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 re- quires that the police-initiated removal of the non-consenting co-occupant be objec- tively reasonable. Fernandez, for example, had been lawfully arrested. In view of that, taking him away for booking into a deten- tion 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 objec- tively reasonable. If the removal of the non-consenting co-occupant is not ob- jectively 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 de- terminations of Fourth Amendment 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 objecting party is objec- tively reasonable—that is, there is a law- ful basis for it—it does not matter that the offi cer might have had in his mind the ulterior motive of removing the ob- jecting party to clear the way for a valid consent by the still-present party. Returning to the hypothetical situ-
ation at the beginning of this article, was the remaining party’s consent valid? The offi cer received confl icting responses from the co-owners of the ve- hicle regarding the request for consent to search their vehicle but then the per- son denying consent to the search was lawfully removed from the scene based on an outstanding arrest warrant. Police then again requested and received con- sent to search from the still-physically- present husband. Although Randolph and Fernandez
both deal with consent to search a resi- dence, their principles can be applied (even more so) to this hypothetical sce- nario, which is like Fernandez except it involved a car rather than a home. The removal of the wife was objectively rea- sonable as part of a lawful arrest. There- fore, the co-owner/occupant husband can validly consent even over the re- fusal to consent by the no-longer-physi- cally-present co-owner, the wife. Both Randolph and Fernandez have
domestic violence as an underlying issue. Neither case diminishes the au- thority of a police offi cer to enter a home, without anyone’s consent, where the of- fi cer 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.
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