That sounds similar to one party to a conversation having the right to consent to tapping a conversation without a warrant.
Not that I disagree with one party consent for audio recording, but you’ll have to expand on why you think that’s similar to a consent search of a premises. I can’t see any similarities.
I agree with the dissent. A home is a protected place. A search should only be done with a warrant or another exception and “consent” should only be done without a known objection. This dude objected and the police knew it, so that objection should stand.
How long does it last? Forever or until he revokes it. He should have the right to protect his home from searches unless the police can get a warrant.
I generally think the 4th amendment has been gutted and it’s ridiculous the amount of lattitude that is granted police when performing searches. In this case however, I think the balance is appropriate.
What if the guy is arrested (unrelated item) and later convicted and incarcerated for 20 years. Does his refusal follow for that time? What if the person that witnessed the refusal is not on duty and the next shift comes on, should they also be prohibited? What if a different LEO agency requests permission to search, are the prohibited too? What if the property is later rented to another person, does the refusal still hold?
All of these things cause problems. The law should create bright line distinctions whenever possible. Saying that an objecting person must be present to override others’ authorization fits that criteria and seems reasonable to me.
How’s this for a bright line: if the police want to search a private residence without a warrant, they should be required to get explicit consent from every adult resident. If that’s too much trouble, get a warrant.
Is there a database that exists that will let the police know of every adult resident when they ring the doorbell? They go to a house, ring the bell, ask, “may I come in?” and the person says yes, but you’d have it so that’s not good enough?
Seems unworkable.
I’m leaning with the dissent also.
Good point.
I wonder how many of those doormats police have stood on holding warrants and feeling smug.
This is an excellent (though inadvertent) summation of my view. The fact that the occupant refused consent is more significant once he’s been arrested, not less. This holding merely invites the police to arrest people to make it easier to effectuate a warrantless search.
Another good point!
The nuance is the arrest can not be in an effort to elicit consent from the remaining occupants. If the police have grounds for arrest, they will be able to search anyways so that’s not the question at hand really. That would be more of a complaint against wrongful arrest.
Fernandez didn’t contest his arrest in this case either.
How do you resolve the issues I posited above, or do you not see them as significant issues?
We could have a system like the recording laws for land. Actual or constructive knowledge by the police should be the standard. If you wish to be a resident of a home for search related purposes, you should be able to record your interest with the County Clerk (or your state’s equivalent). The police can do a mini electronic title search to see who has an interest in the property. If your name is listed, any search is invalid as to you unless you have consented.
I don’t believe any arguments that this would be cost prohibitive. If the police can know that I was arrested by not convicted of a petty misdemeanor 15 years ago, they can know that I’ve filed a document with the County Clerk. Put it in the same system.
Also, keep in mind this “consent” is basically a waiver of a right protected in the Bill of Rights. I’m not sure we need a quick and easy system for the police to fast track their way into these exceptions. For example, jury trials, I mean, it’s such a pain in the ass to get people to waive their jury trials. Can’t the police have a easier way just to get people to plead guilty?