The Odd Couple Dilemma: Consent to Police Searches with Joint Occupants

“I can’t take it anymore, Felix, I’m cracking up. Everything you do irritates me. And when you’re not here, the things I know you’re gonna do when you come in irritate me. You leave me little notes on my pillow. Told you 158 times I can’t stand little notes on my pillow. ‘We’re all out of cornflakes. F.U.’ Took me three hours to figure out F.U. was Felix Ungar!” – Walter Matthau as Oscar Madison in The Odd Couple.

Anyone who has ever lived with a roommate has felt Oscar’s pain.  Whether it was in a shared apartment or house, roommates can drive you nuts!  And the complaints are usually the same.  “You didn’t clean the bathroom and it is your turn!” or “Will you please cleanup after yourself in the kitchen!”  Obviously, these are just a few minor complaints, but they can drive roommates crazy.  So if these minor complaints can drive roommates crazy, what would happen to these roommates if the police showed up wanting to search the apartment?

Here is the scenario, like the Odd Couple, you and your roommate do not see eye-to-eye on certain things.  It leads to arguments, but on the whole your roommate pays the rent and bills on time, so not too bad.  Then one night while you are both watching TV, you hear a loud knock on the door followed by a voice yelling, “Police…Open UP!”  Not a normal thing to hear, you open your door two find to police officers standing at your door.  They inform you that they have reason to believe drug activity has been going on inside your apartment.  The police officers then ask your consent to search your apartment.  Obviously scared because of the false accusation and wanting to show your innocence, you give the police officers consent to search the apartment.  But prior to the police officers stepping inside your apartment, your roommate jumps up off the couch and tells the police officers to stay outside, and they are not welcome to come into the apartment.  Now remember this scenario, because I will be reverting back to it.

So who prevails?  Prior to 2006, only one roommate had to give police officers consent to search the shared apartment or house.  Say What?!?!  Does not seem right to me!  Well, in 2006 the U.S. Supreme Court made a narrow exception to the above rule in Georgia v. Randolph.  The Court in Randolph held that “a physically present inhabitant’s express refusal of consent to a police search of his home is dispositive as to him, regardless of the consent of a fellow occupant.”  To paraphrase, the consent of one occupant is insufficient when another occupant is present and objects to the search.  Awesome!!  Our Fourth Amendment Rights to unlawful search and seizure are upheld once again!  But, as everything in life….some things must come to an end.

Let’s change up the fact pattern real quick.  After you give consent to the search of your apartment and your roommate objects, the police officers look at your roommate and ask for his name.  Your roommate obliges to the request and gives the police officers his name.  In turn, the police officers run a name check on your roommate and find out that he has a warrant for his arrest for failure to appear on a traffic ticket.  Police officers arrest your roommate on the spot, and haul him to the police station.  An hour later a detective shows up at your door with a written consent form to search your apartment.  Still scared, you sign the form and allow the detective to search your apartment.  Through this search, the detective finds a couple of marijuana joints in your roommate’s room.  BUSTED!  Believing his rights were violated, your roommate hires an attorney to fight the charges.  The attorney argues that under Randolph, this was an invalid search and seizure!  Makes sense right?  After all, he objected to the search from the very beginning.  The U.S. Supreme Court saw differently in Fernandez v. California.

In Fernandez, the police officers arrived at Fernandez’s apartment after a violent gang-related robbery and heard screaming coming from inside his apartment.  Police officers knocked on the door and Fernandez’s girlfriend answered the door holding a crying infant child and had a beat up nose.  Fernandez then showed himself telling the police officers that he knows his rights and objects to any search.  Seeing the beat-up girlfriend, the police officers arrested him for domestic violence and the earlier robbery.  While Fernandez was at the police station, police officers returned an hour later to the apartment and were given consent to search the apartment by the girlfriend.  This led to finding incriminating evidence against Fernandez.  The U.S. Supreme Court upheld the search because Fernandez was no longer “physically present” and his removal from the apartment was “objectively reasonable.”  Basically, if the objector of the search is removed by the police and that removal is made for objectively reasonable reasons, then a consenting co-occupant provides sufficient authority to allow search of the premises.

When reading this case, I kept thinking to myself that the only thing a police officer will need to do when trying to get consent to search a house or apartment with joint occupants, is just find a reason to remove the objecting party and get consent from the non-objecting party.  Seeing this fear, the Court in Randolph stated that consent by one occupant might not be sufficient if “there is evidence that police removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection.”  It sounds like the Court was saying that police officers cannot use their own motive to remove an objector to get consent to search from the non-objector.  The Court in Fernandez, however, recognized this argument and shot it down by saying removal of an objector is okay if that removal is objectively reasonable.  The Court stated that it is not an inquiry into the subjective intent of officers who detain or arrest a potential objector but instead to refer to situations in which the removal of the potential objector is not objectively reasonable.

