The LAPD Heads to the Supreme Court

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.