Supreme Court to Hear Oral Arguments to Decide Whether a Defendant Must Be Present and Objecting When Police Ask a Co-tenant for Consent to Search Premises

The Supreme Court will hear oral arguments in Fernandez v. California to decide “whether a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant's previously-stated objection, while physically present, to a warrantless search is a continuing assertion of 4th Amendment rights which cannot be overridden by a co-tenant.” 

In this case, on the early afternoon of October 12, 2009, petitioner-appellant, Walter Fernandez, approached the victim, Lopez on the street, issued a gang challenge and tried to stab Lopez. When Lopez resisted, Fernandez called out to accomplices, who helped Fernandez subdue and rob an unarmed Lopez. Fernandez fled the scene into a nearby apartment that he shared with his girlfriend, Rojas, and where pursuing police officers heard a verbal altercation. Police then approached the residence and a bloodied Rojas opened the door for the investigating officers. Police believed they had encountered an ongoing domestic violence incident. Fernandez then objected to police entry into his shared apartment. 

Upon detaining Fernandez, the officers discovered that he matched the robbery suspect’s description. After Lopez identified petitioner as the robber, the police arrested him. With Fernandez either in the squad car or en route to the police department, the police returned to the apartment after an hour, where they obtained Rojas’s oral and written consent to search the residence. The police then discovered an illegal firearm and ammunition, among other items. 

Before trial, Fernandez filed a motion to suppress evidence seized during the warrantless search of his apartment following his arrest, seeking to exclude various items including a 20–gauge shotgun, ammunition and a knife. The motion to suppress was denied. A jury found Fernandez guilty of second degree robbery of Lopez, and inflicting corporal injury on his cohabitant, Rojas. The trial court imposed a fourteen year sentence. 

Before the Court of Appeals, it held that there was no showing that the arrest was a pretext for the search and Fernandez’s prior objection to police entry was overridden by his absence from the apartment and Rojas’s consent. Fernandez argued on appeal that the Fourth Amendment did not allow the police to obtain valid consent to enter his home by removing the objecting tenant (Fernandez) from the scene against his will and then seeking permission from the other tenant shortly thereafter. The Court of Appeals rejected the claim, holding Rojas’s consent to a search of the apartment she shared with petitioner was valid and justified the officers’ actions. 

Fernandez then petitioned the Supreme Court for writ of certiorari, which was granted. The Supreme Court will hear the oral argument on Wednesday, November 13, 2013. The case is Fernandez v. California, No.12-7822. Read the decision at the Court of Appeals. 

This case law update was written by Maria N. Coleman, associate attorney at the law firm Shaw Bransford & Roth, PC.  

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