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Search and Seizure: How Far Does the Rule From Georgia v. Randolph Extend??

Kish Law LLC

Criminal cases involving search and seizures by police officers continue to bedevil the courts more than two centuries after the Fourth Amendment was added to our Constitution. As we all know, the Fourth Amendment says that there cannot be a “search” or a subsequent “seizure” of evidence unless there is a search warrant, or unless there is “probable cause.” One of the many exceptions to this rule is that the police can search if the owner of some property “consents” to the search. However, what happens when two people live there, and one says they can search, but the other refuses? A case that started here in Georgia a few years back ended up at the Supreme Court, Georgia v. Randolph. In that case, the wife told the cops they could search, the husband showed up and demanded that they not look for evidence unless they had a warrant. The cops searched anyway, and the U.S. Supreme Court ruled that the search was illegal because the cops should not have relied on the wife’s consent when the husband refused to let them in. Last week, the Supreme Court heard oral arguments in a case that will decide how far the rule from Randolph will extend. This recent case is Fernandez v. California, and can be accessed here.

The police suspected Walter Fernandez of being involved in a stabbing. They went to his building and heard screaming from in and near his apartment. His girlfriend answered the door, and appeared to be bloody and bruised. Mr. Fernandez, who was inside, told the police “Get out. I know my rights. You can’t come in.” Despite not being allowed to enter, the cops took Fernandez into custody on suspicion of domestic violence . About an hour later, the police returned and obtained the girlfriend’s consent to search the apartment. You guessed it, they found evidence used to later convict Fernanzed of the stabbing crime.

Back to Georgia v. Randolph, which specifically held that a “physically present” co-tenant can block police entry over a co-tenant’s consent. The question facing the Justices on the Supreme Court is whether the logic of the Randolph case should be extended to allow a physically present co-tenant’s objection to continue to control even after the objector has been lawfully removed by the police.

Based on reports in the press and on the internet, it seems that a majority of the Justices were clearly troubled by extending Randolph to these facts. A few even talked about reversing Randolph. We will follow this case closely, as it could impact some of the matters we work on. Many times we are confronted with search and seizure issues in our federal cases, and the matters we handle in state court.

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