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A ‘Warrantless’ Search Is Not the Same as an ‘Unreasonable’ Search

A recent Supreme Court ruling clarifies an important distinction in Fourth Amendment cases.

Jack Dunphy


March 6, 2014 - 11:31 pm

If you were to learn that the Supreme Court had handed down a decision, and all you were told about it was that the opinion had been written by Justice Alito, with Chief Justice Roberts and Justices Scalia, Kennedy, Thomas and Breyer joining, and that Justice Ginsburg had filed a dissenting opinion, in which she was joined by Justices Sotomayor and Kagan, do you think you’d be inclined to approve or disapprove of the outcome?  And if you were to further learn that the decision had so rankled the editors at the most liberal newspaper west of the Hudson River, the Los Angeles Times, that they took to their pages to condemn it, would your inclination be altered?

Last November I wrote here on the case of Fernandez v. California, in which oral arguments had just been heard before the Supreme Court.  I’m pleased to report that last week the Court, no doubt influenced by my column, ruled against Fernandez, an especially loathsome individual, upholding his conviction and the warrantless search of his apartment based on the consent of his live-in girlfriend.  This is not to say the vitality of one’s constitutional rights should be in inverse proportion to one’s loathsomeness, but it’s gratifying that this petitioner, a street thug and an abuser of women, came away from the Court unsatisfied.

Distilled to their essence, the facts of the case are these: In October 2009, Walter Fernandez watched Abel Lopez cash a check, then confronted him with a knife.  When Lopez raised his hand in self-defense, Fernandez cut him on the wrist.  Lopez ran away, but Fernandez summoned four fellow members of his street gang, who attacked Lopez and robbed him of his cell phone and wallet, which contained $400 in cash.

Lopez called 911, and Los Angeles Police Department officers responded to the scene.  (I was not involved in the case, nor am I acquainted with any of the officers who were.)  The first two officers to arrive were directed by a passerby to a particular apartment building, one known to the officers to house members of the Drifters, a local street gang.  They saw a man run into the building, and moments later heard the sounds of screaming and fighting from inside.

After backup arrived, the officers knocked on the door of the apartment from which the noises were heard.  The door was answered by Roxanne Rojas, who was holding a baby and bore visible injuries that appeared fresh.  She told the officers she had been in a fight and that her 4-year-old son was the only other person in the apartment.  The officers asked Rojas to step out of the apartment so that they could verify that no one else was inside.  At that time Fernandez came to the door wearing only boxer shorts.  He told the officers, “You don’t have any right to come in here.  I know my rights.”

Believing that Fernandez was responsible for Rojas’s injuries, they detained him as a domestic violence suspect.  Lopez then identified Fernandez as his initial attacker, and Fernandez was taken to the police station for booking.

About one hour later, officers returned and spoke with Rojas, from whom they obtained oral and written permission to search the apartment she shared with Fernandez.  During the search, officers found illegal weapons, including a sawed-off shotgun, and evidence linking Fernandez to the Drifters street gang.

In a pre-trial hearing, Fernandez moved to suppress the evidence recovered during the search, arguing that the officers, having heard his clear objection to their entry before arresting him, should have obtained a warrant before searching the apartment.  When his motion was denied, he pleaded no contest to some counts but went to trial on the robbery and domestic violence charges.  He was convicted and sentenced to 14 years in prison.  He appealed but lost in the California Court of Appeals, and the California Supreme Court declined to hear the case.  He then sought and was granted a hearing in the U.S. Supreme Court, six of whose members were satisfied that the police had acted properly and that prison is where he belongs and will remain until he finishes his sentence.

My November column elicited some heated commentary from people fond of invoking the term “police state,” as I expect this one will also.  To those limbering up their fingers to instruct me below on the evils of my profession and the sinister implications of this decision, no words I offer here will deter you, so have at it.  For the more reasonable among you, I present here a police officer’s perspective on search warrants and when they should be obtained.

