In FERNANDEZ v. CALIFORNIA the United States Supreme Court considered the issue of a consent search of residence, with dual occupants, in which one of the occupants provides the consent. Justice Samuel A. Alito, Jr. delivered the opinion of the Court. Justices Antonin Scalia and Clarence Thomas issued concurring opinions. And Justice Ruth Bader Ginsburg issued a dissenting opinion, in which Justices Sotomayor and Kagan joined. You can access the oral argument via this link.

In Fernandez, the police saw a suspect in a robbery run into an apartment building and then heard screams coming from one of the apartments. They knocked on the apartment door, which was answered by Ms. Roxanne Rojas.  Her “face was red, and she had a large bump on her nose. The officers also saw blood on her shirt and hand from what appeared to be a fresh injury.”  The officers asked her to step out of the apartment.  The Supreme Court of the United States indicated that after asking “Rojas to step out of the apartment so that he could conduct a protective sweep, petitioner appeared at the door wearing only boxer shorts. Apparently agitated, petitioner stepped forward and said, ‘You don’t have any right to come in here. I know my rights.’…Suspecting that petitioner had assaulted Rojas, the officers removed him from the apartment and then placed him under arrest.”

An officer later returned to the apartment and, after obtaining Ms. Rojas’ oral and written consent, searched the premises, where the officer found several items linking the accused to the robbery.

The questions that the Supreme Court resolved were:

While it is clear that a warrantless search is reasonable when the sole occupant of a house or apartment consents, what happens when there are two or more occupants? Must they all consent? Must they all be asked? Is consent by one occupant enough?

The Supreme Court indicated that its decisions “firmly establish that police officers may search jointly occupied premises if one of the occupants consents. See United States v. Matlock, 415 U. S. 164 (1974). In Georgia v. Randolph, 547 U. S. 103 (2006), we recognized a narrow exception to this rule, holding that the consent of one occupant is insufficient when another occupant is present and objects to the search.” The Court noted that in this case, “we consider whether Randolph applies if the objecting occupant is absent when another occupant consents. Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present. We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared.”

The Supreme Court pointed out that in its decision in Randolph, it “went to great lengths to make clear that its holding was limited to situations in which the objecting occupant is present. Again and again, the opinion of the Court stressed this controlling factor…”

In this case, the defendant argued that despite his absence when Ms. Rojas consented to the search, Randolph applied because “he was absent only because the police had taken him away” and because “he objected to the search while he was still present.”

The United States Supreme Court rejected both of these propositions.  It concluded that “the lawful occupant of a house or apartment should have the right to invite the police to enter the dwelling and conduct a search”:

…the lawful occupant of a house or apartment should have the right to invite the police to enter the dwelling and conduct a search. Any other rule would trample on the rights of the occupant who is willing to consent. Such an occupant may want the police to search in order to dispel “suspicion raised by sharing quarters with a criminal.” 547 U. S., at 116; see also Schneckloth, 412 U. S., at 243 (evidence obtained pursuant to a consent search “may insure that a wholly innocent person is not wrongly charged with a criminal offense”). And an occupant may want the police to conduct a thorough search so that any dangerous contraband can be found and removed. In this case, for example, the search resulted in the discovery and removal of a sawed-off shotgun to which Rojas’ 4-year-old son had access.

Denying someone in Rojas’ position the right to allow the police to enter her home would also show disrespect for her independence. Having beaten Rojas, petitioner would bar her from controlling access to her own home until such time as he chose to relent. The Fourth Amendment does not give him that power.

Professor Orin Kerr has this post at ScotusBlog on the opinion.  Among his observations:

Fernandez says that “presence” is the key to triggering Randolph, but I wonder what that means. Does the requirement of presence mean present at the door, or does it mean present on or near the premises? . . .

Which is it, presence at the door or presence on the premises? It’s at least possible that it’s a bit of both. Specifically, perhaps the initial objection has to be at the door, and then the objection lasts as long as the defendant is on the premises. Reading over the opinion, I’m not sure. Either way, it would seem to make a difference at least in some cases. Imagine the objector tells the police to buzz off, and the police then wait five minutes and ring the doorbell again. The consenting occupant answers the door, and the officers ask again while the objector is elsewhere in the house (perhaps in the bathroom or taking a nap). Can the police search the house then? And if so, what happens if the objecting occupant realizes what is happening and objects again — is he “present” again for purposes of the Randolph rule if he is present where the search is occurring?