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GungnirSniper writes "By a six to three vote, the US Supreme Court has ruled police may enter a home if one occupant allows it even after another previously did not consent.
In the decision on Tuesday in Fernandez v. California, the Court determined since the suspect, Walter Fernandez, was removed from the home and arrested, his live-in girlfriend's consent to search was enough. The Court had addressed a similar case in 2006 in Georgia v. Randolph, but found that since the suspect was still in the home and against the search, it should have kept authorities from entering.
RT.com notes "Justice Ruth Bader Ginsburg joined in the minority by Justices Kagan and Sotomayor, marking a gender divide among the Justices in the case wrote the dissenting opinion, calling the decision a blow to the Fourth Amendment, which prohibits 'unreasonable searches and seizures.'"
Could this lead to police arresting people objecting to searches to remove the need for warrants?"
(Score: 5, Interesting) by n1 on Friday February 28 2014, @06:10PM
Of course I have not RTFA.
I would like to know how an occupant is defined. Anyone in the property? Is it anyone beyond the threshold (child, contractor, guest), or do they have to be resident/leaseholder/(part)owner to consent to a search?
(Score: 1) by hubie on Friday February 28 2014, @06:12PM
I haven't (yet) RTFA either, but I wonder whether there is any significance to the "gender divide" comment, or whether that was just thrown in as an aside.
(Score: 5, Informative) by Angry Jesus on Friday February 28 2014, @06:25PM
The gender divide comment is of interest because the case at hand involved a battered woman. Her husband/boyfriend did not want the house searched, so the police hauled him off and convinced her to let them in. She did and as a result the guy went to prison and she was 'rescued' from her abuser.
Stereotypically you would expect the women on the court to side with a ruling that protects an abused woman. That they did not (a) shows that there is more complexity to the case and (b) stereotyping isn't very accurate.
FWIW, there is a saying in the legal profession, "bad cases make bad law." I think this is one such case, the results in the specific case were a net good. But the precedent set here is going to be a very big net bad because it just opens the door (pun intended) for police abuse.
(Score: 5, Interesting) by Gryle on Friday February 28 2014, @07:56PM
According to the NPR version of the story, the woman let the police enter the house and the suspect emerged after they had done so shouting the police didn't have the right to enter. The suspect was arrested and then the police later went back to the house and again got permission from the woman to enter. I think the nuance of her allowing them access prior to the arrest is what made the court vote the way it did.
Ignorance can be remedied. Stupid seems to be a permanent condition.
(Score: 1) by rts008 on Friday February 28 2014, @09:17PM
That was the exact way it was described in TFA.
Yes, I DID RTFA...what can I say, I'm new here! ;-)
(Score: 3, Funny) by davester666 on Saturday March 01 2014, @04:32AM
Go back to /. We don't like your kind around here!
(Score: 5, Informative) by hemocyanin on Friday February 28 2014, @08:18PM
I'm sure you'll go to +5 so I'll save my mod points. You are absolutely right, though the way I heard the saying was "bad facts make bad law."
Case in point: Smith v. Maryland. This is the case upon which Section 215 of the PATRIOT Act is predicated, and is the substance behind NSA shills saying that the programs are "legal." It was one of those bad facts/bad law cases -- Smith was a real creep. He robbed a woman and then stalked her. Everyone wanted to see him go to jail. The issue there was whether the police should have gotten a warrant to put a pen register on Smith's phone. They definitely could have gotten a warrant, but instead did not and just asked AT&T to do it. The Supreme Court dusted off the Third Party Doctrine (share info with a third party and you have no reasonable expectation of privacy), refused to exclude the evidence, and made sure Smith did his time.
Three decades later, this is the basis for all of the NSA masspionage we see today. Note that Smith involved a specific person, undergoing a specific investigation, where probable cause to search him or his records certainly existed. That factual matrix however, has been utterly divorced from the Third Party Doctrine so that today, that case is seen as the legal basis for searching the general population, in the absence of any specific investigation, in circumstances in which there is no probable cause at all.
Given the pattern Constitutional abuse engaged by our government entities, I fully expect that this case will be divorced from its particular ugly facts, and turned into a principal where police can go occupant shopping to avoid the warrant requirement.
(Score: 3, Insightful) by ikanreed on Friday February 28 2014, @06:22PM
We can discuss this case in particular if you'd like, because questions in court are always going to be a little subjective.