First, let me say at the outset that had I been the detective in the Fernandez case, I would have obtained a search warrant.  In investigating a crime and preparing a case for prosecution, it’s important to foresee, to the extent one can, the issues a defendant may raise in court, and if possible render them null.  In the present case, Fernandez’s guilt as to the robbery and domestic violence charges was established through statements made by the victims of the respective crimes.  It seems likely that even without the fruits of the contested search, he would have been found guilty of those two crimes.  The search produced evidence that merely buttressed the robbery case, but it also produced the illegal weapons and evidence of his membership in a street gang.  Fernandez’s objection to the officers’ entry into the apartment should have been viewed as an issue that would have prompted the officers into taking the extra time required to obtain a search warrant.

But as I wrote in November, there may have been factors at play that prevented them from obtaining a warrant, the first of which to come to mind is the desire on the part of LAPD management to avoid overtime.  (And to those who say that such considerations need not concern us, as search warrants can be instantly obtained over the telephone, I say this may be true in theory but not in reality.  The mechanics of preparing a search warrant and getting it approved through an officer’s chain of command and by a judge outside of regular court business hours is very time consuming, often running into several hours.)  Corners are indeed cut in some investigations so as to minimize overtime, and it’s only a matter of time before such an instance results in an appeal that comes before the Supreme Court, perhaps with an outcome less favorable to the officers.  So, yes, the default position should be in favor of securing a warrant, not least for avoiding the type of protracted legal battle as occurred here.

That said, I’m pleased that the officers did not obtain a warrant before searching Fernandez’s home, if only for the fact that the issue has now been clarified by the Supreme Court.  Yes, the decision may one day invite chicanery by officers who, under some false pretext, remove someone objecting to a search from a location in the hope of obtaining consent from some other resident who remains.  But the same can be said of any Supreme Court decision that establishes guidelines for police procedure.  Terry v. Ohio, Miranda v. Arizona, and any number of other landmark criminal law cases changed the rules for the police, but the conscientious and knowledgeable officer learns the bounds of lawful behavior as set forth by the Court and conducts himself so as to stay within them, even if he occasionally brushes up against them.

Yes, abundant case law makes it clear that under ordinary circumstances the search of a home requires police first to seek a warrant from an impartial magistrate.  But case law is equally clear that there are exceptions, one of the most common of which is when someone with lawful authority over a residence grants officers permission to search it.  With Fernandez lawfully arrested and removed from the apartment, Roxanne Rojas, a legal tenant, enjoyed every right to allow the police to enter and search the apartment, and to say otherwise is to deny Rojas the autonomy Justice Ginsburg, in her dissent, claims to respect.  Ginsburg writes that, as was the case here, police have the right to make a warrantless entry into a residence under the exigency of protecting the victim of domestic abuse.  Having arrested Fernandez, she says, the police should then have procured a search warrant.

But this elides a further aspect of Rojas’s autonomy, to wit, her dominion and control over the apartment she shared with Fernandez.  In Fernandez’s absence, either voluntary or otherwise, would Ginsburg and the other dissenters deny her the right to invite the police or anyone else she chooses into the apartment?  Take the domestic violence issue out of the matter and assume that Rojas is so old fashioned as to object to her boyfriend’s participation in a street robbery and wishes to see him answer for the crime.  Had Fernandez merely gone out for groceries, would Rojas be prohibited from summoning the police and allowing them to search for evidence of the robbery?

The Fourth Amendment does not prohibit warrantless searches, it prohibits unreasonable ones.  We can be grateful that six members of the Supreme Court know the difference.

Jack Dunphy is the pseudonym of a police officer in Southern California.

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Top Rated Comments   
Like much of the now quaint and archaic language of the writers of the Constitution and the Bill of Rights, the language used to communicate in the 4th Amendment the two distinct limits regarding search and seizure may not be plain to the modern reader of American English. Please note the conjunction 'and' between "unreasonable search... and no warrants...".

If the search is unreasonable, then no warrant can make it so. If there is no warrant because, in the case of Rojas, arrival at the scene of the search is the result of an unbroken chain of observations in real time that would lead any reasonable person the conclude that they were talking to persons of interest and that a search of the premises, verbally allowed by one of the inhabitants, is in fact a reasonable action, then the 4th does not prohibit the action.

