The Supreme Court Has Just Given The Police Another Way To Search Your House Without A Warrant

from the 4th-amendment-now-mostly-holes dept

A few days ago, the Supreme Court handed down a decision that effectively grants law enforcement and investigative agencies the power to search your home without a warrant. Here’s what led to this unfortunate bit of precedent.

At issue in Fernandez v. California was a 2009 search by the Los Angeles Police Department of the home of a robbery suspect. When the officers first arrived, suspect Walter Fernandez denied them entry, but because his girlfriend Roxanne Rojas exhibited signs of recent injury, Fernandez was arrested on separate charges of domestic violence. While Fernandez was being booked, one of the officers returned to the apartment and gained Rojas’ permission to conduct a search, which soon turned up evidence linking Fernandez to the robbery.

Writing for a 6-3 majority, Justice Samuel Alito upheld the LAPD’s actions. “A warrantless consent search is reasonable and thus consistent with the Fourth Amendment irrespective of the availability of a warrant,” Alito wrote. Moreover, he added, “Denying someone in Rojas’ position the right to allow the police to enter her home would also show disrespect for her independence.”

On one hand, this does make some sense. Multiple adult occupants should have some stake in control of the residence. But as Fernandez pointed out in his arguments, his refusal to let the police search the apartment without a warrant was disregarded once he was in custody. Fernandez felt his objection should still stand despite being arrested. (And one would think it would — police still need a warrant to search the premises of arrested individuals.) Because he was no longer at the residence to object, the police went back and got permission for a warrantless search from his girlfriend.

The court argues somewhat elliptically (quoting from 2006’s Georgia v. Randolph) that because Fernandez was no longer there to object, any “reasonable person” would have felt confidence in accepting the remaining individual’s invitation to search the premises.

“[I]t is fair to say that a caller standing at the door of shared premises would have no confidence that one occupant’s invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, ‘stay out.’ Without some very good reason, no sensible person would go inside under those conditions.” Id., at 113.

It seems obvious that the calculus of this hypothetical caller would likely be quite different if the objecting tenant was not standing at the door. 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 the course of the visit), the friend or visitor is much more likely to accept the invitation to enter. Thus, petitioner’s argument is inconsistent with Randolph’s reasoning.

But cops are neither “friends” nor “visitors.” They are government officials in possession of a great deal of power. And they are supposed to obtain warrants to search premises if there’s an objection. The conclusion the court reaches here has effectively given law enforcement (yet another) route around the Fourth Amendment.

If one person objects, but the other says “yes,” then all the police have to do is detain the objector and search the residence with the other person’s permission. The court cautions against meritless detainment and states that evidence obtained in this underhanded fashion will be less likely to hold up in court. But that’s a statement the court has to want to believe to defend its conclusion. There is simply no reason to believe that any law enforcement officer won’t be able to find some charge to throw at the objector in order to remove them from the equation. Even if the arrest turns out to be spurious and used solely to remove the objector, the objector still has to suffer through detainment, and then, if the search turns up anything, fight to get the illicitly-obtained evidence thrown out. Neither of these are pleasant for the person who simply decided to assert his Fourth Amendment rights.

The dissenting opinion correctly notes that the majority’s decision shrinks the protections of the Fourth Amendment. Judge Ruth Bader Ginsburg writes:

“Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it, nevermind ample time to secure the approval of a neutral magistrate.”

The “ample time” is an excellent point. Fernandez was arrested. He wasn’t going anywhere, so the police had plenty of time to secure a warrant without worrying that the detainee would destroy evidence. But they chose not to. And they took this case all the way to the Supreme Court.

How hard is it to get a warrant? In court, agencies act like it’s a nearly insurmountable obstacle, when in fact (in most jurisdictions), it’s rarely more than a rubber stamp process. Very rarely does any judge challenge law enforcement officers’ claims made “upon information and belief.” If time is absolutely of the essence, there are emergency exceptions which can be used (and often, abused).

But law enforcement and investigative agencies don’t like obtaining warrants. Despite this protection being a part of this country for nearly its entire existence, these entities have worked tirelessly to eliminate the small requirement that they show probable cause before performing searches. Gideon at A Public Defender quotes yet another law enforcement official talking about the terrible hardship that is securing a warrant.

