WASHINGTON (AP) -- The Supreme Court has said that police may not search a home without a warrant when two occupants disagree about allowing the officers to enter. Hearing arguments Wednesday, the justices seemed unlikely to order the police to stay out after the resident who refuses permission to search is arrested and taken away.
The court took up the case of Walter Fernandez, who is serving a 14-year prison term on robbery and guns charges. Police found a shotgun, ammunition and a knife when they searched the Los Angeles apartment Fernandez shared with his girlfriend, Roxanne Rojas.
Fernandez told police they could not enter his apartment. But about an hour after his arrest, officers returned to the apartment and persuaded Rojas to let them in.
California state courts rejected his efforts to throw out the evidence police seized in the search.
A divided Supreme Court ruled 5-3 in 2006 that when two occupants who disagree about letting the police in are present, the objecting occupant prevails.
The new case tests whether the refusal to allow police in can remain in force when the objector is no longer there.
Justice Anthony Kennedy was in the majority in the 2006 case, Georgia v. Randolph. But Kennedy told Jeffrey Fisher, Fernandez's lawyer, that if Fernandez were to prevail, the new case would be "a vast extension" of the earlier one.
When Rojas first answered the door for police, she was crying and holding her 2-month-old baby. She had a fresh bump on her nose, and blood on her hands and shirt. She said she had been in a fight.
At that point Fernandez appeared and ordered the police to get out, telling them he knew his constitutional rights. The police believed the couple had just been in a fight and removed Fernandez from the apartment in handcuffs. An officer noticed a tattoo on Fernandez' shaved head that matched the description of a robbery suspect. Fernandez soon was arrested.
When officers went back to the apartment, they had sufficient evidence to obtain a warrant, California Deputy Attorney General Louis Karlin told the court. But, "Rojas had the authority, as the sole present tenant, to call the shots...and to consent to a search," Karlin said.
Would that be so even if Fernandez had stepped out to make a quick trip to the drugstore, Justice Ruth Bader Ginsburg asked.
Yes, Karlin said, a departure for any reason, dramatically changes the situation.
Justice Samuel Alito seemed angry in his questioning of Fisher. "You have a woman who has been beaten up. She's got bruises. She's standing on the doorstep of her house. And she says to the police: I'd like you to come into the house and see evidence of what my husband has been doing to me. And you say she can't do that...It's her house, but she can't invite the police in?" Alito said.
In response, Fisher said Rojas and Fernandez both have rights in that situation. "And what the Constitution says is that searches of homes presumably have to be done under warrant," he said.
Justice Sonia Sotomayor suggested that police would be better off getting a search warrant than testing the limits of constitutional law. "I don't know why that's so difficult for police officers to understand. Your first obligation under the Fourth Amendment is get a warrant," she said.
Justice Stephen Breyer and Kennedy appeared to be troubled by how long the objection would remain in force after the arrest.
Breyer wanted to know if it would still be valid even if the defendant is "the worst criminal in the world. Right from the house to 20 years in Sing-Sing."
No, Fisher said, "because I think once he's imprisoned, you might say he has a new domicile, Justice Breyer."
A decision is expected by spring.
The case is Fernandez v. California, 12-7822.
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