Rory Little on Fernandez v. California

UC Hastings professor Rory Little has written a response to my post on Fernandez v. California, the third-party consent case that the Supreme Court will be hearing next week. Professor Little asked if I would be interested in posting it, and I am happy to do so. I’ve included a few thoughts in reply at the end, as well.

Here is Professor Little’s response:

Recently Professor Orin Kerr posted his view that Fernandez v. California , set for argument next Wednesday, is an “easy case” that should come out in the government’s favor.  He may be right.  But my own preview suggests that the case raises more difficult questions than may first appear.

Background: Recent Fourth Amendment Doctrinal Shifts

            There is no doubt that the past 12 years have witnessed gradual yet significant shifts in Fourth Amendment doctrine, even after the Court shifted doctrine 50 years ago in Katz [ 389 U.S. 347 link] to focus search and seizure analysis on privacy rather than property and bring non-trespassory “wiretapping” into the Fourth Amendment.

            In 2001, Justice Scalia wrote for the Court in Kyllo [533 U.S. 27 link] that a Fourth Amendment “search” can be effected by aiming a “thermal heat imager” at a residence and detecting unusual amounts of heat emanating from the walls.  Although there were no obvious privacy concerns from public street observations, as well as no physical trespass, the Court expansively explained that “the question we confront today is what limits there are upon th[e] power of technology to shrink the realm of guaranteed privacy.”  The Kyllo Court thus ruled that a governmental search for “intimate details” of the home can trigger the Fourth Amendment.

            Warrantless dog sniffs, aerial surveillance of fenced backyards, trespass on “open fields” (which need be neither “open” nor “fields”) – and today, at least in the lower courts, cell phone, email and computer searches – have all been approved, even when no “exigency” exists, under prior doctrine as not intruding on a “reasonable expectation” of privacy.

            Then in 2012 the Court suggested a new tack.  In United States v. Jones, the Court ruled (Justice Scalia writing again) that the installation of a GPS tracking device on the underside of a car – a location that is hardly “private” – can still trigger the Fourth Amendment protections.  Search and seizure limitations can be determined “either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.”  This dual focus is necessary for the “preservation of past rights” recognized at the time of the Framing.  Thus a “physical occupation” of a person’s property (Fourth Amendment “effects”) for purposes of investigation is a “search” in the constitutional sense, regardless of the absence of privacy concerns.

Most recently in this refocusing of Fourth Amendment analysis onto property concepts, last Term’s decision in Florida v. Jardines surpised many “privacy analysis” fans.  Justice Scalia again wrote for a five-Justice majority, and held that bringing a drug-sniffing dog onto the front porch of a residence, fully visible from the street and a place where any neighbor or girl scout might go (thus not “private”), is still a Fourth Amendment triggering event because it represents a governmental trespass on the “curtilage” of a home in violation of any implicit license that a front sidewalk and doorbell might create.


The Legal Landscape of Co-Tenant Residence Searches

            In between Kyllo and Jones/Jardines came Georgia v. Randolph (2006).  Although the Court had previously upheld a “consent” exception for warrantless searches of jointly occupied residences based on the consent of only one co-tenant (Matlock, 1974), in Randolph two co-tenants (disputing husband and wife) were present together on the front stoop.  These co-tenants were estranged, and although the wife was willing to consent to a police search of their residence, the husband clearly objected.  Which should control, for Fourth Amendment purposes?

            In Matlock the Court had stressed that co-tenants “assume the risk” that one will consent to governmental intrusion on the privacy of the residence, so if only one co-tenant is present he or she can consent for all.  (Justice Sotomayor has since famously suggested, in her concurrence in Jones, that the entire “third-party disclosure” privacy doctrinal line should be reconsidered.  Why an expectation that your roommate may have friends over in your absence, should extend to the police, is unclear.)  In Randolph, the Court ruled that when an objecting co-tenant is “physically present” and makes his non-consent clear to law enforcement, the privacy concerns implicated in a Katz analysis are fully implicated.  Thus the government may not rely on “consent” in this situation to dispense with Fourth Amendment protections.  “Common understandings” and “customary social usage,” the majority concluded, mean that “no sensible person” would enter a residence when one co-tenant is present and vehemently objecting.  These “reasonable expectations” of privacy controlled in Randolph.

Now, Randolph is admittedly a less-than-overwhelming precedent.  The five-Justice majority was written by Justice Souter who is now retired; Justice Alito did not participate (making the vote 5-3); Chief Justice Roberts wrote a strong dissent noting the “randomness” of the “physically-present” limitation; and the focus on present-day “customary social understandings” represents a constitutional analysis that seems unconscious of the recent shift back to property concerns, as well as a failure to consider the law of trespass and property “at the time the Fourth Amendment was adopted” (Scalia, dissenting, in Randolph).  In this regard, Justice Scalia’s dissent in Randolph looms quite large, because he is undoubtedly the intellectual architect of the shifts and refinements in Fourth Amendment doctrine over the past 15 years.  Without Justice Scalia’s vote, Fernandez presumably cannot win.  On the other hand, historical analysis of co-tenant consents was remarkably absent from the Randolph Court’s analysis – and also from the parties’ briefs filed in Fernandez today.  Whether the “fiercely proud men” who wrote the Constitution would have allowed their roommates to admit British soldiers, even when the soldiers were well aware of the Framer’s non-consent, is certainly an open question.