It is rather like the 2nd, where two phrases are joined that have almost unrelated meanings, but still manage to convey the individual right to keep and bear arms.
37 weeks ago
37 weeks ago Link To Comment
"The Fourth Amendment does not prohibit warrantless searches, it prohibits unreasonable ones. We can be grateful that six members of the Supreme Court know the difference."

Actually, the founding fathers were worried about Capricious searches - as well as seizure that is not reasonable. ( For a concise example of Unreasonable Seizure, travel with more than 100K in cash and see a DEA Agent take it from you - That is Unreasonable Seizure. )

When the officers have permission to enter, they have permission to enter. Since the girlfriend did not live in the apartment next door, she had the authority to grant that permission, therefore the search was no longer unreasonable.

Hot pursuit, police chase the suspect and he runs into an apartment... Police are not required to wait for a warrant to enter and search - warrantless, but again Not unreasonable.

Hear Hear for the Supremes!
37 weeks ago
37 weeks ago Link To Comment
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All Comments   (93)
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my buddy's sister makes $69 an hour on the internet . She has been unemployed for eight months but last month her pay check was $13747 just working on the internet for a few hours. Learn More>>>>>>>>>>>>>
36 weeks ago
36 weeks ago Link To Comment
Reading through the comments, I'm coming to the conclusion that the biggest problem isn't with the policy itself, but rather that the police and the populous have each come to regard the other as enemies.

I do not see how a society can stand like that.
37 weeks ago
37 weeks ago Link To Comment
i have a couple of questions unrelated to the supreme court decision: among other things, the officers found "evidence linking fernandez to the Drifters street gang". I know this sounds stupid, but is it illegal to be a member of a street gang? Assuming it is not illegal to be a member of some gangs, what does a gang have to do to cross that line?

I ask because in this day and age, I assume everything about LA law will make no sense whatsoever.
37 weeks ago
37 weeks ago Link To Comment
California law allows for sentencing enhancement when it can be shown that the crime was committed in furtherance of gang activity.
37 weeks ago
37 weeks ago Link To Comment
I want to thank the officer for his bravery in writing this column.
One thing that bothers me is when officers trash an apartment. I would think they should be doing an orderly search, and if not, straighten up when done. Even if they find something, unless they have reason to fear for their safety. Note the amendment says the search needs to be looking for something (or someone) specific, in a specific place.
37 weeks ago
37 weeks ago Link To Comment
I hope commenters will back up their comments with some citation regarding the legal atmosphere in which the fourth amendment was written. Without that, it has no meaning. (For a similar example, see Ann Coulter's High Crimes and Misdemeanor, on the meaning of that phrase.)
37 weeks ago
37 weeks ago Link To Comment
Where can I get a copy of the revised 4th Amendment? My copy doesn't provide for warrant-less searches to avoid overtime costs. My copy doesn't provide for my inalienable right to be secure in my person, house, papers and effects to be abrogated by a third party (especially one that may be aggrieved); and my copy doesn't distinguish between a reasonable or unreasonable search defined by a third party: Mr. Fernandez clearly denied officers permission to search HIS person, house, papers and effects making any search 'unreasonable' and thus demanding a warrant based on probable cause..
37 weeks ago
37 weeks ago Link To Comment
I guess you didn't read the article.
The woman who lived there gave officers permission to enter.
As is her right.
37 weeks ago
37 weeks ago Link To Comment
I agree with Dunphy in this case, but let's examine the law:

Article [IV]

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The founders didn't envision SmartPhones and modern radio and satellite communications. So standards of what is "reasonable," established in the 1800s and 1900s, are probably not reasonable any longer. Circumstances where it would be reasonable to short-circuit the process because of having to drive across town, are no longer reasonable when a writ can be emailed to the officer in less than a second. The requirement of a warrant doesn't block anything, it just requires a judge to sign off, so two signatures required from different branches of government. That seems like a check and a balance, and it seems very reasonable. So let's become more strict in enforcing the Consitution.
37 weeks ago
37 weeks ago Link To Comment
StaciJOH is a liar. If the worker made 77 hourly she worked 168 hours; not "a few hours". And, dimwit, that anecdote is not relevant to this log. unless you cite it as an example of the squirreled "reasoning" of Sotomayor, Ginsburg and Breyer.
And you dopers who got tagged on a search, please never stop whining. You will weep and whimper,( that what wimps do), until the fools legalize dopr. Then, when the loadies do their crazy things en masse, we will truly live in Hell.And you sweeties will answer for your harm to millions on a day when you will not have a right to be represented by an attorney.
37 weeks ago
37 weeks ago Link To Comment
still better to keep the police at bay......
37 weeks ago
37 weeks ago Link To Comment
“Yes, the decision may one day invite chicanery by officers who, under some false pretext, remove someone objecting to a search from a location in the hope of obtaining consent from some other resident who remains”

One day?….Ya Think?

