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The LAPD Heads to the Supreme Court

“Was there any indication,” Justice Ginsberg asked, "why the police didn’t get a warrant?"

by
Jack Dunphy

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November 20, 2013 - 12:14 am

It is a foundational principle in American law that a man’s home is his castle, and that if the police wish to search it for evidence of a crime, they must first obtain a warrant from an impartial magistrate.  Every police officer knows this.  But every police officer also knows there are exceptions, one of which is when a person with “standing,” i.e., an adult who lawfully resides in the home in question, grants consent for the search.

And when two people share a home, and one of them wants to allow the police to search it but the other does not, what do the police do then?  In that case, the person invoking his Fourth Amendment rights wins and the police must obtain a warrant.  But if the objector leaves the home, leaving behind the person who would allow the officers to search, what should the police do then?  And finally, what if the police arrest the objector and take him to the station?  Does his objection to the search override the contrary wishes of the person still in control of the home?

These are questions raised in the case of Fernandez v. California, which was argued before the U.S. Supreme Court last week.  The appellant is one Walter Fernandez, who in October 2009 committed a robbery in Los Angeles.  LAPD officers who responded to that incident focused their attention on a certain apartment building, home to several members of the street gang which the officers believed to be involved.  The officers heard the sound of a struggle coming from one of the apartments, and when they knocked on the door of that apartment it was answered by a woman, Roxanne Rojas, who was holding a baby and bore injuries indicating she had been in a fight.  Rojas claimed she and her son were the only people in the apartment.  The officers were skeptical, and they asked Rojas if they could enter and make sure no one else was inside.

Fernandez then stepped into view wearing only his boxer shorts.  “You don’t have any right to come in here,” he told the officers.  “I know my rights.”  And indeed he did, as did the officers know theirs.  And they also knew their obligations, which at that moment was to arrest Fernandez for inflicting corporal injury on his girlfriend, a felony under California law.

So, there were the officers, with Fernandez under arrest for domestic violence but also suspected of the robbery that had just been reported.  With Fernandez transported to the police station, the officers asked Rojas for permission to search the apartment for evidence of the robbery.  Rojas granted it, orally and in writing, and the search yielded evidence indicating Fernandez’s complicity in the robbery as well as a sawed-off shotgun.

At trial, Fernandez moved to suppress the evidence as the product of an unlawful warrantless search.  The judge denied the motion, and Fernandez was convicted of the robbery, domestic violence, and various other charges; he was sentenced to 14 years in prison.  He appealed the trial judge’s ruling on the evidence but was rebuffed by the California Court of Appeals.  He then appealed to the U.S. Supreme Court, which agreed to hear the case.

At oral argument, which you can read here (PDF) and listen to here, Fernandez’s lawyers relied heavily on Georgia v. Randolph, in which the Supreme Court ruled that where two tenants of a home are present and one grants permission for police to search it while the other one does not, the police must give deference to the objecting party and obtain a search warrant.  But the court specifically said that the objecting party must be present, a distinction from the facts in the Fernandez case.

Fernandez’s lawyers asserted that once Fernandez had made his objections to a search known, the police were forever bound by that objection whether Fernandez was present or not, a position endorsed by the editors of the New York Times last week.  In this Fernandez’s lawyers and his admirers in Manhattan ignore the rights of Ms. Rojas, who in Mr. Fernandez’s absence remained in control of the apartment and free to admit any company she chose, including the police.

During oral argument, Justice Sotomayor expressed exasperation that the police simply did not get a search warrant.  “I don’t know why that’s so difficult for police officers to understand,” she said.  “Your first obligation under the Fourth Amendment is get a warrant.”  There certainly is a preference in the law for search warrants, but Justice Sotomayor’s assertion is a mischaracterization of applicable precedent, a point that was tactfully pointed out by Assistant Solicitor General Joseph Palmore.  A search with valid consent is every bit as lawful as one conducted pursuant to a warrant.

Various hypotheticals were advanced by justices seeking to stretch the Randolph precedent to fit the facts in Fernandez, but they overlooked a real-world consequence that would result from such a holding.  If the court finds that Fernandez’s objection to a police search should be forever binding, that would obligate the police to create a database in order to keep track of all the homes, businesses, and other locations where these circumstances might apply.  Suppose that instead of obtaining Ms. Rojas’s consent for a search of the apartment, the officers had relied on other evidence to support Fernandez’s arrest.  What would the result be if Ms. Rojas, with Fernandez locked away in jail, called the police the next day and asked them to come and retrieve evidence from the apartment.  In all likelihood the officers who answered the call would have no familiarity with what had happened the previous day, and they would be unaware that Fernandez had objected to the search.  How would Fernandez’s objections be transmitted to every officer who might have occasion to answer a call at his residence?

Though the case hardly rests on it, Justice Ginsburg raised a question during oral argument that was not satisfactorily answered.  “Was there any indication,” she asked, “why the police didn’t get a warrant in that hour interval?”