Why Fernandez Isn’t “Easy”

            So we now return to the seemingly trivial – but in reality quite “deep” – questions presented in Fernandez.  As in Randolph, Mr. Fernandez was in a dispute with his live-in girlfriend, and they stood together at the front door when police arrived at their residence.  Fernandez (perhaps a reader of this blog and Randolph?) quite clearly said “You don’t have a right to come in here.  I know my rights.”  On these facts, Randolph would prohibit the police from relying on any consent his co-tenant offered.  The police, however, were not interested in consent at the time: the girlfriend was bruised and bloody and the police therefore arrested Fernandez and removed him to the stationhouse.  An hour later they returned and — without any reason to believe that Fernandez had changed his objection or lost his privacy interests in his home – they obtained the girlfriend’s consent to search his apartment, finding evidence later used to convict Fernandez.

            It is simple to see that Fernandez is the “tip of the iceberg” for co-tenant facts, immediately leading to innumerable multi-factual situations in which an objecting co-tenant will be, at some time after making his search objections known to police, not “physically present” on the scene.  The objector may be not just arrested (and significantly the evidence here does not show that the officer’s motive in arresting was to avoid Randolph; compare the Court’s condemnation of a strategy designed to avoid Miranda protections in Seibert [542 U.S. 600]).  More likely, an objecting co-tenant will, at some point, have to go to work, to the bathroom, on vacation or to sleep inside.  Must an objecting co-tenant literally “camp out” on the front porch to maintain his Fourth Amendment rights?  Is Randolph’s “physically present” limitation really so narrow as to permit these exceptions?  If so, then it is undoubtedly a dead-letter – the police can always wait out an objecting co-tenant.  But importantly, Matlock simply does not answer the question, since in that case the co-tenant’s objections were not made known to the police (although they might reasonably have anticipated them).

            By contrast, in Fernandez the government is well aware that a person with full privacy  and property rights in a residence wishes to assert his full rights under the Fourth Amendment.  That is, police know there is no “consent.”  Is does not seem such an easy result, to me, that the Fourth Amendment disappears the minute such a person visits the bathroom.  In fact (and absent any exigency or other recognized exception), one might assume that the Fourth Amendment requires law enforcement to respect its requirements, when law enforcement knows that a person has fully asserted his residential property and privacy rights.

            Of course a co-tenant objection cannot last forever, and it is an obvious red-herring to so suggest.  But one might think that law enforcement cannot override a Fourth Amendment objection until some reasonable time has passed, one that might reasonably suggest a change of heart or some other relevant changed circumstance.  And the government will not long be delayed, if they have probable cause to search – a warrant can be obtained in a matter of hours, even minutes.  But if law enforcement does not have probable cause to search a residence, and no exigency exists, then one can imagine strong reasons why the Fourth Amendment might require them to refrain.

            Finally, although I doubt that “customary social understandings” can really be dispositive today, I might simply disagree with Professor Kerr about what a “reasonable person” might do in a Fernandez situation.  If I visit a friend and the friend’s roommate makes it clear s/he doesn’t want me to enter, I’m not at all sure I would just wait and then enter “when the objector isn’t there.”  In some situations I might honor the roommate’s objection; in others I might not.  And importantly, I think, the police are strangers to the residence.  Certainly a stranger to the home and its occupants is likely not to enter, when co-tenants disagree at the front door.  In fact I think the stranger would go away, until such time as the circumstances appear to have changed and the objection resolved.  This is what Justice Souter meant when he wrote, in Randolph, that a “voluntary accommodation” is normally required.  In the end, one can imagine any number of slightly different facts that might change the “customary social” reaction in such a scenario – which is why Justice Scalia is right that “reasonable expectations” provide too unfirm a ground for Fourth Amendment analysis, and the constitution is better tied to historical as well as legal concepts of property as well as privacy.



            I’m not sure how Fernandez should come out – and Mr. Fernandez is undoubtedly an unpleasant champion for the privacy and property rights of us all.  But I’ll wager to say that most people today live in co-tenant situations.  And warrantless searches of homes, when probable cause is absent and the police know that a fully entitled co-tenant is asserting his right to Fourth Amendment procedures, seem a somewhat undesirable, perhaps frightening, general prospect to me.  I am thus uneasy, rather than easy, about the outcome in this case.

Three thoughts in response:

1) Professor Little doesn’t seem so far apart from where I am in suggesting that the police should be allowed to go back and ask for consent after a tenant has objected when a “reasonable time has passed, one that might reasonably suggest a change of heart or some other relevant changed circumstance.” The question is how to apply that idea. I tend to think it’s important that the objecting tenant was arrested and is no longer there. The arrest of the objector on a serious crime, and the fact that he isn’t likely to be returning any time soon, strikes me as a relevant changed circumstance.

2) I don’t see the relevance of the Jones/Jardines cases. Those cases are about what is a Fourth Amendment search, not third party consent. But everyone agrees that the entry into the home is a search, so I don’t see how Jones or Jardines are relevant. And even if there is a basis to conclude that the consent exception applies differently for Jones searches and Katz searches — which I doubt, in light of the social norms aspect of the analysis in Jardines as to why the police can cross the curtliage to do a knock and talk — the theory of Jones is that Jones searches have been around the whole time. If so, then all of the home search cases like Matlock and Randolph were Jones and Katz searches together.

3) Professor Little suggests atthe end that the problem may be with the “reasonable expectations” idea. But again, I think there are two distinct doctrines: (1) reasonable expectations of privacy, which is a legal term of art for one test of what is a search, and (2) the doctrine of consent, which may be based on social norms, which determines when a search is constitutionally reasonable. I see those as two different questions, and I see the question in this case as solely about (2), not (1). Now, it may be that the test for third party consent shouldn’t be based on the mushy standard of social norms. I’m open to that, certainly. But the two parties seem to take the social norms standard as a given and are operating under Randolph and Matlock. If we take the issues as framed by the parties, then I think this case is relatively easy.

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