They’ve been playing games like that with “free sniffs” from hungry dogs responding to the latent aroma from Fast Food containers, Sippie Cups and Gym Socks for at least a decade now. The M.O. is, if you don’t HAVE Probable Cause to search, go ahead and “search” for it until you DO…it’s a freaking game and this decision is just another nail on our Constitutional Coffin.

Look, Exigent Circumstances existing all over in that case, I’d say they HAD probable cause to search WITHOUT a warrant, and I’d support them if they did….and if, when the smoke clears, the courts disagree and it blows the conviction, well shame on THEM…expose, excoriate, and vilify THEM…but lets not create a whole new precedent for The State to play their cynical word- games with Consent to Search, because its already being abused too WAY to much as it is.

Personally, I’d like to see if this “girlfriends” name was even on the Lease…my money says The Court took a virtual “Squatters Rights” view of her “status”, and refer to her as a “resident” of the apartment in the most generous of terms…rather like the prevailing “opinion” that Illegal immigrants can no longer be CALLED such, in the furtherance of certain agendas…

Gut-check tells me she wasn’t on the lease, and it was NOT her apartment….and as such she had no “authority” to grant ANYONE access, period. Not to her Crack-head friends, her Momma, her OTHER Baby Daddy, her Pastor, no one….I’ll bet the Land Lord didn’t even want HER living there.

If that womans name was not ON the lease, as THE Principal Rent-Paying, "take you to court if you don’t pay" tenant, then she has NO AUTHORITY to grant ANYONE access to any PART of that building, period.

Because if she DOES?...Well, wouldn’t THAT that make for some interesting legal disputes between Landlords, tenants, and THE GENERAL PUBLIC all over the city…

Land Lord:
“Who ARE you… do you LIVE here …who are all these MEN…what are you all doing in MY building?”

Non-Resident with Court-Approved Third Party Access Granting Rights:
“Its O.K. BayBEE….Shaneeka and Genteal says we can chill here for a while…its all good”

Be careful what you ask for, Jack

The next time you get a call from someone trying to toss out a gang of party crashers wrecking his home, I suppose you’ll say:
“uhh….lampshade-head dude says to Rock-On....AND he says your kid lets him crashes on the couch in the basement when youre at work….so THAT solves it, Mr. Homeowner…just keep the noise down or we’ll have to give you a summons”

Get serious.

The vehicle owner, home owner, tenant/lease rent payer, the guy WEARING the clothes and shoes has final say over consent to people stickin their fingers into HIS domain, period.

You either HAVE Probable Cause, or you DON’T...My Neighbor cannot grant consent to seach my home, even if he's standing in my living room, even if we "Share Soap in The Shower"...because he's not on the Mortgage, and it aint "his", period

Using disingenuous legal theories to turn the Constitution upside-down in compensation for OTHER Incompetencies Of The State, is always a bad idea.

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37 weeks ago
37 weeks ago Link To Comment
you don't seem to know much about the 4th amendment.

(I) any person residing at a residence can give permission.

(II) the real question suggested by this case is whether the female resident can give permission while present in the apt if the criminal remains in the apt also and denies permission.

I would guess for all parts of the apt over which she shares control she can give permission even over his voiced objection.
37 weeks ago
37 weeks ago Link To Comment
"you don't seem to know much about the 4th amendment.

(I) any person residing at a residence can give permission."

Hmmm. Odd, that part seems to be missing from my copy of the Contitution.

Given that the Founders were very concerned about property ownership, I'm not sure they would agree that "any person residing at a residence can give permission."

37 weeks ago
37 weeks ago Link To Comment
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