Was his Constitutional rights violated? How would you vote?
I can’t open pdf files at work. Summarize, please?
What’s the issue, whether a non present resident of a premises has a right to withhold consent to search?
I agree with the majority. If you’re not there, and someone who is and has a right to grant access does so, that’s fair game.
Yes, but first when he was there he said NO, and the Q was, even though he said NO, once removed, does that cancel Randolph?
I also found this summary.
Like I said, I agree with the majority. Once removed, he no longer has sway over the consent or lack thereof. That seems like a good bright line distinction that can be followed. The alternative becomes rather nebulous - how long does his refusal control for? What if another agency wants to search and is ignorant of his past refusal?
This highlights the importance of your choice on who to live with.
Here’s my question. Can a roommate give consent to non-common areas? Like if the police want to search my lockbox in my room in a bureau, can he give consent?
Not generally non common areas, right on that!
Since both were present 1st and he said no, but when he was removed the roommate said yes, Bone has a good point!
However, they could have easily ruled Randolph as expanded to include Fernandez’s claim, since he did say NO, when both were present 1st.
Might that not depend on whether there is a formal agreement signed by the occupants? Let’s say that someone owns the home outright and others sign contracts(or come to some other formal agreement) to rent out individual bedrooms/spaces within the home.
From United States v. Matlock,* “the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.”* This is commonly referred to as third party consent.
In general, any common areas may be searched as long as one roommate consents and no other roommates present object. Anything that the consenting roommate has apparent authority over is subject to search once consent is given. Unlocked areas would probably count. Locked containers would not (unless the person giving consent has a key). Bedrooms in general may be arguable, but there are good faith exceptions given to police when conducting these searches.
Here is an internal quote from Fernandez, and as far as I can read, the EXACT area the contraband was found was never stated, anyone read different?
He first argues that his absence should not matter since it occurred only because the police had taken him away. Dictum in Randolph suggesting that consent by one occupant might not be sufficient if “there is evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possibleobjection,” 547 U. S., at 121, is best understood to refer to situationsin which the removal of the potential objector is not objectively reasonable. Petitioner does not contest the fact that the police had reasonable grounds for his removal or the existence of probable cause forhis arrest. He was thus in the same position as an occupant absentfor any other reason. Pp. 9–10.
FYI - here’s a PDF of an Alameda County DA’s office describing the different kinds of third party consent. It has citations. I don’t think it’s been updated for the recent Fernandez ruling.
But isn’t the issue more like the police ask to search the premises. Alan says yes and Brett says no. The police then “detain” Brett or otherwise move him from th room then ask again and Alan consents and so it is a legal search.
So if a cop pulls me over and asks to search my car and I say no, doesn’t that imply that while one cop gives me a field sobriety test they can ask the passenger if they can search my car which would overrule my objection?
Subject to correction by a real lawyer, I suspect a passenger would not have common authority over a car in which he or she was merely riding. Maybe if the passenger’s name is on the title.
IIUC, this Fernandez case says that, if an objecter is removed from the scene, not because he or she refuses to consent to a search, but on grounds that are otherwise reasonable, then the police can get consent to search from anyone else who has common authority over the spaces to be searched.
I don’t believe Georgia vs. Randolf has been applied to vehicle searches, at least at the federal level. Here is a case in Texas criminal courtwhere a lower court did apply Randolf and the appellate court reversed and remanded saying that Randolf didn’t apply to vehicle searches.
This would imply that as long as one person who has apparent authority over the space in the vehicle consents, this overrides the refusals.
This highlights the importance of your choice on who to travel with.
The first question you should be asking is why you answered the door in the first place. If they want to come in and talk and detain you, they can get a warrant. Otherwise, gtfo.
Excellent research Bone!
As long as the reason for removing Brett from the room was not for the purpose of allowing Alan’s consent to govern.
That’s a pretty fine line, and hard to prove police intent, which is the critical issue here. I can foresee an arrest for the express (but not admitted) purpose of removing Brett. After all, police can always drop the case later, after the search is done, with minimal consequences.
In practice it might not be that fine of a line. There’s already a pretty extensively litigated body of law about what the police are allowed to do as far as moving you around or initiating the kind of “detention” (quotes are Saint Cad’s) we’re talking about here. It’s not like the police are just going to walk around the corner and beckon you to follow, and then sneak in behind you and toss your house.
Regardless of his desire to get Brett out of there, John Law either does or doesn’t have a legal justification. If he doesn’t and he removes Brett from the premises, that’s a problem already, whether they search or not.
But in Fernandez, “Brett” “[did] not contest the fact that the police had reasonable grounds for his removal or the existence of probable cause for his arrest.” If the arrest is legal but the cop subjectively is only exercising his authority to effectuate it because he wants to get consent to search… eh, that’s a hard abuse to get worked up about, and this is coming from somebody who brings a fair amount of already-worked-up-about to the table when it comes to criminal procedure.