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.


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.


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