Supreme Court Decides New Consent Case

A police officer stops a vehicle occupied by a married couple for a traffic offense. The vehicle’s registration shows the couple as co-owners of the vehicle. The officer asks the husband/driver for consent to search the vehicle. The husband gives a verbal consent but his wife/passenger immediately speaks up, saying, “This is my car too and you can’t search it.”


A computer check then reveals that the wife has an outstanding arrest warrant. She is arrested and taken away by another officer. The officer again asks for, and receives, consent to search from the husband. An ensuing search produces illegal drugs, which the husband quickly says belong to his wife.


Was the husband’s consent to search valid, given the objection of his no-longer-present wife? The holding in a newly decided United State Supreme Court case answers this question. A 2006 decision tees up the issue.


The 2006 Case

In 2006, the Supreme Court held in


v. Randolph, 547 U.S. 103, that the express refusal by a physically present co-occupant to grant consent to search the common areas of a private residence overrides the grant of consent by another adult co-occupant. In such a situation, a denial of consent takes precedence over a grant of consent.


A question that arose almost immediately following the ruling in


was whether such a denial of consent would trump the consent of a co-occupant if the refusing occupant were no longer physically present at the premises or was otherwise unable to refuse to give consent. Would it matter if the later absence of the earlier-consenting party was caused by police action? In the years following, lower courts split on these questions.



The New Case

In Fernandez v.


, decided 6-3 on February 2014, the United States Supreme Court answered both questions. In that case, Fernandez was lawfully arrested at a residence he shared with a female. Before his arrest, Fernandez had denied an officer’s request for consent to search the home. An hour after the arrest, another officer returned to the residence and received consent from the female co-occupant to search the residence. That search produced criminal evidence against Fernandez.


The Court held that since Fernandez was no longer physically present when the officer asked for the female’s consent, the consent given by the female was valid despite the fact that Fernandez, a co-occupant, had unambiguously refused to grant consent before being taken away by police.

Of course, Fernandez does not allow police simply to remove an objecting co-occupant from the premises solely to try to gain consent from another co-occupant in the absence of the then-removed party. Fernandez requires that the police-initiated removal of the non-consenting co-occupant be objectively reasonable. Fernandez, for example, had been lawfully arrested. In view of that, taking him away for booking into a detention facility was objectively reasonable.


Had the arrest of Fernandez been unlawful—for want of probable cause, for example—his removal from the premises would not have been objectively reasonable. If the removal of the non-consenting co-occupant is not objectively reasonable, then any consent obtained from another co-occupant would not be valid and a subsequent warrantless search would be unlawful.


As is generally true in judicial determinations of Fourth Amendment reasonableness, the subjective state of mind of the involved police officer is not relevant. As long as the officer’s action in removing the objecting party is objectively reasonable—that is, there is a lawful basis for it—it does not matter that the officer might have had in his mind the ulterior motive of removing the objecting party to clear the way for a valid consent by the still-present party.


Returning to the hypothetical situation at the beginning of this article, was the remaining party’s consent valid? The officer received conflicting responses from the co-owners of the vehicle regarding the request for consent to search their vehicle but then the person denying consent to the search was lawfully removed from the scene based on an outstanding arrest warrant. Police then again requested and received consent to search from the still-physically-present husband.


Although Randolph and Fernandez both deal with consent to search a residence, their principles can be applied (even more so) to this hypothetical scenario, which is like Fernandez except it involved a car rather than a home. The removal of the wife was objectively reasonable as part of a lawful arrest. Therefore, the co-owner/occupant husband can validly consent even over the refusal to consent by the no-longer-physically-present co-owner, the wife.

Both Randolph and Fernandez have domestic violence as an underlying issue. Neither case diminishes the authority of a police officer to enter a home, without anyone’s consent, where the officer has reason to believe that a person inside that residence is being or is about to be physically assaulted, or where there are other probable cause-based exigent circumstances.


Zachary Miller is a police officer and serves as Associate Director of the Police Authority Training System (PATS), a national computer-based legal training initiative of the Thomas & Means Law Firm.


Randy Means is formerly head of the legal department at a state law enforcement training center, in-house counsel to a major city police department, past head of the national association of police attorneys (IACP-LOS). He can be reached at His book,

The Law of Policing

, is available online.

Published in Law and Order, May 2014

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