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Warrantless Home Search OK If 1 Occupant Consents: Sup. Ct.

By Brett Snider, Esq. on February 25, 2014 | Last updated on March 21, 2019

Police can search a shared home without a warrant as long as an occupant who is present consents to the search, the U.S. Supreme Court ruled Tuesday.

In a 6-3 decision, the High Court affirmed that police don't need the permission of all occupants in a shared residence, as long as officers have the agreement of at least one resident who is physically present, The Associated Press reports.

Does this ruling in Fernandez v. California erode the protection against warrantless searches offered by the Fourth Amendment?

One of the founding principles of the Fourth Amendment is the warrant requirement, which obligates law enforcement to obtain a warrant before searching a person or his or her home.

There are, however, notable exceptions to the warrant requirement which allow police to search even the most private of places -- like a private residence -- without a warrant. One of the more common sense exceptions to the warrant requirement is when a resident gives the police permission by consenting to the search of his or her home.

But what happens when two residents disagree on letting police search their shared home?

In Georgia v. Randolph, the U.S. Supreme Court recognized that when police seek to search a shared residence without a warrant, residents can disagree about allowing the search. The Court in Randolph ruled that as long as the resident was physically present and denied the officers entry, the search of the shared home would be illegal with regard to him or her.

When You're Gone, No Right to Dispute

This Randolph rule only applies when you are physically present to dispute consent to officers wanting to search your shared home without a warrant. In the Fernandez case, Walter Fernandez was in police custody when police asked his abused female partner, Roxanne Rojas, if they could search their home.

The U.S. Supreme Court noted that it didn't matter that Fernandez had refused police access to the home moments before he was arrested. What mattered was that Fernandez was not present to object when police returned and requested to search the home -- which Rojas agreed to.

The dissent, written by Justice Ruth Bader Ginsberg, worries that this ruling flies in the face of the warrant requirement, and allows police to search homes even when it would be very simple to obtain a warrant first.

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