Sometimes, when you draw enough fine lines, you box yourself in. If the Supreme Court hasn't done that yet with their co-tenant consent to search jurisprudence, they very well could do so after Fernandez.
We covered the Fernandez case, and the California Court of Appeals' decision in depth when certiorari was granted back in May. With oral arguments set for mid-November, we'll preview the case which should finally determine the limits of co-tenant consent under Georgia v. Randolph.
Fernandez, in Brief
Witnesses to a robbery pointed police to the doorstep of convicted felon Walter Fernandez, where they heard the screams of his girlfriend. He refused to let them search, was arrested, and later, the co-tenant/cohabiting girlfriend consented, orally and in writing to a search.
The search was a success, and led to the requisite evidence to convict Fernandez of robbery.
Georgia v. Randolph's Fine Line
In Randolph, the co-tenant was physically present and objecting, much like Fernandez did initially, before he was arrested.
The court noted that they were not overturning prior cases, such as one where the co-tenant was in a squad car nearby (leaving him unable to object to the search). However, after noting that they were "drawing a fine line," the court also limited their holding, stating that it applied "[s]o long as there is no evidence that the police have removed the potentially objecting tenant ... for the sake of avoiding a possible objection ..."
Ninth Circuit's Murphy Holding
As we noted in May, the Ninth Circuit's Murphy case was nearly indistinguishable. A man living with a meth lab in a storage unit refused to consent, while another man, whose name was on the lease, consented, not knowing of Murphy's objection. The Ninth applied Randolph and held the search impermissible, stating "surely they cannot arrest a co-tenant and then seek to ignore an objection he has already made."
Cal. State Courts and Other Circuit's Contrary Holdings
Obviously, the Ninth Circuit is a poor predictor of how the Supreme Court will rule, and indeed, there is a deep circuit split here, with the Ninth Circuit's holding standing against the Eighth, Seventh, Fourth, and Fifth Circuits, as well as the state Supreme Courts of Colorado and Wisconsin.
The California appeals court, declining to follow the Ninth Circuit, relied upon the physical presence requirement and came to the opposite conclusion -- that the search was permissible.
If we're going on sheer numbers of courts on each side, obviously, one has to side with the narrowest possible interpretation of Randolph, adopted by California and others.
We're not too comfortable with that, however. Do the Fourth Amendment's protections mean anything if a defendant can be arrested after refusing to consent to a search, only to have the co-tenant consent afterwards? How many co-tenants are going to consent out of fear of being arrested themselves?
And with the defendant in custody, what's the harm in requiring a search warrant?
Plus, the Supreme Court limited its holding to where the defendant wasn't removed for the sake of avoiding objections. Isn't that pretty much what we have here?
The Supreme Court knew it was drawing a fine line when it decided Randolph, a line mandated by stare decisis. Will they continue to draw fine lines, and make confusing distinctions, or will they make a clear, defined rule, dismissing stare decisis?