The Questions That “Presence” Presents


By: Katie Dod 
The Supreme Court recently further defined when law enforcement may enter a home pursuant to the consent of one resident of the home without violating the constitutional rights of other residents.  It has long been established that the police may enter a home and conduct a search with the consent of any resident, or even reasonably perceived resident, of the home.  United States v. Matlock, 415 U.S. 164 (1974); Illinois v. Rodriguez, 497 U.S. 197 (1990).  In 2006, the Supreme Court narrowed this rule by deciding that police could not enter and conduct a search upon the consent of one resident when the other resident was present and objecting to the search.  Georgia v. Randolph, 547 U.S. 103 (2006).
The Court recently provided further clarity about the extent to which a co-resident’s objection can preclude a search of the home in the case of Fernandez v. California, No. 12-7822. 

In Fernandez, a robbery suspect was believed to be in a home from which police heard a woman screaming.  The police knocked and when the woman, Rojas, opened the door it appeared she had been the victim of domestic violence.  Soon thereafter, Fernandez appeared and denied the police access to the home.  At this time police arrested Fernandez for suspicion of abusing Rojas.  About an hour later, the police obtained oral and written consent by Rojas to search the home at which time incriminating information was located.  A divided court refused to suppress this evidence finding the search constitutional and the consent granted by Rojas to be effective.  The key distinction made by the Court between Randolph and Fernandez was the presence (or lack thereof) of the objecting resident.  In Randolph, both residents were present and were providing conflicting instructions to the officers.  In Fernandez, at the time of Rojas’s consent, Fernandez had already been arrested.  The Court affirmatively rejected Fernandez’s argument that his initial objection precluded a consent search after his departure via arrest.  The Court noted that such a holding would raise several unworkable issues such as the length of time an objection would be valid (could it last for years), how the police would be notified of the previous objection (would a sign need to be posted on the front door), and how the police would determine the current residency status of the objector so as to determine if the objector actually had a legal right to object.  While Fernandez provides some clarity to officers about the constitutionality of various searches performed without full consent of all residents, as the dissent points out, questions remain unanswered.  How long must the objecting resident be absent before a constitutional search can occur?  Could the police knock on the door and obtain consent the minute the objector left the driveway?  What if the objecting resident is still in the home, but is away from the door and does not hear the renewed request for consent and therefore does not object?  Would the fact that the objector is in the home but out of ear shot be sufficient to render him/her “present” such that his/her prior objection precluded a consent search?
The answers to these questions have implications not only for criminal cases to the extent unconstitutional searches result in suppressed evidence, but also in a civil context as an unconstitutional search can form the basis of a costly private lawsuit.  The Court clearly limited the application of Randolph through the Fernandez case, but it is never advisable to be the case which tests how narrow the Randolph holding is or how broad the Fernandez holding is.  In the absence of a more complete definition of “presence,” officers should still proceed with caution in situations when not all residents consent to a search.