ON THE JOB NEWS JUST HANDED DOWN ATHENA REPORT MISSION CRITICAL SYSTEMS


Supreme Court Decides New Consent Case


Fernandez v. California updates Georgia v. Randolph. By Zachary Miller and Randy Means


Randy Means is a partner in Thomas & Means, a law firm specializing entirely in police operations and administration. He has served the national law enforcement community full time for more than 30 years and is the author of “The Law of Policing,” which is available at LRIS.com. He can be reached directly at rbmeans@aol.com.


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


www.thomasandmeans.com


married couple for a traffi c offense. The vehicle’s registration shows the couple as co-owners of the vehicle. The offi cer asks the husband/driver for consent to search the vehicle. The hus- band 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 ar-


A


rest warrant. She is arrested and taken away by another offi cer. The offi cer again asks for, and receives, consent to search from the husband. An ensuing search produces illegal drugs, which the husband quickly


“ As is generally true in judicial determinations of Fourth Amend- ment reasonableness, the subjective state of mind of the involved police offi cer is not relevant. As long as the offi cer’s action in removing the ob- jecting party is objectively reason- able—that is, there is a lawful basis for it—”


10 LAW and ORDER I May 2014 www.lris.com


says belong to his wife. Was the husband’s con-


sent 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 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 resi- dence 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 follow-


police offi cer stops a vehicle occupied by a


ing 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 questions.


The New Case In 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. Be- fore his arrest, Fernandez had denied an offi cer’s re- quest for consent to search the home. An hour after the arrest, another offi cer 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 offi cer asked for the fe- male’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


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