The Cautionary Instruction: Supreme Court weakens Fourth Amendment

Friday, 28 February 2014 06:00 AM Written by  Matt Mangino

supremecourt 2013wap150The U.S. Supreme Court ruled this week that police may search a home without a warrant when two occupants disagree about allowing officers to enter, and the resident who refuses access is then arrested and removed from the house.

The justices declined to extend an earlier ruling denying entry to police when the occupants disagree and both are present.

Justice Samuel Alito wrote the court's 6-3 decision holding that an occupant may not object to a search when he is not at home. "We therefore hold that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason," Alito said.

The case was argued before the Supreme Court last November. Sanford law professor Jeffrey Fisher argued at the time, "In Los Angeles County, it takes 15 minutes on average to get a warrant." He told the court that his client had strongly objected to the police entering his apartment before he was handcuffed and taken away.

In the past, the court has frowned upon most searches of residences except in the case of an emergency or if the police had a warrant from a judge.

But Alito said police were free to search when they get the consent of the only occupant on site.

"A warrantless consent search is reasonable and thus consistent with the 4th Amendment irrespective of the availability of a warrant," he said in the case before the court, Fernandez vs. California. "Even with modern technological advances, the warrant procedure imposes burdens on the officers who wish to search [and] the magistrate who must review the warrant application."

The Fourth Amendment generally requires the police to obtain a warrant before searching a home, though that requirement may be avoided if the homeowner consents to the search.

In 2006, the Supreme Court decided Georgia v. Randolph a case with similar facts to Fernandez. At issue was a domestic violence investigation where the male suspect refused to let the police search his home while his wife authorized the search.

The police went in and searched the home. The Supreme Court ruled, “A physically present inhabitant’s express refusal of consent to a police search [of his home] is dispositive as to him, regardless of the consent of a fellow occupant.”

In Fernandez, Justice Ruth Bader Ginsburg was joined by Justices Sonia Sotomayor and Elena Kagan in a dissent. The three accused the majority of weakening the Fourth Amendment and granting the police too much latitude.

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


Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His book The Executioner's Toll, 2010 is due out this summer.

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