From now on, when two occupants disagree over letting police enter their home without a warrant, the cops can haul the obstinate one to jail and go on in.
The U.S. Supreme Court voted 6-3 to narrow Fourth Amendment prohibitions against unreasonable search and seizure by focusing on the presence of someone asserting that right. The ruling (pdf) was a victory for law enforcement agencies.
A 2006 high court, in a 5-3 decision, had made it clear that refusal by either party trumped the other’s permission. This decision essentially reverses that if the police lend a hand.
The ruling grew out of a California case. Los Angeles resident and robbery suspect Walter Fernandez cited his constitutional rights and refused to let the officers enter his home. Roxanne Rojas, his bloodied girlfriend holding a 2-month-old baby, said okay. The police took Fernandez away in cuffs, entered the home and found a sawed-off shotgun, a knife, ammunition and gang paraphernalia.
He pleaded no contest to weapons charges and was convicted by a jury of armed robbery and inflicting corporal injury. Prosecutors argued that although they had time to get a warrant from a judge, they didn’t need one. The judge gave Fernandez a 14-year prison sentence.
But the U.S. Supreme Court was interested and granted a writ of certiorari last May.
Justice Samuel Alito, writing for the majority, focused on Rojas. Alito mentioned Rojas 24 times in his opinion. Fernandez got zero shoutouts.
Alito cited the willingness, if not the need, of a battered woman to allow police to search her own home and wrote for the majority, “Any other rule would trample on the rights of the occupant who is willing to consent.”
Justices Ruth Bader Ginsburg, Sonya Sotomayor and Elena Kagan dissented. Citing the court’s history in Fourth Amendment cases, Ginsburg wrote for the minority, “Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it, never mind ample time to secure the approval of a neutral magistrate.”
The justice wondered just how far the police would take its new right to enter in the absence of the refuser: “Does an occupant’s refusal to consent lose force as soon as she absents herself from the doorstep, even if only for a moment? Are the police free to enter the instant after the objector leaves the door to retire for a nap, answer the phone, use the bathroom, or speak to another officer outside?”
Ginsburg noted that the Fourth Amendment itself does not mention “consent searches,” which are a “jealously and carefully drawn exception” to the rule. She allowed that the police could obviously enter without a warrant or consent if they felt the woman was in immediate jeopardy. But they had already taken Fernandez away.
Ginsburg said that police expediency is not a sufficient reason to trash the right to demand a warrant, the “bulwark of Fourth Amendment protection.”