Judges are ruled by the law. But judges are also human (some more than others), and they sometimes view the law through the human lens. This occurred in Fernandez v. California, a “consent to search” case decided by the Supreme Court on February 25, 2014. It was evidenced in the court’s final paragraph: “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 her own home until such time as he chose to relent. The Fourth Amendment does not give him that power.”


The Supreme Court in 1974 in United States v. Matlock established that the police may conduct a warrantless search of a jointly occupied residence if one of the occupants gives their consent to search.  More than two decades later the court in Georgia v. Randolph created a narrow exception to this rule: the consent of one occupant is insufficient when another occupant is present and objects to the search. In the recent Fernandez case, the court was called upon to decide if the Randolph rule applies when the objecting occupant is not present when the other occupant gives their consent.


The facts in the Fernandez case are straightforward. In October 2009 Walter Fernandez observed Mexican national named Abel Lopez cash a check in a Los Angeles business. Fernandez approached Lopez asking the Mexican national about the neighborhood in which he lived. Lopez responded that he knew nothing about the neighborhood because he was from Mexico.


Fernandez laughed, telling Lopez he was in “territory” ruled by the “Drifters” gang. He then pulled out a knife and pointed it at Lopez’s chest who reacted by raising his hand in self-defense at which time Fernandez cut him on the wrist.


Lopez turned and fled from the scene while immediately calling 911 for help. Fernandez whistled, prompting four men to emerge from a nearby apartment building. They caught and attacked Lopez, knocking him to the ground after which they kicked him and took his cell phone and wallet, the latter contained $400 in cash.


A police dispatch was sent out to all units mentioning possible gang involvement. Two Los Angeles police officers, a Detective Clark and Officer Cirrito, drove to a nearby alley frequented by Drifters. A man appearing to be scared quickly walked past the police vehicle, saying “the guy’s is in the apartment.” At that point the officers observed a man running through the alley and into the apartment building where the informant was pointing. The officers remained in their vehicle a couple minutes before hearing screaming and fighting coming from the apartment building.


They called for, and received, backup at which time Clark and Cirrito knocked on the door of the apartment from which the screams had come. The Supreme Court explained what happened next: “… Rosanne Rojas answered the door.


She was holding a baby and appeared to be crying. Her face was red, and she had a large lump on her nose. The officers also saw blood on her skirt and hand from what appeared to be a fresh injury. Rojas told the police that she had been in a fight. Officer Cirrito asked if anyone was in the apartment, and Rojas said that her 4-year-old son was the only other person present.”


At that point Officer Cirrito asked Rojas to step out of the apartment so he could conduct a “protective sweep.” At that point Fernandez appeared at the door wearing only boxer shorts. He was visibly agitated, telling the officers: “You don’t have any right to come in here. I know my rights.”


Armed with the suspicion that Fernandez had beaten Rojas, the police removed him from the apartment and placed him under arrest. Lopez identified Fernandez at the scene as his assailant, after which the suspect was taken to the police station where he was booked.


The Court again picked up the factual narrative: “Approximately one hour after petitioner’s arrest, Detective Clark returned to the apartment and informed Rojas that petitioner had been arrested. Detective Clark requested and received both oral and written consent from Rojas to search the premises. In the apartment, the police found Drifters gang paraphernalia, a butterfly knife, clothing worn by the robbery suspect, and ammunition. Rojas’ young son also showed officers where petitioner had hidden a sawed-off shotgun.”


Fernandez was charged with robbery and a litany of other charges surrounding the beating of Rojas and the discovery of the shotgun and ammunition. A jury found him guilty and he was sentenced to 14 years in prison. Prior to trial, he moved to suppress the evidence found during the apartment search. The trial court denied the motion and the California Supreme Court upheld Fernandez’s conviction on direct appeal. The state supreme court followed the lead of most Federal circuits, including the Fifth Circuit, who have interpreted Randolph to mean that an objecting occupant of a residence must be physically present for the objection to search to come under the Randolph rule.


The Supreme Court has historically held a search warrant generally must be obtained before the police can search a residence, although the court has recognized certain categories of warrantless searches. “Consent searches occupy one of these categories,” the Fernandez court said. “’Consent searches are part of the standard investigatory techniques of law enforcement agencies’ and are ‘a constitutionally permissible and wholly legitimate aspect of effective police activity.’ It would be unreasonable—indeed, absurd—to require police officers to obtain a warrant when the sole owner or occupant of a house or apartment voluntarily consents to a search. The owner of a home has a right to allow others to enter and examine the premises, and there is no reason why the owner should not be permitted to extend this same privilege to police officers if that is the owner’s choice. When the owner believes that he or she is under suspicion, the owner may want the police to search the premises so that their suspicions are dispelled.


This may be particularly important where the owner has a strong interest in the apprehension of the perpetrator of a crime and believes that the suspicions of the police are deflecting the course of their investigation. An owner may want the police to search even where they lack probable cause, and if a warrant were always required, this could not be done. And even where the police could establish probable cause, requiring a warrant despite the owner’s consent would needlessly inconvenience everyone involved—not only the officers and the magistrate but also the occupant of the premises, who would generally either be compelled or would feel a need to stay until the search was completed.”


The Randolph decision itself went to extraordinary lengths to make it clear that its holding was confined strictly to those situations where the occupant is present. Fernandez’s attorney put forth two arguments supporting his contention that Randolph also applied to Fernandez situation. “First,” the Supreme Court said, “he claims that his absence should not matter since he was absent only because the police had taken him away. Second, he maintains that it was sufficient that he objected to the search while he was still present. Such an objection, he says, should remain in effect until the objecting party ‘no longer wishes to keep the police out of his home.’ Neither of these arguments is sound.”


Beyond these legal principles, the fact that Fernandez had physically abused Rojas caught the court’s attention. It is evident the court found it offensive that Fernandez tried to shield not only the fruit of his robbery, but also his domestic violence with the Fourth Amendment. Fernandez knew that Rojas, battered from the beating he had just given her, would consent to a search—a search he knew would link him to the Lopez robbery. He thus tried to assert a dominant role overriding Rojas right to consent to a search. As the court put it, he tried to disrespect “her independence.”


That is a raw human observation, not a legal one. Whether it had a place in the decision-making process must be left to each individual’s assessment.