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Searching when one occupant objects- Fairfax criminal lawyer weighs in

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Mar 09, 2020 Searching when one occupant objects- Fairfax criminal lawyer weighs in

Searching when one occupant objects- Fairfax criminal lawyer weighs in- Image of Bill of Rights

Searching when one occupant objects- Fairfax criminal lawyer weighs in

Searching homes is barred when a present co-occupant objects to the police, says Fairfax criminal lawyer

Searching homes is not permitted by police under the Fourth Amendment without a search warrant, consent of a resident, or exigent circumstances. As a Fairfax criminal lawyer, I know that one present occupant’s objection to such an otherwise consensual search trumps the consent of the remaining occupant. I also know that the United States Supreme Court permits police to get away with removing one of the residents from the premises to avoid such an objection, so long as the police officer has a lawful ground for doing so. Fernandez v. California, 134 S.Ct. 1126 (2014).

Searching homes by consent usually requires only the okay of one occupant

Ordinarily, police may rely on the consent of one home occupant for searching their residence. Fortunately, the Supreme Court confirmed an exception to that rule in the event that a present occupant objects to a search despite a co-occupant’s consent. Georgia v. Randolph, 547 U. S. 103 (2006).

Supreme Court lets police get away with improper motives for removing a defendant from objecting to a search of his or her own home

Revisiting Randolph in 2014, the Supreme Court recognized that Fernandez objected to any police search of his home, the police then arrested him for assault, and then the police obtained consent of his fellow home occupant and alleged victim to proceed with searching the home, which yielded evidence of Fernandez’s involvement in a recent robbery. Fernandez. The timing of Fernandez’s arrest sounds less than coincidental as a police effort to remove him from interfering further with a “consent” search of his own home.

Supreme Court lets trial judges look away from improper police motive if they have a lawful basis to charge a law violation

Unfortunately, in affirming Fernandez’s conviction following police searching of his home, the Supreme Court proclaimed: “In Randolph, the Court suggested in dictum that consent by one occupant might not be sufficient if ‘there is evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection.’ 547 U. S., at 121. We do not believe the statement should be read to suggest that improper motive may invalidate objectively justified removal... The Randolph dictum is best understood not to require an inquiry into the subjective intent of officers who detain or arrest a potential objector but instead to refer to situations in which the removal of the potential objector is not objectively reasonable.” Fernandez. (emphasis added).

The foregoing Supreme Court permission for police to legally remove a defendant with an improper motive for searching his home, is akin to the Supreme Court’s permission in Whren v. U.S., 517 U.S. 806 (1996), for police to stop a car for a traffic moving violation, with the intention of seeing if more serious criminal violations would be discovered, along the lines of DUI and drug offenses.

Fairfax criminal lawyer Jonathan L. Katz is a highly-rated Virginia criminal and DWIi attorney pursuing your best results against felony and misdemeanor. Please call 703-383-1100 to schedule a free in-person consultation about your court-pending criminal case. 

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