The U.S. Supreme Court ruled Tuesday that police may search a home without a warrant if one person who lives there consents, even if another occupant has previously objected. The 6-3 decision would seem to seriously undercut a 2006 high court ruling that barred warrantless searches of a home where the occupants disagreed on giving consent.
In 2006, the justices, by a close vote, ruled that when two occupants of a home disagree about whether to allow police to conduct a warrantless search, the police must defer to the person who objects. But now the court has ruled that when the objecting occupant is no longer there, his objections are no longer valid.
The decision came in the case of Walter Fernandez, suspected in a gang robbery and assault. Police, looking for the robber, entered an apartment house and heard screaming from one apartment. When they knocked on the door, Roxanne Rojas answered.
She appeared to be crying, had a bump on her nose and blood on her shirt. She agreed to let the police search the apartment, but at that point Fernandez stepped from the back of the apartment wearing only boxer shorts. He told police they had no right to search the apartment; he was refusing consent.
Police, suspecting domestic violence, then arrested Fernandez and took him away. An hour later, they returned, without a warrant, and got Rojas' consent for the search in writing. They found a sawed-off shotgun, ammunition, gang paraphernalia, and clothing that matched the description of the robber's clothes.
Fernandez was subsequently convicted and sentenced to 14 years in prison. He challenged the conviction, contending the evidence against him had been obtained through an illegal police search.
On Tuesday, he lost. Writing for a six-justice majority, Justice Samuel Alito said that while police may not override a home dweller's objections to a warrantless search when the objector is physically there, when he or she is gone, those objections are no longer valid if another occupant consents to the search.
"It's a body blow to the court's prior holding," said Stanford Law professor Jeffrey Fisher, who represented Fernandez in the Supreme Court. "The court's opinion seems to be quite clear that the police can either remove somebody from the premises" by arrest, or some other method, "or simply wait until the person isn't around anymore."
George Washington University law professor Stephen Saltzburg observes that cases of disagreement between home occupants are relatively rare because it's unusual that police find everyone at home when they come to the door. Much, he says, depends on luck. "You have to be lucky enough to be physically present and able to object when the police ask for consent."
Dissenting from Tuesday's ruling were Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Writing for them, Ginsburg noted that the court has long required warrants for searches of a home, except in special and very limited circumstances. "Instead of adhering to the warrant requirement" in the Constitution, she said, the court's decision "tells the police they may dodge it."
In his majority opinion, Alito emphasized how the court's ruling respects a woman's autonomy. "Denying someone in Rojas' position the right to allow the police to enter her home would also show disrespect for her independence," he said.
The court's three female justices took particular umbrage, noting that the law clearly allows police to enter a home and remove a suspected abuser, "as happened here."
"The specter of domestic abuse hardly necessitates the diminution of the Fourth Amendment rights at stake here," they said.
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