This article was first published at the McAlvany Intelligence Advisor on Friday, February 28, 2014:

On the surface, the Supreme Court’s ruling on Tuesday in Fernandez v. California seems pretty innocuous. Only when the details are examined does it become clear that the has been compromised further. Officially, the ruling is that when a resident who objects to the search of his residence is removed through a lawful arrest, the remaining resident may give police consent to search without first producing a warrant.

Before Tuesday, the court consistently held that anyone objecting to a search would be sufficient for police to obtain a search warrant, even if others in the residence might disagree. In other words, before Tuesday it took just one who knew his rights under the to be able effectively to defend them. That is no longer the case. If anyone agrees to a warrantless search of a residence, that search may proceed, regardless of protestations by anyone else present.

That’s an opening police are sure to seize.

Here’s the back story: Fernandez robbed a citizen near an ATM in downtown Los Angeles in 2009, beating him and taking the $400 he had just withdrawn from the machine. Fernandez then ran back to his apartment to hide from the police. When police arrived at his apartment, his wife opened the door. Fernandez shouted: “You don’t have any right to come in here! I know my rights!” The police, however, noticed that his wife had fresh bruises on her face and blood on her shirt, and arrested Fernandez on suspicion of domestic violence. They returned to his apartment an hour later to search for evidence relating to the robbery, without a warrant. Fernandez’ wife let them in and they found enough evidence to send up Fernandez for fourteen years.

During his trial Fernandez tried to quash that evidence, claiming that his rights had been violated. The court sided with the police and Fernandez appealed. Each court up the chain sided with the police until the case finally arrived at the Supreme Court, which affirmed the lower courts’ decisions.

The case was decided 6-3, with all five so-called conservatives in the majority along with Justice supporting the police, but with the three female notably (and usually) justices Ginsburg, Sotomayer and Kagan dissenting. In the published opinion, it was the liberals teaching the conservatives about the Constitution, the Bill of Rights, the Fourth Amendment, and their limitations on the police power that the court just expanded.

Writing for the majority, Justice Samuel Alito tried to explain the court’s overreach. One has to step carefully around his words to see what is really going on. First, he explains how the court ruled in the past:

Our [previous decisions] firmly establish that police officers may search jointly occupied premises if one of the occupants consents. [But] our opinion in Georgia v. Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present….

While consent by one resident of joint-occupied premises is generally sufficient to justify a warrantless search, we recognized a narrow exception to this rule in Georgia v. Randolph….

[In that case] the Court held that “a physically present inhabitant’s express refusal of consent to a police search [of his home] is dispositive [translation: resolves the issue in his favor] as to him, regardless of the consent of a fellow occupant.

Translation: anyone present may object, in which case the police would have to retire and return only when and if they were able to obtain a genuine search warrant signed off on by a judge. On Tuesday, that “firmly established” rule was overridden by expediency.

After dismissing all arguments Hernandez presented, including the fact that he hadn’t changed his mind regarding his refusal to permit a search following his arrest and that his mere absence (due to his arrest) from his residence didn’t change the law, Alito explained that applying Randolph in this specific case would have worked an excessive burden on the police investigating the robbery, and besides,

The lawful occupant of a house or apartment should have the right to invite the police to enter the dwelling and conduct a search. Any other rule would trample on the rights of the occupant who is willing to consent.

This obvious and blatant expansion of police powers enraged the liberals! In a stunning objection by the three, penned by Justice Ruth Bader Ginsburg, they taught the conservative majority the basics of Constitutional Law 101. Starting by quoting the Fourth Amendment, Ginsburg noted that, in the past, the court has applied the language strictly to mean exactly what it says:

That whenever practical [the police must] obtain advance judicial approval of searches and seizures through the warrant procedure … The warrant requirement, Justice [Robert] Jackson observed [in the 1948 decision Johnson v. United States], ranks among the ‘fundamental distinctions between our form of government, where officers are under the law, and the police state, where they are the law.’…

The Court [in the past] has accordingly declared warrantless searches, in the main, “per se unreasonable.”…

If this main rule is to remain hardy, the Court has explained, exceptions to the warrant requirement must be “few in number and carefully delineated.”

But now, with the removal of the restriction noted in Randolph, the police are free to search without warrants as long as someone present in the residence agrees, regardless of whether another resident who is absent at the moment, feels or has objected in the past. Ginsburg nailed it:

Instead of adhering to the warrant requirement [in the Fourth Amendment], today’s decision tells the police they may dodge it.… Suppressing the warrant requirement, the Court shrinks to petite size our holding in Georgia v. Randolph….

Where shrinks, the police power expands.

Ginsburg even noted in a footnote that she expects police to take full advantage of the opening in the future: “Today’s decision … provides police with ready means to nullify a co-tenant’s objection.”

For the first time in recent memory, those in the fight wish that the conservative majority would listen more carefully to the minority before deciding to emasculate further precious rights guaranteed by the Bill of Rights. In the meantime, informed observers would be wise to assure that every resident demands a search warrant before allowing police entry, thus keeping shut the door the Supremes have now opened.



Los Angeles Times: Supreme Court ruling expands police authority in home searches

Los Angeles Times: Supreme Court sides with LAPD in warrantless house search

Reuters: Supreme Court ruling eases police search of suspect’s home

CBS: Supreme Court To Allow Searches Without Warrants When Occupants Dispute Entrance

NBC News: Supreme Court Allows Disputed Home Searches Without Warrant

Daily Kos: SCOTUS Weakens Search Warrant Requirement for Homes

Huffington Post: Supreme Court Makes Big Decision On When Cops Can Enter Your Home

The ruling in Fernandez v. California

USA Today: Supreme Court allows search despite tenant’s objection

Definition of the word “dispositive”

Fernandez v. California

Georgia v. Randolph

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