I previously posted here about a case in front of the United States Supreme Court that deals with how far does the rule from Georgia v. Randolph extend. Recall that in Randolph, the Supreme Court confronted the question of what happens when one resident of a home (there it was the wife) tells the police it’s OK to search the house even if they don’t have a warrant, yet the other occupant (the husband) refuses to consent to a search. In that earlier case from right here in Georgia, the Supreme Court said it is not reasonable for the police to think they have the right to enter a home and search without a warrant if one of the occupants is right there on the scene and objects to the search. Two days ago, the Supreme Court issued its ruling in Fernandez v. California, which restricted this rule a bit. You can read the opinion here.
The facts in Fernandez are a little different than the case from Georgia. Mr. Fernandez shared his apartment with his wife. When the police came to the door, he refused them the right to enter, although she said it was OK. The police arrested Fernandez for other reasons, and later returned after he was in custody and asks his wife again if they could look in the apartment. She again consented, and they entered, searched, and found incriminating evidence.
Mr. Fernandez contended that his absence after he was carted off should not matter since it occurred only because the police had taken him away. There was language in the earlier Georgia case suggesting that consent by one occupant might not be sufficient if “there is evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection.” However, the Supreme Court got around this language saying they were referring to situations where it was not objectively reasonable for the police to remove the objecting resident. Because it was OK for the cops to take Fernandez away for other reasons, he was in the same position as an occupant absent for any other reason.
Fernandez also argued that the objection he made when the police first came to the door remained effective until he changed his mind and withdrew it. The Supreme Court ruled that this is inconsistent with the Georgia case in at least two important ways. First, it cannot be squared with the “widely shared social expectations” or “customary social usage” upon which the earlier ruling was based. Additionally, the rule proposed by Mr. Fernandez would create practical complications by adopting a “formalis[tic]” rule requiring that the scope of an objection’s duration and the procedures necessary to register a continuing objection be defined.
We sort of expect this ruling, but will continue to vigorously argue to protect our client’s rights in situations when the police enter and search without a warrant.