It’s well known that the police can’t search a home without a warrant, warrant exception, or the resident’s consent. But what if one resident says yes and the other says no? That is exactly what happened in a recent Supreme Court case, Fernandez v. California.
The Supreme Court had previously ruled that anyone with the apparent authority to grant entry (including a non-resident girlfriend) can allow the police to search any common areas of the home. Even if the police later learn that the person who granted them entry did not live there, the search is still valid. But when multiple residents are present when the police request entry, one no overrules any number of yes votes.
So how did the Supreme Court approve the search in Fernandez? In this case the defendant was suspected of robbery. When the police came to his home, his wife answered the door with fresh bruises on her face and blood on her shirt. The police asked to search the home. The wife said yes, but the husband said no. Instead, the police arrested the defendant for domestic abuse. Once the husband had been detained, the police came back and searched the home on the wife’s consent.
The majority of the Court ruled that the objecting resident must be physically present at the time of the search to object. Because the police lawfully detained him, he was not there and the later search was valid. The Court said there was no need for a warrant because requiring one would interfere with the wife’s ability to consent to the search.
Any resident can consent to a police search, but one person can prevent the warrantless search by being physically present and objecting to the search. If the objecting resident leaves, the search can commence.
*Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.Â This post is not intended as legal advice and may not apply to your particular case.Â It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.