There was no such indication, but I’d be curious to know if this was a decision based on a desire to minimize overtime, a goal some in the LAPD chain of command value more highly than that of reducing crime.  I can’t say if such considerations played a role in this case, but I have seen LAPD supervisors give questionable orders and direct officers to cut corners so as to hold down overtime.  How unfortunate it would be if Walter Fernandez, who few would argue belongs anywhere but in prison, were to be freed because the LAPD didn’t have the money to pay for a few hours extra work.

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

Comments are closed.

Top Rated Comments   
Sorry, Dunphy, but if all the police have to do is arrest the person objecting to the search, and take him away, they'd abuse that principle; everyone who objects to a search would suddenly find themselves, handcuffed, in a police car being driven around thge city while the cops search whatever it is they want to search. Then, when the search is over, the objector would either be arrested, or released from "detention without being booked.
1 year ago
1 year ago Link To Comment
Go ahead.

Go ahead and "win" your case, so that the police can once again get away with blatantly disrespecting property rights and the crystal clear instructions of a home owner.

You actually really really don't want to win this one, but go ahead and win.

Just don't expect any sympathy as you cope with the escalating seething hatred you encounter in your day to day rounds.

1 year ago
1 year ago Link To Comment
I agree with David IV. If there's doubt, the cops should get a search warrant. If they didn't merely to save overtime, think about the implications of *that* for a minute. Pretty much every warrant takes time to obtain; if the police could say as an excuse for not getting one that they wanted to avoid overtime, that would essentially be the end of the need for search warrants.

And I have to tell you, if all the cops have to do to get past the fact that someone in the house protesting is to arrest them, that too will become easy. Wouldn't it be easy to arrest them for something that won't stick, and take them away for "questioning" and then enter the property in their absence? Just because the arrest in this case is legitimate doesn't mean it won't be bogus the next 20 times...
1 year ago
1 year ago Link To Comment
All Comments   (58)
All Comments   (58)
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I believe alot of people have strayed off the main topic of Jack's article, which had to do with standing in relation to warrantless searches. Of course the original Bill of Rights does not have the language of today's many case laws that deal with warrantless searches or cases that deal with giving consent. Just as many court decisons have risen out of that simple phrase "the right to bear arms.." so too have many court decisons arisen out of search and seizure.

What I do find interesting note is nobody has brought up this fact about the "cops should have gotten a search warrant" : if there were ANY issues with this, the DA would not have filed the case. Nor would it have proceeded past the preliminary hearing or the subsequent jury trial (conviction). Yet NO one here is saying, damn DA shouldn't have filed the case, or damn judge should have dismissed the case. Am I missing something here ? And please don't say the DA is in cohoots with the police on ALL their cases, as the reality is, the LA County DA Office does not file every case that is presented to them. They are quite selective in rejecting or referring to the LA City attorney's office cases they feel not meet their "filing criteria". Just saying...
1 year ago
1 year ago Link To Comment
The War on Drugs, backed energetically and whole-heartedly by our rogue local police, has made the legal profession and the court system utterly and completely dishonest. Both live in absolute terror of the Police State. This is why the Edward Snowden fiasco and the fawning media coverage of it are so distressing. Yeah, the NSA collects billions of phone records......so what? That is just about as alarming as knowing the local police look around the streets while they are driving their patrols.

Here, you have a home invasion that the lease-holder specifically protested. Warrantless entries of a home are presumably invalid. That the police will have been found to have acted properly here - inevitable, given the virtual abolition of the 4th Amendment due to the drug war and the present composition of the Court - just adds salt to the wound. No comparable media coverage will be given to this shocking departure from the plain reading of the Fourth Amendment.
1 year ago
1 year ago Link To Comment
For all you cophaters and work-at-home enthusiasts: We are secure from "unreasonable" searches and seizures without a warrant; we are NOT secure from "reasonable" searches and seizures without a warrant. In any given situation "reasonable" is a judgment, based on values, priorities, circumstances, etc. Fernandez had to be booked for battering Ms. Rojas. He was going to jail notwithstanding any other aspect of the situation. The adult then in control was Rojas and she gave consent. The cops did not remove Fernandez for objecting to a search, they bagged him for beating up Rojas. Thus the above objections in re "police abuse" cannot apply here, though they might apply if there was no probable cause to bust fernandez. Got it?
1 year ago
1 year ago Link To Comment
Ah, the "Law and Order at any cost, nothing is too good for our sainted Boys In Blue" crowd makes its appearance!

Say, Longstreet, have you ever read the Founders at all?
1 year ago
1 year ago Link To Comment
A few hours? The District Attorney has an investigator on duty 24/7 whose sole function is to connect a peace officer seeking a search warrant with a deputy d.a. and a judge, all telephonically. Everything is done by phone and recorded at the DA's office. It takes about 15 minutes.
1 year ago
1 year ago Link To Comment
It actually shouldn't even take 15 minutes, with everybody having smartphones and warrants that can be signed and sent and received as a PDF document. Around here, it takes about five minutes, since there is an "on call" judge 24/7 on duty. There is literally no excuse anymore.

