The U.S. Supreme Court’s 6-to-3 decision to uphold the constitutionality of a 2006 Los Angeles Police Dept. search of the residence of a man named Walter Fernandez has sparked some fires in our nation’s newsrooms.
A robbery suspect and suspected gangbanger at the time police confronted him at his apartment, officers requested permission from Fernandez to search his residence. The man refused, but officers noted that his live-in girlfriend appeared beaten and abused. Fernandez was subsequently arrested and charged with domestic abuse in connection with the woman’s injuries.
Police hauled Fernandez, already a felon, to the jail to process him, while other officers requested permission from his girlfriend and roommate to search the premises. Although Fernandez had refused permission, the woman granted it. That search turned up evidence that he’d participated in the robbery, as well as guns and ammunition he was forbidden to possess. Additional charges of robbery and possessing the contraband were lodged against Fernandez. In pretrial procedures, Fernandez’s legal team sought to suppress evidence attached to the search, claiming it violated his Fourth Amendment right against warrantless searches. Furthermore, they argued police should not have searched the apartment based on the girlfriend’s consent alone; they should have obtained a prior search warrant.
The court disagreed. In an odd twist, the court’s opinions divided across gender lines, with the three female justices dissenting. Those justices wrote that without exigent circumstances, under which police are allowed warrantless searches, urgency was absent in relation to the Fernandez search, therefore police had enough time to obtain a warrant. They also noted that the granting of a warrant in this case was a virtual lock.
The majority opinion held that Fernandez’s absence due to arrest imbues the girlfriend with the right to consent to the search. Basically, the law holds that in the case of two individuals who cohabit, with one granting permission to search and the other withholding permission, police cannot search without a warrant as long as the dissenter is physically present.
The current ruling narrows that decision to embrace the additional circumstances that once Fernandez was no longer present on the premises, i.e. in custody, officers could use the roommate’s permission to search.
I said most newspapers don’t like this decision and they don’t. It’s my opinion that, when it comes to anything that expands police search powers or defines them beyond the obvious, the majority of the media is going to express opposition. This case is no different. Even my hometown newspaper ran an editorial that condemned the court’s decision. I don’t see it as being an erosion of our Fourth Amendment rights; to me, it’s a clarification.
In Fernandez’s case, the court made it clear that if the person objecting to the search leaves the premises even if his or her departure is not a willing one, police can legally move in and search as long as they have an acceptable form of legal permission. Although critics claim it eviscerates the court’s previous decisions, this rule won’t, as some editorial writers have inferred, encourage police to simply arrest a subject in order to effect a warrantless search. They’re forgetting that just as an officer must have probable cause to search, he or she must also have probable cause to arrest. And it’s a useless tactic as a paperwork evader: Both command mountains of bureaucracy.
Sometimes the media tends to forget that police are decent men and women who want to do it the right way. We don’t sign up to protect, serve and subvert the Constitution to our own nefarious purposes. It’s our Constitution, too, and we value and guard its tenets no less than the media does.