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posted by Dopefish on Friday February 28 2014, @06:00PM   Printer-friendly
from the freedom-is-not-free dept.

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?"

 
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  • (Score: 3, Insightful) by ikanreed on Friday February 28 2014, @06:22PM

    by ikanreed (3164) Subscriber Badge on Friday February 28 2014, @06:22PM (#8659) Journal

    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.

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  • (Score: 2) by Nerdfest on Friday February 28 2014, @06:29PM

    by Nerdfest (80) on Friday February 28 2014, @06:29PM (#8668)

    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

      by hubie (1068) on Friday February 28 2014, @06:45PM (#8679) Journal

      Actually, from TFA:

      In 2009, the Los Angeles Police Department sought suspect Walter Fernandez, believed to have stabbed someone in a violent gang robbery. When police first arrived at the suspect's home, they heard yelling and screaming before Fernandez's live-in girlfriend Roxanne Rojas answered the door, appearing "freshly bruised and bloody," and with an infant in hand, according to argument recap by SCOTUSblog.

      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

    by emg (3464) on Friday February 28 2014, @06:37PM (#8670)

    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

      by frojack (1554) on Friday February 28 2014, @06:59PM (#8693) Journal

      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:

      Could this lead to police arresting people objecting to searches to remove the need for warrants?"

      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

        by Angry Jesus (182) on Friday February 28 2014, @07:24PM (#8707)

        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

          by frojack (1554) on Friday February 28 2014, @08:03PM (#8730) Journal

          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

            by Angry Jesus (182) on Friday February 28 2014, @08:21PM (#8742)

            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

              by frojack (1554) on Friday February 28 2014, @08:51PM (#8764) Journal

              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

              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

                by Angry Jesus (182) on Friday February 28 2014, @09:44PM (#8811)

                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

                  by frojack (1554) on Friday February 28 2014, @09:56PM (#8821) Journal

                  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

                    by Angry Jesus (182) on Friday February 28 2014, @10:02PM (#8830)

                    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

            by hemocyanin (186) on Friday February 28 2014, @08:28PM (#8749) Journal

            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

        by emg (3464) on Friday February 28 2014, @07:34PM (#8718)

        "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

          by Runaway1956 (2926) Subscriber Badge on Friday February 28 2014, @07:53PM (#8727) Journal

          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.

          --
          “I have become friends with many school shooters” - Tampon Tim Walz
        • (Score: 2) by frojack on Friday February 28 2014, @08:05PM

          by frojack (1554) on Friday February 28 2014, @08:05PM (#8731) Journal

          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

        by Angry Jesus (182) on Saturday March 01 2014, @10:22PM (#9262)

        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:

        "[W]hen people living together disagree over
        the use of their common quarters ... a resolution must come
        through voluntary accommodation, not by appeals to
        authority." 547 U. S., at 113–114.

        See also United Stats v Matlock(1974) at 114-115:

        [T]here is no common understanding that one co-tenant
        generally has a right or authority to prevail over the ex-
        press wishes of another, whether the issue is the color of
        the curtains or invitations to outsiders. ...
        [T]he cooperative occupant's invitation adds nothing to
        the government's side to counter the force of an objecting
        individual's claim to security against the government's
        intrusion into his dwelling place.

        • (Score: 2) by frojack on Sunday March 02 2014, @12:28AM

          by frojack (1554) on Sunday March 02 2014, @12:28AM (#9292) Journal

          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

            by Angry Jesus (182) on Sunday March 02 2014, @12:48AM (#9302)

            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

      by rts008 (3001) on Friday February 28 2014, @09:22PM (#8793)

      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

    by n1 (993) on Friday February 28 2014, @06:45PM (#8680) Journal

    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

      by hatta (879) on Friday February 28 2014, @07:06PM (#8696)

      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

        by n1 (993) on Friday February 28 2014, @11:03PM (#8868) Journal

        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

        by SMI (333) on Saturday March 01 2014, @12:03AM (#8897)

        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

          by deimtee (3272) on Saturday March 01 2014, @01:42AM (#8928) Journal

          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

            by SMI (333) on Saturday March 01 2014, @02:43AM (#8940)

            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

    by Runaway1956 (2926) Subscriber Badge on Friday February 28 2014, @07:45PM (#8724) Journal

    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.

    --
    “I have become friends with many school shooters” - Tampon Tim Walz
    • (Score: 3, Informative) by rts008 on Friday February 28 2014, @09:44PM

      by rts008 (3001) on Friday February 28 2014, @09:44PM (#8812)

      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:

      In 2009, the Los Angeles Police Department sought suspect Walter Fernandez, believed to have stabbed someone in a violent gang robbery. When police first arrived at the suspect’s home, they heard yelling and screaming before Fernandez’s live-in girlfriend Roxanne Rojas answered the door, appearing “freshly bruised and bloody,†and with an infant in hand, according to argument recap by SCOTUSblog.

      Fernandez was spotted by police, and said, “Get out. I know my rights. You can’t come in.†Yet police arrested him on charges of domestic violence. Later, once Fernandez was out of the home, police asked Rojas for permission to conduct a search, which yielded evidence implicating Fernandez in the robbery.

      The Court’s decision justified the police actions, with Justice Samuel Alito writing the majority’s position.

      “A warrantless consent search is reasonable and thus consistent with the Fourth Amendment irrespective of the availability of a warrant,†Alito wrote. He added that “denying someone in Rojas’ position the right to allow the police to enter her home would also show disrespect for her independence.â€...[...]... “Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present,†he wrote. “We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared.â€

      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...