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Searches, Cohabitant Consent, and Narrowly Interpreting Bad Precedent

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The Fourth Amendment forbids unreasonable searches and seizures.  The Supreme Court has said this generally requires a warrant to enter a home, with some exceptions.

It has long been established, as a general rule, that police may enter a home without a warrant if an occupant of the home with full authority over it invites them in.  As a matter of property law and generally understood social convention, of course you can go in if one roommate invites you.  You don't have to go around and get consent from every roommate.

This cohabitant rule might be considered an application of the general rule actually in the Constitution.  Such an entry is not unreasonable.  It might be considered an exception to the court-created warrant requirement.  Either way, it is well established.

Eight years ago, in Georgia v. Randolph, the Supreme Court made an exception.  Randolph, present at the time, objected to the entry of the police into his house, but his wife "readily gave" consent.  This was held to be a violation of the Fourth Amendment in a 5-4 decision.  "The question here is whether such an evidentiary seizure is likewise lawful with the permission of one occupant when the other, who later seeks to suppress the evidence, is present at the scene and expressly refuses to consent."

What if the objector is not present?  That was the question in the case decided yesterday, Fernandez v. California.
The police arrested Fernandez, with ample cause, after he stated his objection to their entry into his apartment.  They returned an hour later and obtained consent to enter from his battered cohabiting girlfriend.  Her young son helpfully showed them the location of Fernandez's hidden sawed-off shotgun.

Does physical presence at the time of entry really matter?  One can easily argue it should not, but that would leave the Court with the choice between overruling Randolph or extending this very dubious decision into new territory.

Fourth Amendment cases involve a balancing of sorts between privacy interests and the needs of effective law enforcement.  In cases close to the borderline, a factor that is small in itself may be the one that tips the balance one way or the other.  Justices Kennedy and Breyer, in the majority in Randolph, apparently thought this factor makes the difference, and the Court upheld the search 6-3.

Justice Ginsburg, dissenting, says "the Court shrinks to petite size our holding in Georgia v. Randolph ...."  Not quite.  Justice Alito's opinion for the Court does not shrink Randolph but rather confines it to its scope as stated in the Randolph opinion itself.  It refuses to extend the rule of Randolph to new ground, even though some of the language in that case implies it should be extended.  This is the important difference between dicta and holding.  A later court that wholeheartedly agrees with a prior ruling can seize on statements in the opinion and use them to justify extensions.  A court that is skeptical of the precedent can confine it to the scope of the question squarely presented in it. 

The distinction between holding and dicta is especially important in federal habeas cases subject to the standard of 28 U.S.C. ยง2254(d)(1).  An extension of an existing Supreme Court precedent to new territory is not "clearly established Federal law," even if dicta in the opinion suggests such an extension or the principles stated in the opinion can be used to argue for such an extension.  The Supreme Court in the future might decline to extend it, just as Fernandez declined to extend Randolph.  At least, that's what I told the Supreme Court in White v. Woodall.  Stay tuned.

Update:  Orin Kerr has this post on the case at SCOTUSblog.

1 Comment

I believe, in the long run, the most important aspect of this case will be the fact that six justices seem ready to repudiate the court-created warrant requirement once and for all.

That would leave warrantless searches and seizures subject to reasonableness balancing alone, without the need to shoehorn the case into a so-called "narrow" exception.

In my mind, that is a good thing, especially as the Court begins to address how the 4A applies in our post-9/11 technologically advanced world.

It will be interesting to see if the majority of the justices continue to eschew the court-created warrant requirement in the upcoming cellphone search cases, Wurie and Riley, as one of the seemingly strongest arguments that the defendants have in those cases is the retort: "The cops should (and could) have gotten a warrant."

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