The police arrived at the residence, a man was living with his common-law wife(he was the leaseholder). She had called the police, and consented to the search of the premises when the police arrived. The man refused the search, but having the woman's consent, they searched anyways, found their child who had severe bruising, and arrested the man on charges of child abuse(and yeah, the case they built on that evidence showed the father was the abuser).
The question was whether the initial finding was an infringement on the man's rights, since they had no direct cause for the search, only the permission of the mother.
(Score: 2) by Nerdfest on Friday February 28 2014, @06:29PM
There would be absolutely no down-side to requiring a warring in this specific situation. There was no immediate risk of harm to anyone. This sounds like an excuse to poke another hole in the fourth.
(Score: 5, Informative) by hubie on Friday February 28 2014, @06:45PM
Actually, from TFA:
It seems that there was reason to believe that there was immediate risk, which is what they took the guy away for. Then, since he wasn't present, and because the woman consented to the search, they searched the place and found evidence implicating him for a robbery (not child abuse).
(Score: 1) by emg on Friday February 28 2014, @06:37PM
So, uh, couldn't she have, you know, just gone inside and got the kid for them? If the man tried to stop her, the cops could have restrained him while she did so.
As others have said, this ruling will result in cops arresting people merely to 'encourage the others'. It's as insane as most other recent Supreme Court rulings.
(Score: 3, Informative) by frojack on Friday February 28 2014, @06:59PM
I don't see any way around this issue other than to challenge her right to consent.
Assuming, as a resident, she had the right to consent, I see no reason to insist that EVERY resident consent. Such a condition would be unworkable, and hands too much control to the criminal element. It would force innocent parties to participate in the continued crime (the robberies) or consent to continued abuse, or move out of a home that is at least nominally their own. Your Ne'er-do-well son could start cooking drugs out of your house and you couldn't even show the police the lab in his bedroom?
No, there needs to be balance, and if the scale tips it should tip in the favor of the innocent.
Betteridge would look at the question in the summary:
and come to the conclusion that NO, in the long run, asking for permission to search, and hauling away anyone who says NO is not going to fly. Its easier to sit on the house and wait for the warrant.
No, you are mistaken. I've always had this sig.
(Score: 4, Insightful) by Angry Jesus on Friday February 28 2014, @07:24PM
No, there needs to be balance, and if the scale tips it should tip in the favor of the innocent.
That's a statement that only has meaning in context. In this case the innocent person was bettered by the outcome (presumably). But as a general principle that attitude is a recipe for authoritarianism, on the level of "if you aren't hiding anything you have nothing to fear."
Your Ne'er-do-well son could start cooking drugs out of your house and you couldn't even show the police the lab in his bedroom?
Seems like if the son explicitly told the cops they could not enter then a warrant would suit that situation just fine.
Its easier to sit on the house and wait for the warrant.
For a legitimate search that is absolutely true. So why do the police need this privilege?
(Score: 4, Informative) by frojack on Friday February 28 2014, @08:03PM
The constitution only offers protection against unreasonable search and seizure.
This isn't an absolute right, and it never has been.
Once someone gives permission, its no longer unreasonable.
If all occupants agree that they do NOT consent a search, they would prevail. (Contrary to the question asked in the summary, refusing a search is not grounds for arrest).
If all occupants refuse, and the Police still think they have enough to apply for a warrant, they can do so. But their burden is greater as it should be.
No, you are mistaken. I've always had this sig.
(Score: 3, Insightful) by Angry Jesus on Friday February 28 2014, @08:21PM
Once someone gives permission, its no longer unreasonable.
Once someone denies permission, it is unreasonable.
See how that works? Anyone can make a blanket subjective statement.
It all comes down to the definition of "unreasonable" -- and part of that definition includes whether or not there is another way to get the same end result in legitimate situations with less opportunity for abuse in illegitimate situations.
(Score: 2, Troll) by frojack on Friday February 28 2014, @08:51PM
No, the legal definition of unreasonable search does emphatically NOT include finding some other way, and exhausting all other means. It has never meant this. You don't get to make that determination, its above your pay grade.
http://legal-dictionary.thefreedictionary.com/unre asonable+search+and+seizure [thefreedictionary.com]
No, you are mistaken. I've always had this sig.
(Score: 1, Troll) by Angry Jesus on Friday February 28 2014, @09:44PM
You don't get to make that determination, its above your pay grade.
Alrighty then! Since you've decided that some random freedictionary.com is qualified to make that determination, let's go with that.
search by a law enforcement officer without a search warrant and without "probable cause"
In this case there was no search warrant and no one demonstrated probable cause. So, you've just put the argument to bed.
