The Weakest Link Approach

There has been a good deal of moaning over the demise of the 4th Amendment after the Supreme Court’s opinion in Fernandez v. California, where Walter Fernandez’s refusal to allow police to enter his apartment was forgotten after the cops took him away and later returned to obtain the consent of his girlfriend.

Was the rule of Georgia v. Randolph dead? Did “no” no longer mean no if the police shuffled the naysayer from the premises, leaving behind a more consenting occupant?  Not even if there was ample opportunity to get a warrant, the tedium of the effort notwithstanding?

Fernandez isn’t the death of the 4th Amendment, largely because it’s hard to kill something that’s already moribund.  Consent to search is often talked about as an exception to the warrant requirement of the 4th Amendment, but it’s really not. Rather, it’s the absence of invocation of the right protected, the right to be secure in one’s papers and effects.  In analyzing consent to search cases, this distinction matters, because consent ends the inquiry, swiftly, easily and conclusively.  It’s also why the Fernandez opinion went off the rails.

The 6-3 majority opinion was written by Justice Sam Alito, which for anyone with the slightest interest in such things, means the defendant loses. But then, the issue for which cert was granted foretold that outcome.

Proper interpretation of Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), specifically whether a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously-stated objection, while physically present, to a warrantless search is a continuing assertion of 4th Amendment rights which cannot be overridden by a co-tenant.

Missing from the issue are two key facts: that Walter Fernandez had, while standing in the doorway of his home, refused the police entry, thus asserting his right to be secure in his home, and that, when the police returned to seek the consent of his co-tenant, after Fernandez had affirmatively invoked his right, he was no longer present because the police arrested him and removed him from the premises.

The defendant never had a chance.

In one of the most laughably disingenuous lines to be found in a Supreme Court opinion, Alito wrote:

Denying someone in Rojas’ position the right to allow the police to enter her home would also show disrespect for her independence. Having beaten Rojas, petitioner would bar her from controlling access to her own home until such time as he chose to relent. The Fourth Amendment does not give him that power.

The 4th Amendment gives him, or any suspect of a crime, precisely that power. It protects the rights of the good and bad alike, and Alito’s sudden concern for respecting Rojas’ independent right to facilitate a police search rubs salt in the wound.

In dissent, Justice Ginsburg fixes on the fact, undisputed and undisputable, that the police could have sought a search warrant, having their target in custody and not even an arguable exigency to force them to move forward without one:

Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it, never mind ample time to secure the approval of a neutral magistrate.

This reflects the 4th Amendment black letter rule, that a warrantless search is presumed unconstitutional in the absence of a warrant or an exception.  In other words, a warrant is theoretically favored if the right is invoked.  But then, consent is the absence of the invocation of the right rather than an exception.  The 4th Amendment does not forbid a person from inviting or allowing police to enter their home. It is not a constraint on the occupant, but on the police.

The majority does some facile gymnastics to do as the dissent contends, circumvent the problem raised by Randolph, where it held that once an occupant has invoked his 4th Amendment rights, another occupant can’t uninvoke them.

A physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant.

But the Randolph Court, in a moment of clarity, foresaw the problem coming in Fernandez:

So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance specifically to avoid a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant’s permission when no fellow occupant is on hand, the other according dispositive weight to the fellow occupant’s expressed contrary indication.

Let this be a lesson for those who are slaves to precedent, or at least dicta, that it’s only availing when it serves the greater good, as decided by a majority of the court.  Otherwise, it’s not.

What Fernandez does is address the gap opened in Randolph that would allow an occupant to assert the right to refuse entry to the police and trump their hopes and dreams of a free pass that might have come from another occupant.  This is certainly a problem when the police perceive a strong link and a weak link in the chain. Imagine if there was only a twelve-year-old left in the home after the police arrested and removed the adults, and once they were off-premises, the police politely asked the child for permission to search.

The Court had the opportunity to stick with the Randolph dicta, and uphold the notion that “no means no,” and an assertion of rights once made could not be circumvented by arresting and removing the objector until they were left with a compliant occupant, or uphold the dignity and independence of the last person standing, who was entitled to her right to consent despite any prior invocation of rights by another.

At the WaPo Conspiracy, Orin Kerr analyzes the opinion from the physical presence angle, which makes sense given the question presented, but neglects to consider the nature of consent versus assertion of rights.  Once a valid invocation of rights occurs, as happened here, does it disappear by physically removing the person from the premises and going for a Mulligan?

The Supremes answered that it does, mapping the path for the police to circumvent the warrant clause altogether.  After all, being forced to obtain a warrant is a minor effort lot of work, and it’s not like they wouldn’t get it anyway.  As long as there is a weak link to be found, who might willingly open the door, shouldn’t we respect that weak link’s independence?


8 thoughts on “The Weakest Link Approach

  1. John

    Reading the opinion it felt like the majority was just trying to find excuses to give the police a reason to sidestep the warrant. But I also thought the majority’s discussion of customary social usage to be a joke. Alito wrote “When the objecting occupant is standing at the threshold saying “stay out,” a friend or visitor invited to enter by another occupant can expect at best an uncomfortable scene and at worst violence if he or she tries to brush past the objector. But when the objector is not on the scene (and especially when it is known that the objector will not return during thecourse of the visit), the friend or visitor is much morelikely to accept the invitation to enter.”

    I don’t know about others but if I had been expressly told not to come into someone’s house their mere non-presence would give me pause to go in because I don’t know when they will be back and then a confrontation will occur. Of course I would not feel any trepidation about that if I had arrested the guy and he was in lockup so I knew there was no chance he could come around.

  2. Jack

    Well, at least police won’t have to deal with the tedium of getting a warrant ever again. How many people, weak link or not, are going to assert their rights after watching their significant other get arrested for, I mean coincidentally and after, refusing entry when the police ask “So are you next? ….Orrrrr, can we pretty please come in, with sugar on top?”

    1. SHG Post author

      Ever again? Nah. This decision goes nowhere near that far. I know how hard it is to not call the warrant clause dead and buried, in light of its being swallowed by exceptions and excuses, but it’s still gasping for air.

      1. Jack

        The first sentence was just sarcasm referring back to your post and Gideon’s post from the other day. While I still believe there is a 4th Amendment buried somewhere beneath all the exceptions, this decision just seems like tacit judicial approval for coercion as an end run around a warrant. Sure, the opinion says “So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance specifically to avoid a possible objection” – but reality.

        After arresting the uppity guy who insists he has rights, they get the bonus of threatening to arrest “weak link” too all while parading their significant other around in cuffs. And of course, it wouldn’t be complete without threatening to take the kids away because they would both be in jail.

        I don’t even think my family, who is well educated, has the means to fight something like this, and are very, very mistrusting of the police would deny entry after watching that. If even we wouldn’t deny entry, what chance does a family with something to lose stand? Someone that would lose everything just by being arrested with no means to fight doesn’t really have rights in this situation do they?

        1. SHG Post author

          Submission to the shield has long been a problem. But some submit and some do not. It’s not always easy to provide a generic answer as to why people react the way they do. We’re just an unpredictable species.

      2. pvine

        The upcoming warrantless cellphone search cases (Wurie & Riley) will show that the warrant clause has taken its last breath. Henceforth, its reasonableness clause big brother will control the 4A.

        1. SHG Post author

          Yeah, I’m not looking forward to Wurie & Riley. It will be a huge test of the Court’s vision of 4th Amendment applied to technology, and could be devastating. I’m hoping against hope that they realize the damage they could cause.

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