A 'Warrantless' Search Is Not the Same as an 'Unreasonable' Search

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.