The U.S. Supreme Court ruled in February that law enforcement officers can legally search a residence after one person living there initially denies them consent to conduct the search if another legal occupant afterward does give them consent to search.
In a 6-3 ruling, the court decided against a 28-year-old California inmate and gang member who had challenged the October 2009 search of his Los Angeles apartment, which was conducted when his girlfriend gave officers permission after he was in custody.
Walter Alberto Fernandez had claimed he was trying to leave his L.A. gang and criminal life behind him when his apartment was searched. Initially, police were investigating a robbery. After hearing screams coming from the apartment Fernandez shared with his girlfriend, Roxanne Rojas, and after seeing that Rojas appeared to have been beaten, they took Fernandez into custody. At the time, Fernandez told police, “You don’t have any right to come in here.” However, police returned to the apartment after Fernandez was arrested.
According to a story in the San Francisco Chronicle, Rojas consented to allow police to search the apartment after about 20 minutes of being questioned and threatened by police. They said they would take her son away from her if she did not consent to the search, she claimed. During the search, police found gang paraphernalia, a butterfly knife, ammunition and a sawed-off shotgun. Fernandez is currently serving a 14-year sentence after pleading no contest on firearms charges after being convicted of robberyand inflicting corporal injury.
The court’s split ruling said that the girlfriend’s eventual consent was sufficient, even though Fernandez had previously denied permission.
Alito is a former federal prosecutor with a history of supporting law enforcement in cases that appear before him. “Any other rule would trample on the rights of the occupant who is willing to consent. Such an occupant may want the police to search in order to dispel suspicion raised by sharing quarters with a criminal.”
Alito also warned of “practical complications” if the refusal to consent by Fernandez was upheld. The justice suggested a possibility where a refusal to give consent to search a dwelling could last through a long prison term. It would require police to have a search warrant, which could possibly hinder detectives who were trying to solve crimes.
