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