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Supreme Court Search Warrant Requirement

The Supreme Court is Chipping Away at the Search Warrant Requirement

The Supreme Court held on February 24, 2015, that Police can search a home without a warrant even when one of the occupants objects. The issue for the Court happened because the police searched the home of a man in Los Angeles after he expressly told them they couldn’t. The Police arrived at the home of Walter Fernandez, after following him from the scene of a robbery. Upon their arrival, he informed them they were not permitted to come in. Fernandez was then arrested and the Police returned an hour later and spoke to another occupant of the home who gave permission for the Police to search despite the prior objection. When the Police searched, they found evidence which ultimately led to a 14 year jail sentence for Fernandez.

The Supreme Court ruled that if occupants of a residence disagree about whether they will consent to a search of the residence, the occupant who objects must be physically present. This is so, even where an occupant objects but is later absent and the only reason he is absent is because the police have removed him. Previously, the Court ruled that the consent of one occupant is not enough to allow police to search where there is another occupant present who objects. If there is not unanimous consent, the police would need to get a warrant based on probable cause.

Some argue that this ruling erodes the freedom to be free from unreasonable searches as guaranteed by the fourth amendment. They argue that if there is more than one occupant and one objects, while the other consents, all the Police need to do is find a reason to arrest the objector. They could then remove him from the scene and have access to the residence they want to search without getting a warrant.

The Court responded to this argument that it would be disrespectful to the consenting occupant’s ability to make an independent decision and control access to her own home. The objection leaves with the objector and the one who remains should control access.

Although not addressed by the Court, the question arises as to whether the Court will be required to review the validity of the arrest which removes an objector from his home. Would the Court allow a pre-textual arrest to form the foundation of consent? We will have to wait and see.

For more information, contact Ron Phillips, Esq. at 302-855-9300 (Georgetown) or 302-422-9300 (Milford) 302-628-9300 (Seaford).

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