Consenting to Search Has Never Been Easier: The Supreme Court’s Expansion of Warrantless Searches

The Supreme Court’s Expansion of Warrantless Searches in Fernandez v. California

Put yourself in the following situation: you hear a knock on the door and open to find the police requesting to search your home for a robbery suspect. Your spouse consents and you refuse. The police then arrest you and take you from the scene. Can the police search after you have been hauled away in cuffs?

According to the Supreme Court (and surprisingly) the answer is now yes … so long as the police were justified in removing you from the scene and did not do so solely to negate your lack of consent to search. Of course, there were more facts in the case of Fernandez v. California that make the Supreme Court’s decision slightly more rational. For instance, the police observed Fernandez running from the scene of an armed robbery to the apartment. When Fernandez’s partner opened the door, she clearly had been beaten and was bloodied. The police arrested Fernandez on the suspicion he battered his partner and then sought to search the property for evidence from the robbery as well. (And, as one might imagine, they found plenty of incriminating evidence).

This case begs the question of whether it is good policy to expand the reach of the exceptions to the Fourth Amendment rather than make police go through the process of obtaining warrants through a neutral magistrate (as the Constitution requires). In the Fernandez case, there was no exigent circumstances or emergency that would prevent the police from swearing a statement to the magistrate that they had probable cause to search the apartment for two independent reasons: (1) to further investigate a probable violent encounter between Fernandez and his partner; and (2) to further investigate the possibility that evidence from the armed robbery may have been discarded into the apartment where the subject had been observed seeking shelter only moments before.

After Fernandez, courts will have to analyze the intentions of the police and determine whether they had good cause for removing the non-consenting party from the scene. And while we all like to think the police are well-intentioned and upstanding members of the community, officers are human and make mistakes.

What remains to be seen, however, is whether the Supreme Court’s 1948 distinction between the American system and the police state will continue to have force: “Any other rule would undermine ‘the right of the people to be secure in their persons, houses, papers and effects,’ and would obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police state where they are the law.” Johnson v. United States, 333 U.S. 10, 17 (1948).

For those that wish to read the Court’s full opinion, click on this link: Hernandez v. California Decision (opens in a new window).