Defendant Can't Challenge Search When Protective Order Is in Place - U.S. Third Circuit
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Defendant Can't Challenge Search When Protective Order Is in Place

The U.S. Supreme Court recently delivered an opinion in Fernandez v. California, where it held that Georgia v. Randolph -- which holds that one co-tenant's consent to search does not override another co-tenants refusal to consent to search -- does not apply when the occupant objecting to the search has been removed, and the remaining occupant provides consent "well after [the other occupant] has been removed from the apartment they shared."

These two Supreme Court cases, along with another case recently decided by the Third Circuit, all have one thing in common -- lovers' quarrels and consent to search.

Lovers' Quarrels and Consent

Randolph dealt with an estranged wife giving consent to a search over the objections of her husband, whereas Fernandez was removed from the property because he was suspected of having battered his girlfriend.

A while after Fernandez was arrested, an officer returned to his home and obtained consent to search the residence from his girlfriend -- even though Fernandez had objected to a home search when officers initially arrived before his arrest. The Fernandez Court refused to extend Randolph to that set of facts.

3rd Circuit Case: Portia Newell's Protection Order

In United States v. Cortez-Dutreiville, Portia Newell, the mother of Dutreiville's child, had a protection order against Dutreiville that, among other things, prohibited him from being in Newell's home, and even her consent could not override the order.

Here, federal agents had intercepted a package containing heroin. In a sting operation, they obtained an anticipatory search warrant and had the package delivered. Dutreiville was indicted on drug charges and moved to suppress the evidence.

3rd Circuit Analysis

The district court held that Dutreiville lacked standing to challenge the evidence because he was barred from being in the home because of the protection order. The Third Circuit agreed, and found that Dutreiville did not have an objectively reasonable expectation of privacy (for himself, or his overnight bag), when his "presence in the home was 'wrongful.'" Because the court found that he had no objective expectation of privacy, they did not decide whether he had a subjective expectation of privacy, the second prong in the analysis.

Perhaps the best lesson here for criminal defense lawyers is to advise clients that, if they have live-in lovers, to be sure to stay on good terms, and to make sure they're on the same page about consenting to searches of their shared residence.

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