“I mean, it’s like, oh my gosh, as if!” said Wethersfield, CT police chief James Cetran when asked whether obtaining cell phone records of citizens of Connecticut should require a showing of probable cause. Warrants based on probable cause are, like, so “tedious”, he followed up. Further:

“It makes things faster, easier and better for us,” said Cetran. “It’s something you can do within minutes, not hours.*

“Best of all, of course, would be no requirement to get a pesky judge involved, but I’m feeling like a fat cat from where I’m sitting already, so…” he most certainly did not say, but I’m going to pretend that he thought it to himself nonetheless.

*Gideon from A Public Defender feels it should be noted that this quote was the only thing Chief Cetran actually said. Everything else surrounding it is Gideon’s embellishment.

These entities already have warrantless access to tons of data and they’re still not satisfied. The following is a small list of the information available to law enforcement, investigative and security agencies without a warrant. (There are, of course, some exceptions state-to-state.)

Call records
License plate data
Cellphone location data
Hotel/motel registration
Drug prescription data
Email over 180 days old

Almost anything considered a “business record” can be obtained without a warrant thanks to the Third Party Doctrine. The contents of your cellphone may be accessed without a warrant, thanks to courts comparing cellphone contents to the contents of your pockets or address books. Every agency in the nation has some form of “exigent circumstances” exceptions to use instead of warrants, which further weakens the Fourth Amendment.

As Gideon points out, the state of Connecticut already has a built-in workaround for police to (ab)use to skirt the Fourth Amendment.

In Connecticut, unlike, say, in MA [PDF], police departments can obtain cell phone records of anybody by getting a judge to sign an “ex parte application.“

The difference is that the ex parte application merely requires a showing of ‘reasonable and articulable suspicion’, which is the standard that police need to meet in order to stop you on the street and ask you a question, as opposed to ‘probable cause’, which is what they need to search you, your house, your car, or to arrest you. It’s a much lower standard and one that’s only slightly higher than “because I felt like it”…

Which brings me to the second thing: as per Colli’s report, it seems that of the 13,000+ ex parte applications made since 2005, not a single one has been rejected.

Not one in over 8 years. And you think the FISA court was an NSA rubber stamp? Are you confident that all 13,000+ requests involved people whom the police had reason to believe were committing or had committed a crime?

Despite all of this warrantless access, agencies still complain that getting a warrant slows down the “process.” The state of Massachusetts plans to appeal the recent state supreme court decision that stated that warrantless access to cellphone location data violates the state constitution by arguing that the law enforcement agency had enough probable cause to get a warrant. That’s the state’s trump card: because it could have obtained a warrant, it should be allowed to access this data without a warrant.

This logic is as horrendous as it is self-serving. State law enforcement agencies want this loophole left open because they want the freedom to grab records without having to worry about probable cause. The agency could have obtained a warrant, it still chose not to — to grab historical data, no less, as if time was even a factor.

The Supreme Court has just carved another path around the inconvenient amendment, one that allows law enforcement to search your residence without a warrant or your permission. All they have to do is find one resident who will say, “yes.” And while they perform this warrantless search, you’ll be locked up. This tilts the power balance entirely. You, the citizen, will be completely stripped of the few rights you do have while law enforcement tosses your house for whatever it can find. The US Supreme Court has just cast its vote for the expansion of the police state and trimmed some more flesh from the desiccated body of the Fourth Amendment.

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Comments on “The Supreme Court Has Just Given The Police Another Way To Search Your House Without A Warrant”

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That One Guy (profile) says:

Half of the reason

While ‘getting warrants takes too much time and effort’ is the usual lie trotted out, that misses the second, and I’d say greater reasons so many ‘law’ agencies are so allergic to warrants: accountability and a paper trail.

Getting a warrant requires going before a judge, stating exactly what they’re looking for, and where they plan to search. Anything found, or anything searched beyond that would fall outside the bounds of the warrant, and therefor be inadmissible.

