement that expands the authority of officers to get consent to search premises after a lawful arrest. Fernandez changes the landscape of consensual searches in situations in which one co-tenant, who is present on the property, agrees and the other, who is not present, objects to the search.
Fernandez v. California, U.S. Supreme Court, Feb. 25, 2014
Facts: Police officers watched a suspect in a violent robbery run into an apartment building. They then heard screams coming from inside. The officers knocked on the door, which Roxanne Rojas answered. She appeared to be battered and bleeding. The officers asked her to step out so they could do a protective sweep when Walter Fernandez appeared and objected to their entry. Suspecting Fernandez had assaulted the woman, the officers arrested him for domestic violence, unrelated to the suspected robbery. At the station, Fernandez was identified as the individual from the robbery. The officers returned to the apartment a few hours later and received Rojas’ consent to search it. Inside they found several items linking Fernandez to the robbery. Fernandez filed a motion to suppress because he, as a co-occupant, objected to the search prior to his arrest.
Importance: When two or more people share a premises, it only takes one of them to deny you entry. But what happens when the one who denied you entry is no longer physically present? In this case, Fernandez argued the search was improper because he had already denied entry. But the court found that once Fernandez was no longer on the property, the remaining tenant could give consent to search. Under Fernandez, the important factor is whether the person is physically present when you make the request. If the person is not present as a result of a lawful detention or arrest, that person is absent just like any other absent co-occupant and the exception does not apply. 
Keep in Mind: The cops in this case had a legitimate reason to arrest Fernandez. They saw obvious signs of domestic violence, and they arrested him for it. In the wake of this case, you can expect that courts may look at these kinds of arrests with a skeptical eye if it looks like you’re just arresting someone to get them out of the house.  
One Last Thought: This case does not change the rule that the co-occupant must have common authority over the area to be searched in order for the consent to be valid. In U.S. v. Peyton, a great-great-grandmother and her adult grandson shared a one-bedroom apartment, and the lease was under both names. The grandson used the living area as his “room” and stored personal items under his bed. The grandmother was able to give permission for the police to search the common areas of the apartment, but was not able to give consent for the officers to look under the bed and search the contents of shoeboxes, where they found marijuana. U.S. v. Peyton, D.C. Appellate Court, March 21, 2014
More on Warrantless Search
I know you have marijuana, so I’m coming in! You arrive at the home of an alleged marijuana grow operation and meth lab to conduct a “knock and talk.” As you head to the door, four officers take positions around the perimeter of the home, on its property. After you knock and tell the two occupants why you are there, one of the occupants immediately closes the door. You are informed by your backup that marijuana plants are sitting on the rear deck of the home (which is not in plain view). You knock again and ask, through the door, for the occupants to come out. You hear someone inside say, “Hang on.” At this point, you open the door and go in based on the exigent circumstance of the marijuana. Was entry into the home proper without a warrant? The court in Morgan says no. Although the “exigent circumstances” rule is an exception to the warrant requirement, in this case the exception did not apply because knowledge of the plants came from an unconstitutional entry onto the property. Performing a knock and talk does not allow law enforcement to enter private property without a warrant. State of Ohio v. Morgan, Fifth District, Fairfield County, May 1, 2014