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.)
License plate data
Cellphone location data
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.