(Score: 2, Troll) by frojack on Friday February 28 2014, @09:56PM
Again, you misunderstand.
Once someone gives permission, probable cause is of no consequence.
Probable cause is only involved in the case where no permission is needed, (such as being pulled over for drunk driving or something).
As for the dictionary, what did you expect, a supreme court citation?
Why would I expect you to accept that, when we are discussing a supreme court ruling, and you won't accept it.
You are not a law unto yourself. You live in a society and that society as a whole makes the rules. How could any society possibly exist any other way.
You too can aspire to sit on the Supreme Court, and right all the wrongs of the world.
No, you are mistaken. I've always had this sig.
(Score: 1, Troll) by Angry Jesus on Friday February 28 2014, @10:02PM
Again, you misunderstand.
Once someone gives permission, probable cause is of no consequence.
Oh, I understand completely. Your argument is a nice little circle. It should be OK if someone gives permission because once someone gives permission it is OK. Perfect internal consistency!
we are discussing a supreme court ruling, and you won't accept it.
Indeed, the SCOTUS is above criticism. I don't know what I was thinking.
(Score: 5, Insightful) by hemocyanin on Friday February 28 2014, @08:28PM
Read my comment here: http://soylentnews.org/comments.pl?sid=341&cid=874 1 [soylentnews.org]
What you need to understand is that in application, this case will become totally unhinged from its factual underpinnings, and become a general principal that allows cops to occupant shop for permission. There is a history of doing just that, specifically, the way Smith v. Maryland made sure some creeper did time, and in the ensuing decades, made sure that every innocent person in America is subject to surveillance.
If you think about that old saw: "It is better for ten guilty men to go free than one innocent to be punished" -- this is sort of a corollary to that: "it is better for one guilty man to go free, than to establish a principal that enslaves an entire population."
And really, everyone goes around blaming the law for letting the guilty get off. Why does nobody think to blame the lazy cops who can't be arsed to follow the law?
(Score: 1) by emg on Friday February 28 2014, @07:34PM
"I don't see any way around this issue other than to challenge her right to consent."
How can she possibly consent to a search of someone else's stuff?
If you rent out your basement, do you think the tenant should be able to consent to let the police search your house?
(Score: 1) by Runaway1956 on Friday February 28 2014, @07:53PM
Maybe I misunderstood something. Wasn't she his common law wife? She LIVED there. She had every right, and authority to authorize a search of her own home. What, exactly, is the difference between "live in girl friend" and "common law wife"? The difference of a year or so? They've been living together, and she had his baby - that seems good enough for me.
(Score: 2) by frojack on Friday February 28 2014, @08:05PM
She was cohabiting. It wasn't like she was a renter of a separate premises.
No, you are mistaken. I've always had this sig.
(Score: 2) by Angry Jesus on Saturday March 01 2014, @10:22PM
I see no reason to insist that EVERY resident consent. Such a condition would be unworkable, and hands too much control to the criminal element.
You don't get to make that decision, it is above your pay grade. You are not a law unto yourself. You live in a society and that society as a whole makes the rules. How could any society possibly exist any other way.
You too can aspire to sit on the Supreme Court, and right all the wrongs of the world.
In 2006, the SCOTUS ruled the following in Georgia v Randolph:
See also United Stats v Matlock(1974) at 114-115:
(Score: 2) by frojack on Sunday March 02 2014, @12:28AM
From my (non-lawyer) reading of Matlock, it seems to be in agreement with the current case (Fernandez v. California).
So Georgia v. Randolph was over-ruled, and the situation now is that Fernandez v. California restores what was found in Matlock.
United Stats v Matlock
When the prosecution seeks to justify a warrantless search by proof of voluntary consent it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.
The entire ruling is HERE [findlaw.com]. See especially section IV Where it is clearly spelled out that only one party need consent.
Be beyond that, I have to ask where are you going with this?
You don't accept the current supreme court decision, so you show OLDER supreme court decisions as evidence? (And apparently miss the fact that one of those agrees with the current one).
I'm not sure it makes sense to appeal to an older ruling which was clearly over turned by the newer one.
No, you are mistaken. I've always had this sig.
(Score: 2) by Angry Jesus on Sunday March 02 2014, @12:48AM
From my (non-lawyer) reading of Matlock, it seems to be in agreement with the current case (Fernandez v. California).
Again you misunderstand.
You were not talking about Fernandez v California - that's a case where the person denying access was no longer present. You made a claim that even people who are present should be over-ruled by their co-tenants. Fernandez has nothing to say about that point and Matlock never asked the guy because he wasn't present.
