Supreme Court allows disputed home searches without warrants

  In 1974 the Supreme Court in United States v. Matlock held Fourth Amendment prohibitions on unreasonable searches and seizures were not violated when the police obtained voluntary consent from a third party who possessed common authority over the premises sought to be searched. Wikipedia’s article on that case says that ruling “established the ‘co-occupant consent rule,’ which was later explained by Illinois v. Rodriguez, 497 U.S. 177 (1990) and distinguished by Georgia v. Randolph,  547 U.S. 103 (2006), in which the court held that a third party could not consent over the objections of a present co-occupant.”

  Its article on that case notes “Randolph held that without a search warrant, police had no constitutional right to search a house where one resident consents to the search while another resident objects. The Court distinguished this case from the "co-occupant consent rule" established in United States v. Matlock, 415 U.S. 164 (1974), which permitted one resident to consent in absence of the co-occupant. Georgia v. Randolph was a battle in the continuing contest between proponents of the "Originalist" and the "Living Constitution" philosophies on the Supreme Court, and in U.S. jurisprudence – the latter maintaining “the Constitution has a dynamic meaning and associated with views that contemporaneous society should be taken into account when interpreting key constitutional phrases” according to Adam Winkler’s A Revolution Too Soon: Woman Suffragists and The "Living Constitution". 76 NYULR 1456, 1463 ("Based on the idea that society changes and evolves, living constitutionalism requires that constitutional controversies, in the words of Justice Oliver Wendell Holmes Jr., "must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.")

   And now that’s been extended a bit, too, with the Court’s examination of the circumstance of the police’s right to enter and search a premise when an objecting occupant was no longer present….. finding that they could in the 6-3 decision last week highlighting Americans’ Fourth Amendment protections against unreasonable searches and seizures stemming from the 2009 Los Angeles case, Fernandez v. California.

   The Los Angeles Times’ coverage of the case details that “the case began with LAPD officers responding to reports of a street robbery and pursuing a suspect to an apartment building where they heard shouting inside one of the units. Upon their knocking on the door, Roxanne Rojas opened the door, but her boyfriend, Walter Fernandez, told officers they could not enter without a warrant. Fernandez was arrested in connection with the street robbery and taken away. An hour later, police returned and searched his apartment with Rojas' consent., finding a shotgun and gang-related material… He was later convicted for his role in the street robbery and sentenced to 14 years in prison. The California Supreme Court upheld his conviction, which he appealed to the Supreme Court challenging the search of his apartment.

  “The Court’s majority,” the Times reported, “led by Justice Samuel A. Alito Jr., said police need not take the time to get a magistrate's approval before entering a home in such cases. But dissenters, led by Justice Ruth Bader Ginsburg, warned that the decision would erode protections against warrantless home searches. The court had previously held that such protections were at the "very core" of the 4th Amendment and its ban on unreasonable searches and seizures.”

  ScotusBlog’s  Rory Little posted an argument recap & analysis, with Orin Kerr offering “Five thoughts on Fernandez v. California.” [ScotusBlog's docket on the case is here]

  The New York Times also discussed the case along with that of Kaley v. United States, decided the same day.