My criminal procedure professor from law school would always argue that 4th Amendment cases were fundamentally about the tension between the power of the state and the freedom of the individual. As the final arbiter on these matters, the Supreme Court of the United States (SCOTUS) makes decisions that have a significant impact on your individual freedom and police power. And when it comes to the Constitutional right “of the people to be secure … against unreasonable searches and seizures” as outlined in the 4th Amendment, the Court has often weighed in on the side of the police. Indeed its most recent decision in this area—Fernandez v. California—reduces your personal freedom by expanding the ability of the police to enter your home without a warrant. But we should not necessarily be surprised; the decision is merely the latest in a series of holdings that have chipped away at the core protections of the Fourth Amendment.
Here’s what you need to know for relevant background: in a case from 2006 (Georgia v. Randolph) the Court held that the objection of one person to a search of his/her property was “dispositive as to him, regardless of the consent of the fellow occupant.” If you objected to a search but a physically-present cotenant agreed to one, in other words, your “no” was the final word. Your refusal would negate your cotenant’s consent. That’s a logical rule that squares with the 4th Amendment’s aim to protect our right to be free from unreasonable searches at home. But the Court in Fernandez, however, crafted a loophole: if you are “absent due to lawful detention or arrest” from the property, the police can ask your cotenant once again for consent to search even though they know full-well you previously objected. With you no longer present to say “no” to the search—even though you clearly and definitively said that before—your cotenant’s consent now overrules you.
The real-world implications of Fernandez are simple: your express refusal to a warrantless search means less than it once did. Your Constitutional right to be secure “against unreasonable searches and seizures” now appears bound by temporal and geographical limits, your exercise of 4th Amendment rights now dependent on time and place. The police can simply wait until they’ve devised an objectively reasonable way to remove you from the property, at which time your previous refusal to a search apparently vanishes into thin air. But the right to be secure in our homes should surely mean more than that, and our Constitutional rights should not be circumvented after we’ve invoked them.
But Fernandez creates an atmosphere ripe for circumvention of the warrant requirement as it leaves a structure of perverse incentives in its wake. Justice Ginsburg makes an important point in her dissent when she observes that “[i]n this case, the police could readily have obtained a warrant to search the shared residence”, a concern the Court derides as “beside the point” (internal citations omitted, emphasis mine). It’s actually the Court that misses the point here. Ginburg’s observation speaks to a disturbing truth: the police could have complied with 4th Amendment search-and-seizure requirements in this case by obtaining a warrant, but nevertheless they deliberately chose not to. Not only did the police appear uninterested in pursuing a warrant, they removed the only individual at the scene who refused to grant consent for a warrantless search. What does it say about our right to be secure in our homes when the police can bypass the warrant requirement even when they have ample time to comply with it?
Without delving into a detailed legal analysis, the beginning of my piece hinted at the answer: our 4th Amendment rights have been steadily diluted by SCOTUS for many decades now. This has been particularly true since Justice Brennan retired, and the Fernandez case is little more than a new chapter in an old story.