What part of "NO" do the police not comprehend? Isn't basically comprehension skills for the English language required? This is really, really bad stuff for the police. The police demonstrating how to wiggle your way out of the clear law.....it teaches people not to respect cops and teaches them it is okay for them too, to disobey orders and the wishes of others.

You will reap this one. Too bad.
1 year ago
1 year ago Link To Comment
How simple could it be? After the arrest of Fernandez, remove Ms. Rojas from the inside of the premises to secure evidence. Get the warrant. Return Ms. Rojas. Serve her the warrant. Search. Everyone's rights including the public's right to crime fighting gets taken care of.
1 year ago
1 year ago Link To Comment
Mr. Dunphy I would like very much to agree with you sometime but you just don't make it easy. Have cops EVER done anything wrong in your eyes?

This is yet another column of yours that shows why ordinary, law abiding citizens have far less trust in the cops than they used to have and they would like to have, and they deserve have, but don't have. But with arrogance such as yours you just keep on shooting yourself in the foot. Have you EVER done any self examination? Have you ever considered that you as cops bear some of the responsibility for this situation?

Amendment 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.

This is the Fourth Amendment. It is pretty straight forward, no mention of exceptions to avoid overtime, or that it doesn't apply to cops.

I believe the only exception is if cops have probable cause to believe a crime is in the process of being committed.

I also don't see any provision for one person to give permission to search another person's "houses, papers and effects."

Just get the warrant and you could save everybody a lot of trouble.

And you just might EARN some of the respect you seem to think, that as cops, you have a birthright to regardless of your conduct.
1 year ago
1 year ago Link To Comment
How unfortunate it would be if Walter Fernandez, who few would argue belongs anywhere but in prison, were to be freed because the LAPD didn’t have the money to pay for a few hours extra work.

Especially for Ms Rojas.
1 year ago
1 year ago Link To Comment
If he did not wish them to be able to search, maybe he should not have beaten his live-in girlfriend.

The fact is, either tenant can authorize the search. It is the hazard of living with someone else. Just because my roommate does not want the search, that does not mean I have no right to allow it. I have rights, too. You don't like it? Go live with someone else.

The police do not have to determine who approves and who disapproves at any given moment. If it is an adult resident, then that person may give the okay. (However, if you have separate bedrooms, then you cannot allow a search of the other person's private quarters, as it is not a common area.)
1 year ago
1 year ago Link To Comment
Like it or not the Bill of Rights applies to unsavory people too.

Just get the warrant.
1 year ago
1 year ago Link To Comment
The 4th Amendment refers to unreasonable searches and seizures and specifies how warrants will issue.
It is perfectly reasonable for an officer to assume that the co-occupant of a house may consent to a search. Ms. Rojas did so. The officers had every reason to proceed based on her consent.
If the Supremes hold otherwise, it will be a very large change in how consent works. It is unfair to assume the officers would think their search unreasonable or unlawful before such a ruling.
1 year ago
1 year ago Link To Comment
"It is unfair to assume the officers would think their search unreasonable or unlawful before such a ruling."

It's clear from reading Jack Dunphy's columns for a while that officers never think anything they do is unreasonable. That's why the founders gave us the Bill Of Rights. These are rights the people inherently have and they define rules the government MUST follow. It is not up to any officer to assume anything. It is up to the officer to abide by the law just like everybody else.

I have printed the Fourth Amendment in comment above. It makes no mention of an officer having discretion to make a warrantless search.

If the Bill of Rights doesn't protect a low life like Walter Fernandez it doesn't protect you or me either.

Get the warrant.
1 year ago
1 year ago Link To Comment
"officers never think anything they do is unreasonable. That's why the founders gave us the Bill Of Rights. "

Exactly.

AND, that is why the officers can never be allowed to be the final word on what is reasonable.
1 year ago
1 year ago Link To Comment
"How unfortunate it would be if Walter Fernandez, who few would argue belongs anywhere but in prison, were to be freed because the LAPD didn’t have the money to pay for a few hours extra work."

It's all academic, anyway, because federal courts are requiring the prisons in California to let the convicts go free anyway.
1 year ago
1 year ago Link To Comment
Question regarding "standing"

How much, if any, weight gets put on whose-name-is-on-the-lease/mortgage/deed vs who actually lives there?

Example. Bad guy and his wife. House is in wife's name. But they have lived there together for years. Cops arrive one fine day. Both are home and at the door. He knows that if the cops come in they'll see the flat screen TV and computer he just stole and brought home. Does he have standing to refuse entry to the cops if they ask to come in and chat? Or is it only the wife who has standing and his opinion is not considered? He lives there. But he's on none of the paperwork.
1 year ago
1 year ago Link To Comment
Putting it simply, any lawful adult resident has standing in a home. It makes no difference who owns the place or whose name is on the lease.
1 year ago
1 year ago Link To Comment
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