On Tuesday the Supreme Court decided Fernandez v. California (opinion here), which reassessed the government’s right to search jointly occupied premises based on one of the occupant’s consent. Government agents are generally required to obtain a warrant prior to searching a home. In Georgia v. Randolph, 547 U.S. 103 (2006), the Supreme Court limited this right and held that police officers could not search a home based on an occupant’s consent where another occupant is present and objects to the search.
Fernandez presented a variation of the Randolph fact pattern. Initially, one occupant consented to a search of the home while the other occupant, Fernandez, refused consent. Under Randolph, the police did not have the authority to conduct a consent search at this point. The police ultimately arrested Fernandez, however, and removed him from the premises, thereby leaving only the consenting occupant present at the home.
After taking Fernandez to the police station, police officers returned to the premises, obtained consent from the remaining occupant, searched the home, and discovered inculpatory evidence against Fernandez. Fernandez challenged the search and attempted to suppress the evidence under the Fourth Amendment and Randolph.
The Supreme Court held that this fact pattern did not violate the Fourth Amendment and that Randolph’s “narrow exception” did not apply since the objecting occupant was no longer “physically present” on the premises. Considering that the objecting occupant was only no longer physically present because the police arrested him and removed him from the premises, this opinion raises a number of interesting questions. Volokh Conspiracy has additional commentary here.