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Roommate Can Consent to Warrantless Search of Residence Over Objection of Non-Present Occupant

In a 6-3 decision, the United States Supreme Court this week ruled that, in a limited set of circumstances, police officers can conduct a warrantless search of a person's residence over that person's objection, if another occupant consents to such search. The facts of California v. Fernandez are somewhat unique and, as a result, the Fernandez decision may have limited application. Nonetheless, the language of Fernandez implies it may have a significant impact upon the way police officers obtain consent, namely, by separating the home's occupants and "persuading" the weakest link to consent to a warrantless search. After Fernandez, all occupants should make clear their refusal to consent to a warrantless search or risk having a court declare items seized to have been lawfully obtained. 

In Fernandez, the accused was arrested for a assaulting his roommate. Immediately upon encountering the police at his home, Mr. Fernandez told them, "You don't have any right to come in here. I know my rights." After Mr. Fernandez was arrested and removed from the scene, and suspecting Fernandez had earlier been involved in an armed robbery, police returned to the home approximately one hour later. At that time, they obtained the written and oral consent from the roommate to conduct a search, which led to evidence tying Fernandez to the earlier armed robbery.

On review, the United States Supreme Court concluded the search was lawful. Recognizing its earlier opinion of Georgia v. Randolph (holding consent of one occupant is insufficient when another occupant is present and objects to the search), the Court held a warrant was not necessary prior to a search of Mr. Fernandez' home. The determinative factor for the Court was Mr. Fernandez' absence from the scene, noting, "Denying someone in Rojas' [the battered occupant's] position the right to allow the police to enter her home would also show disrespect for her independence. Having beaten Rojas, petitioner would bar her from controlling access to her own home until such time as he chose to relent. The Fourth Amendment does not give him that power." (Emphasis in original).

Reading Randolph and Fernandez together, it seems clear that a present occupant can refuse to give consent even if a co-occupant consents. Once the occupant is removed from the scene, however, consent to search by the co-occupant will permit the police to conduct a warrantless search of the home. Whether police can unlawfully remove a person from their home in order to obtain co-occupant consent remains unanswered by these decisions. In any circumstance, all occupants should make clear their refusal to consent to a warrantless search regardless of whether one or all occupants have been removed from the home.

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