So no ‘grab everything and sort it out later’, no ‘I think this person might be guilty of something, so snag all their data just in case’, none of their favorite tricks to spy on people, either have a solid enough case to justify before a judge, or no data grabbing.

OldMugwump (profile) says:


I don’t think this is quite as bad as Tim & some of you commenters are making out.

Not only do the cops have to arrest you, they also have to find someone who lives with you who is a total asshole.

If you live with somebody like that, and have incriminating evidence at your home, you already have a problem – you roommate/lover/spouse/whatever can narc you, or blackmail you, any time.

Don’t cry wolf. This is a bad call, but it’s minor compared to a lot of other stuff. Overreaction damages credibility.

btrussell (profile) says:

Re: Re: Overreaction?

“…they have to have permission to search your place from someone who lives there.”

What right do you have to come into my bedroom, or any other area we aren’t sharing, or to give someone else permission to enter my bedroom?

This story isn’t just about a couple with one of them being abused, it is about sidestepping the law.

That One Guy (profile) says:

Re: Re: Re: Overreaction?

‘Gone’? Not yet, but every little bit that chips away at them, every ‘exception’, every ‘loophole’ opened makes them weaker.

You start with hard and fast rights, ones that trump everything else. Then rulings like this add a few ‘limited exceptions’, times when those ‘rights’ no longer apply. Then a few more cases, and the ‘limited exceptions’ become less and less limited, and more and more numerous.

Give it enough time, and enough ‘exceptions’, and the ‘rights’ change into ‘privileges’, things those in power don’t owe you, but will ‘graciously’ allow you, as long as they deem it acceptable and don’t have any pressing reasons not to.

‘Death by a thousand cuts’ essentially.

Anonymous Coward says:

Re: Underreaction

Not only do the cops have to arrest you, they also have to find someone who lives with you who is a total asshole.

I think you are underreacting. How many members of your family would casually say something along the lines of “Sure, I have nothing to hide” when an officer requests consent to a search? Even ignoring official intimidation or dirty tricks, are you sure everyone who lives with you will be appropriately zealous in asserting their (and by extension, your) rights when you are not around to be the one to say “I do not consent to a search. If you intend to search anyway, please get a warrant.”?

If you live with somebody like that, and have incriminating evidence at your home, you already have a problem – you roommate/lover/spouse/whatever can narc you, or blackmail you, any time.

There are so many different, often stupid, laws on the books that inviting a fishing expedition into your house is stupid even if you are unaware of any incriminating material. In some ways, this is the most dangerous situation, because if neither you nor your family realize the material is incriminating, none of you will make any effort to eliminate it or protect it from a search. Remember also that the question is not whether the material is evidence of a crime, but whether the searching officer can (possibly wrongly) decide that he/she believes it to be evidence of a crime, as happened with the Coast Guard seizing reporter sources because “the documents looked like she should not have had them.”

A strict reading of the Court’s opinion says this is not that bad, but history shows that law enforcement agencies of all levels will actively misinterpret and stretch any opportunity available to them. If I trusted that the would-be searchers would only use this ruling honestly (no intimidation, no dirty tricks or lies, no use of police power to ensure that the objector is not around when the question is asked a second time), I would be a lot less worried about this.

zip says:

It’s not illegal for the cops to lie or deceive someone in order to extract a confession. This is done all the time.

I suspect that cops may also be allowed to lie in order to get permission for a warrantless search: “Your husband already gave us permission to search your house. Any objections?”

This ruling could have the greatest effect on college students. Will police be able to search a multi-roommate residence — or an entire frat-house — by getting the permission of only one person?

John Nemesh says:

One more step...

As our Constitutional Rights become more and more eroded with every passing day, and the ability of the common man to redress these grievances within our system becomes more and more difficult, it’s quickly becoming obvious that the only way we will regain the Rights that our Country was founded on will be to remove those corrupted officials who have damaged the system beyond repair. Every ruling like this from the Supreme Court, and every law that is passed in Congress, and signed by the President…every trade agreement that is made to the benefit of the elite and the detriment of the American worker…they add up. And when the balance is too far lost, revolution happens. We are FAR too close to this DISASTROUS outcome! Those in power need to fix this, before it’s too late.

