BB&K Police Bulletin: Warrantless Home Search


Supreme Court Upholds Warrantless Home Search Where One Occupant Consents Following Suspect’s Arrest

Overview: The Supreme Court has ruled that police officers can conduct warrantless home searches based upon one occupant’s consent, despite previous objections by a suspect who was arrested and removed from the home. This case involves a robbery resulting in officers pursuing the suspect to his apartment. Although the suspect refused consent to a search of his apartment, police believed he had assaulted his female co-resident and arrested him. Later, officers returned and obtained the woman’s consent to search their home. The search revealed a shotgun and gang-related paraphernalia. The court upheld the warrantless consent search despite the fact that the arrested resident had previously objected and was not “physically present” to object the second time.

Training Points: This ruling broadens an officer’s ability to obtain consent from a co-resident over the objection of the suspect during an active investigation. Officers are reminded to include specific details of how consent was obtained, including words, gestures and other actions. Note that the facts of this case involved “hot pursuit” which provided officers with sufficient cause leading up to the consent to search of the apartment and the subsequent discovery of incriminating evidence. While this ruling does not expand the consent to search exception to the warrant requirement, it does demonstrate how consent can be obtained even in the face of a prior objection.

Summary Analysis: In Fernandez v. California, officers pursued the defendant, a robbery suspect, into his home. The suspect lived with his girlfriend, who appeared battered when she opened the door. The suspect refused to allow police inside the apartment. Suspecting that a domestic assault had occurred, officers removed the suspect from the home and placed him under arrest. An officer later returned and obtained the girlfriend’s consent to search the home. The search revealed evidence tying the suspect to the robbery. The court upheld the warrantless consent search based upon the girlfriend’s consent, even though the suspect was removed, no longer on the premises, and had objected previously.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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