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.