Can Police Search My Home Without A Warrant?

US Supreme Court Further Erodes Protection Against Searches of Your Home without a Warrant

On February 25, 2014, the US Supreme Court made it even easier for police to search the homes of citizens without a warrant.  The distinct issue that had been raised prior was whether the police may search someone’s home when one of the occupants objects, but the other consents.

California V. Fernandez

The case in question is California v. Fernandez.  It was a 6-3 decision written by George W. Bush appointee, Samuel Alito. (During his confirmation hearings, his lack of respect for privacy was of critical concern.)

The others signing on to the decision were Roberts (W. Bush); Scalia (Reagan); Kennedy (Reagan); Thomas (Bush) and Breyer (Clinton).  Opposing this undermining of basic constitutional rights were Ginsberg (Clinton); Sotomayor (Obama); and Kagan (Obama).

California v. Fernandez, is the clever and disquieting answer by the police to the Supreme Court’s decision in Georgia v. Randolph.  In that case, the US Supreme Court held that if one of the occupants of a home objects to a warrantless search of their home, the police may not enter.  Seems like a simple enough rule to apply.

But, what if one of the occupant’s objects and the police really want to take a look inside the home?  

Well, why not arrest the occupant that is refusing to consent, get him away from the home and re-ask the person that remains?  Pretty clever, right?  I don’t know, but it seems like it’s the ask dad after mom has already denied you with the hope that you’ll get a better answer, only more sinister.

In Fernandez, the police were investigating a robbery; this investigation led them to Fernandez’s apartment.  Upon arrival, the police claimed to have heard “screaming and fighting” coming from inside.  Fernandez’s girlfriend answered the door and Fernandez shouted from within his apartment “I know my rights” and told the police they could not invade his privacy and enter his apartment to have a look around.  Because his girlfriend had some bruises, the police arrested Fernandez on their suspicion that he had participated in the robbery and had just committed domestic abuse.  After removing him, the police returned to Fernandez’s apartment an hour later.

The police, in an “unsavory” manner harangued Fernandez’s girlfriend to get her to give them her consent to search the apartment.  They even told her that if she did not consent, they were going to take her child away from her.  This coercion allegedly led to her giving “consent” to the police to search the apartment.  During their search of the apartment, the police found a sawed-off shotgun, gang related objects and other evidence.

The majority held that the consent by Fernandez’s girlfriend after Fernandez was removed was sufficient to pass constitutional muster; and significantly reduced its holding in Georgia v. Randolph (which provided the exception to the general rule that the police can rely on anyone that appears to have control over an apartment for getting consent to search). Now, the only time you, as a co-occupant of a home/apartment, can object to a search of your home is to be present when the police come calling; and, that your objection can be avoided by removing you from the house.  Of course, the majority was quick to warn the police not to remove people for the sole purpose of avoiding the 4th Amendment and held that the removal must be “objectively reasonable”, but that is a significantly more difficult argument to make than the one Fernandez was making.

The dissenting opinion was reviled at the manner in which the police pressured Fernandez’s girlfriend and asserted that the police should have gotten a warrant.  In all likelihood, however, the police acted this way because they believed they did not have probable cause to get a warrant.

So, in the end, the US Supreme Court has made the most basic of constitutional rights easily manipulated and subverted by the police.  Of course there were “interesting” hypothetical questions the majority rhetorically posed to themselves in order to bolster their argument (which, in my opinion are generally signs of the writer acknowledging the weakness of their position). An example of a hypothetical question was “how long would the objection last, 15 years?”  This is silly.  The police know they can obtain a warrant very quickly and easily.  So, one must assume that resort to these tactics is employed when they know they do not have a legal basis to obtain one.

I wonder what the US Supreme Court would have said if Fernandez had left a giant sign across the front of his house alerting all police that he was the resident and that they did not have his consent to ever search his home.  Should there be a list — like a do not call registry — that people can join in order to note their lack of consent to search their home?  These are equally ridiculous.  That is to say, the right to be free from police intrusion into our homes is the most fundamental right we enjoy.  Without it, all of our other freedoms become meaningless.  We have a constitutional method whereby police can enter your home and that is to make an application, based upon facts, to a judge for a determination. And of course, some needed exceptions have been made that permit entry under exigent circumstances.  But, to engage in unnecessary contortion to avoid and subvert basic rights is a shame.

About Hug Law PLLC

Matthew Hug is a criminal defense attorney in Albany NY with nearly ten years of experience. If you have been charged with a crime, contact Hug Law for a free case valuation!