Law Enforcement Can Search a Shared Residence Even When a Co-Tenant Objects

In the recent case of FERNANDEZ v. CALIFORNIA, 12-7822 (February 25, 2014) the U.S. Supreme Court held the Fourth Amendment to the U.S. Constitution was not violated and, therefore, law enforcement can make a warrantless search of a shared residence when a co-tenant provides consent even though the other co-tenant shortly before refused to allow a search.

The general rule as to searches of a residence is that any occupant may provide consent to a search of the premises. Also, searches are considered reasonable and, therefore, deemed permissible without a warrant when the consent comes from the sole occupant of the premises However, when an inhabitant is physically present and refuses to consent to a search, that refusal is deemed legally dispositive, regardless of the consent of a fellow occupant.

Here, the U.S. Supreme Court created an exception and distinguished earlier case law that held the police cannot use any evidence seized as a result of a lawful arrest that takes place when there is a warrantless search performed immediately after a co-tenant refuses to allow a search, even though a co-tenant consents, relying upon the facts in the within case that the objection was made by an occupant that was no longer on the premises.

Some commentators have expressed outrage at the opinion as it would mean law enforcement can only initiate a consensual search if an objecting co-tenant is not standing at the door declaring the police cannot come inside and should stay out. Proponents in favor of the current opinion state the distinction in the current Supreme Court holding is the fact the objecting co-tenant was not present at the exact time a co-tenant gave consent. Nonetheless, defense attorneys would argue these distinctions are illusory since it would mean the police could come back a few minutes after they were told they could not search the premises and do so without a warrant as long as another occupant gave consent. They further contend this ruling makes it easier for law enforcement to search a residence without a search warrant when there are simple procedures for them to first obtain a search warrant. Lastly, those who object to the Court ruling believe it is a further example of the erosion of our civil liberties and right to be safe and secure in our homes without government intervention &/or intrusion.

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