Anonymous Coward says:

Sorry to spoil, but you are wrong in the title.

There is nothing new invented here. This judgment changes nothing in terms of warrants. Just read the details.

Your landlord or dorm roomates can NOT consent to search of your property, still.

I think, there is an issue of poor journalism on part of techdirt fellas here. Suggestion: have lawyer with edge for journalism on board.

Anonymous Coward says:

So, now they they say “Fuck the Fourth Amendment, I don’t need no God-damned warrant.”

They then monitor your utility/”Dumb Meter” to see when you’re away, waltz in & if the false-sense-of-security alarm goes off, well, they’re already there so that takes care of that.


Ahhh, ‘Murica

Andrew D. Todd (user link) says:

Locks Are the Boundary, Whatever They Are Attached To.

In this case, there would have been no particular difficulty in getting a warrant. The evidence showed that the defendant, Fernandez , had proclaimed himself a member of a street gang, had carved up and robbed a man, and had been chased in hot pursuit to an apartment where, divested of the clothes he had been wearing, he was engaged in beating a woman up. There was obviously a case to find both the clothes he had been wearing, for purposes of identification/bloodstains, the stolen property, and the weapon he had used. I think you would find that very few judges would have objected to authorizing a search for other weapons, viz, knives, firearms, etc. It is reasonable to assume that someone who commits crimes of violence for profit will have the necessary tools for committing other crimes of violence. Reasonable grounds of limitation might exclude the contents of laptop computers, because there was no evidence that Fernandez might have been conducting any kind of illegal business which might require paperwork, and an actual physical knife could not be concealed on a hard drive. I think it is a fair surmise that Fernamdez was not an independent drug dealer– independent drug dealers, the kind who hold stockpiles of drugs, don’t risk their freedom in such petty encounters as street robberies. A search for drugs would probably not have turned up more than a joint or so, for Fernandez’s own consumption. However, it might be questionable if the search extended to opening jars in the kitchen, and that kind of thing. Justice Ginsburg says that it would have been easy to get a warrant, therefore the police should have done so. Justice Scalia says, in effect, that it would have been easy to get a warrant, therefore the police created no great breach in failing to do so. According to him, the time to worry is when policemen avoid getting warrants because they know the judge would refuse. This is, in the end, really a fairly minor dispute. If the justices had been there at the time, Justice Ginsburg would have said, “go get a warrant,” and Justice Scalia would have nodded, and said, “right, boys, let’s do it by the book,” the warrant would have been obtained, and the sawed-off shotgun retrieved.

In a lot of shared living situations, such as college dormitories, military barracks, etc., each occupant has his own lockable space, such as a closet, locker, or possibly only a footlocker. In Fernandez, the sawed-off shotgun was retrieved by a little boy of four for the police. The account does not say, but that probably means it was behind a sofa cushion, or something like that, and it was probably hastily placed there when the police knocked on the door, given the short memory of children. If Fernandez had kept his sawed-off shotgun and ammunition locked up in a toolbox or something like that, with the key on a chain around his neck, orthodox procedure would have been to impound the toolbox, slap an evidence-seal sticker across the hasp, and apply to the court for permission to open the toolbox, either by forcing it open, or by opening Fernandez’s personal property envelope at the county jail to retrieve the key and using that to open the toolbox. It is obvious that a co-tenant, not being in possession of the key, cannot give permission for a search which has to be carried out by burglar’s methods.

The Supreme Court decision did not clarify this, but I think you would probably find that the woman was the tenant of record, and that Fernandez was probably living in her Section 8 apartment, and on her welfare check, or the proceeds of her minimum-wage job. That’s the way it is done. It is probably a stretch to call Fernandez a co-tenant, or anything like that. He probably had no _legal_ recourse if she simply told him to get out.

crade (profile) says:

Re: Re:

Yeah it’s resident not home owner. The issue is that there have been a couple decisions before, one that if only one resident is there and they give permission, it’s fine, but if both are there and one gives permission and the other refuses it’s not fine. This case is where the one guy refused a search previously, but was no longer there and the other resident, being the only one home at the time, allowed the search.

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