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.”
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.
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
the Supreme Court held in Georgia 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.
question that arose almost immediately following the ruling in Randolph 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
Fernandez v. California, 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.
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.
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
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.
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
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
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.
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
email@example.com. His book, The
Law of Policing, is available online.