Hmmmmmmmmmm…….I can see how this one is going to play out.  All Barney Fife needs is just one excuse, sorry one objective excuse, to remove the objector from the premises in question.  Are you kidding me?!?!?!  Police will do anything and everything to get away with warrantless searches!  Glad to hear they have more ammo to accomplish that goal now.  But hey, these are not subjective motives to remove an objector from the premises, they are reasonable under an objective standard.  Police never have improper motives, right?!?!  Hold on to that thought, this gets better.

Just like in the first example above and in Fernandez, both individuals were removed from the premises after making their objections to the search.  Also in both cases, the police show back up to the premises one hour later to ask the other occupant (again) for consent to search the premises.   So what happened with that objection to search an hour ago?  According to the Court, that objection does not matter because that individual was not present to reinforce that previously made objection.  The Court stated this poses a plethora of practical problems.  The Court asked, must a co-tenant’s objection, once registered, be respected indefinitely?  Meaning, could Fernandez stop police in their tracks eternally by withholding consent?  And there are many more examples the Court addresses as to why the ongoing objection is burdensome to the police officers.

Ummmmmm how about the police just get a search warrant?  Not good enough for the Court in Fernandez.  And I quote, “even with modern technological advances, the warrant procedure imposes burdens on the officers who wish to search, the magistrate who must review the warrant application, and the party willing to give consent.”  Well I am glad to know that my rights to unlawful search and seizure are burdensome to police officers and magistrates. This did not sit well with Justice Ginsburg, and she took the lead on this issue in her dissenting opinion.

Justice Ginsburg stated very simply, “the police could readily have obtained a warrant to search the shared residence.”  Justice Ginsburg goes on to state, “the Court does not dispute this, but instead disparages the warrant requirement as inconvenient, burdensome, entailing delay even with modern technological advances.”  Most likely dumbfounded by this, Justice Ginsburg looked to Missouri v. McNeely which found that technology allows for more expeditious processing of warrant applications, and cited state statutes that permitted warrants to be obtained remotely through various means such as telephonic or radio communication, electronic communication, and video conferencing.  Because of these developments, Justice Ginsburg felt that the “dilution of the warrant requirement should be vigilantly resisted.”

Towards the end of her dissent, Justice Ginsburg asks if the police have probable cause and could obtain a warrant with dispatch, but can gain the consent of someone other than the suspect, why should the law insist on the formality of a warrant?  In my opinion her response to her own question is dead on point.  Justice Ginsburg answers her question with “Because the Framers saw the neutral magistrate as an essential part of the criminal process shielding all of us, good or bad, saint or sinner, from unchecked police activity.”  Justice Ginsburg ends her argument by stating that the investigation of crime would always be simplified if warrants were unnecessary, but the Fourth Amendment reflects the view of those who wrote the Bill of Rights that the privacy of a person’s home and property may not be totally sacrificed in the name of maximum simplicity in the enforcement of the criminal law.  Very well put!

Wow…that was a lot to handle and digest!  So let’s talk about what probably really happened in the Fernandez case.  We have a victim that was brutally beaten in a gang- related robbery.  The victim tells the responding police officers that the attacker went into an apartment building complex.  Police officers follow that lead and hear screaming coming from one of the apartments.  The officers knock on the door and then see Fernandez’s girlfriend with a beat up nose when she opens the door.  Knowing that they could not go past a plain view search, the officers figured they needed a warrant to search for any criminal tools or weapons used in the robbery.  In the meantime, the officers decide to get Fernandez out of the apartment by placing him under arrest for domestic violence.

Once down at the police station, officers and/or detectives start to question him about the robbery.  Being a tough gang member, I would imagine Fernandez was not willing to talk.  Some officer or detective most likely realized that they will need a warrant to search the place.  Maybe getting a warrant that night would be difficult because of delays, or maybe they did not have enough probable cause, or maybe a very smart detective or officer figured out that with Fernandez out of the apartment they could just ask for consent once more from Fernandez’s girlfriend.

In Fernandez’s motion to suppress hearing, Fernandez’s girlfriend testified that when the police returned an hour later to the apartment, they began to question the girlfriend’s four-year-old son without her permission.  She asked to remain present during that questioning.  In response to this, the officers told her that their investigation was going to determine whether or not they take her kids from her right now.  The girlfriend testified that she felt pressured into giving consent and did not want to sign the consent form, but did so because she just wanted it to end.

So why would the police go through all of this trouble in getting consent to search the apartment?  I personally believe that from the beginning the officers did not have enough for a search warrant.  They couldn’t break Fernandez into admitting anything related to the robbery, and they spent a fair amount of time pressuring for consent to search from Fernandez’s girlfriend.  It seems their only option was a consensual search at the time.  Or maybe they could have obtained a search warrant, but they are so burdensome!!  I hate when my rights under the Fourth Amendment get in the way of police officers!