(Score: 0, Flamebait) by rts008 on Friday February 28 2014, @09:22PM
No, she could NOT go inside to 'got the kid for them' because she answered the door with the kid in her arms!
Stupid git....RTFA, n00b.
(Score: 2, Informative) by n1 on Friday February 28 2014, @06:45PM
I find it hard to argue with the logic in this case, and also explains the gender divide. It is what I had assumed based on the other reply to my comment. The divide is on the fear of an abusive male refusing entry to hide abuse of child or indeed partner.
I would have assumed the cause for the search being a 911 call made from the property by an occupant. How this ruling will then be used is my concern at this point. Bored police getting consent from children or non-residents with no circumstances other than perhaps a 'smell' or 'noise'.
(Score: 1) by hatta on Friday February 28 2014, @07:06PM
The divide is on the fear of an abusive male refusing entry to hide abuse
I don't see why anyone would consider this sufficient reason to commit a warrantless search. Any male, or female for that matter, could refuse entry to their home to hide abuse. If that justfies a warrantless search, then we could all be searched at any time.
(Score: 1) by n1 on Friday February 28 2014, @11:03PM
You are correct. Certainly not agreeing with it. Just trying to understand the logic to the decision. As refusing entry could be seen as evidence as to why the search was warranted. "if you have nothing to hide..."
(Score: 2) by SMI on Saturday March 01 2014, @12:03AM
Correct. There are reasons that warrants exist, and one of those reasons is to nullify issues like this when it goes to court.
(Score: 1) by deimtee on Saturday March 01 2014, @01:42AM
I think you slightly misunderstand the purpose of warrants. It is to provide oversight of those executing searches, not a free 'search anyone card'.
Theoretically, the officers involved are supposed to provide sufficient justification for the search such that the search is not 'unreasonable'. They are then issued a warrant to carry it out.
If you cough while drinking cheap red wine it really cleans out your sinuses.
(Score: 2) by SMI on Saturday March 01 2014, @02:43AM
Informative post, although I do understand that point and value the idea behind it.
What I was eluding to is that if they had followed the established procedures for checks and balances (by getting a warrant, even if they didn't strictly have to), this case wouldn't have gone all the way to the supreme court. If it hadn't, such a precedent wouldn't have (yet) been established.
(Score: 1) by Runaway1956 on Friday February 28 2014, @07:45PM
Domestic disturbance. The person calling the cops has already implied consent to their entry. When they specifically ask for permission to enter, that person gives explicit consent. Doesn't matter to much whether the accused objects or not. Common law or not, the wife has the right and the authority to grant permission to enter, as well as to search the premises.
Maybe the asshole should have spent more time keeping Momma happy, instead of abusing the child.
(Score: 3, Informative) by rts008 on Friday February 28 2014, @09:44PM
While I agree with you in principal, that is not what happened here.
There was no child abuse, and the cops were not called. They just showed up looking for suspects in a stabbing and robbery.
FTA:
That's a little bit of a different situation, IMO.
This case is exactly why we have trials and make attempts to make judicial systems fair, instead of just having laws and executioners.
Sometimes things are not binary/black or white...there are a lot of grey areas in there you have to address.
After hitting preview, I have to ask: "Where is proper unicode support, already?" WTF??!!?? Come on...
(Score: 5, Informative) by Dutchster on Friday February 28 2014, @07:21PM
The person has to have the apparent authority to consent to a search. Apparent authority != actual authority. So for instance the police come to a house with a plumbing truck in the driveway. The plumber answers the door and when asked if the police can search says "I'm just here to fix the toilet." He does not have the apparent authority to give consent to search the bedroom. On the other hand the cops show up and a middle aged woman answers the door and says "yes, please come in." If it later turns out that she no longer lives in the house well then that's too bad for the homeowner; he shouldn't let his guests answer the door and invite people in.
There is no bright line in this analysis because it's going to come down to what a reasonable person would have believed at the time consent was given based on the totality of the circumstances.
I'm a volunteer police officer and this sort of thing comes up from time to time. Usually it has to do with underaged drinking parties. We knock on the door and some drunk dude opens the door acting like he owns the place. We see clearly underaged individuals drinking on the premises (perhaps even the guy answering the door) and go from there. Invariably some lawyer will try to argue that the kid who answered the door didn't have the authority to let us in. That confuses the issue with the fact that all he did was open the door and allow anybody on the street to plainly see illegal activity going on inside.