When to Get a Search Warrant?

by Jack Dunphy

When considering a search of a suspect’s home, a police officer will most often ask, “How can I do this without getting a search warrant?” When considering a case involving a warrantless search, a judge will most often ask, “Why didn’t they get one?” Distilled to their essence, these are the questions in a case now before the Supreme Court, Fernandez v. California

In 2009, Walter Fernandez was arrested by Los Angeles Police Department officers and charged with robbery, corporal injury of a spouse, and unlawful possession of a weapon by a felon. When the trial court refused his motion to suppress the relevant evidence as the product of an unlawful warrantless search, Fernandez pled guilty and was sentenced to 14 years in prison. He appealed the trial court’s decision on the suppression motion, losing at each juncture, but the Supreme Court has agreed to hear the case.

At issue is the search of Fernandez’s home, which was conducted with the consent of Fernandez’s live-in girlfriend. Facts presented at trial showed that Fernandez had committed a robbery near his residence. When police officers went to his home to investigate, his girlfriend answered the door, and she bore injuries suggesting she had just been in a fight. When the officers asked if they could come inside, Fernandez appeared and denied permission. He was arrested for battering his girlfriend and taken to a police station. 

Police officers later returned to the home and asked Fernandez’s girlfriend for permission to search it. She gave consent orally and in writing, and officers then discovered the damning evidence against Fernandez. The question before the court is whether Fernandez’s objection to a search of his home should have remained in force while he was in custody even as his girlfriend, a person with coequal standing in the home, granted consent to such a search.

As one might expect, the editors at the New York Times sided with Fernandez, writing on Tuesday that “[t]he home, as the court has said, has long enjoyed ‘special protection as the center of the private lives of our people.’ The justices should reaffirm that principle and require police who wish to search a home to get a warrant, even if the only person standing in their way is in a holding cell.”

In this the Times’ editors ignore the rights of the other resident of the home, the woman Fernandez had battered and who therefore, in Fernandez’s absence, should enjoy the right to invite police into her home if she so chooses. Yes, the police officers could have obtained a search warrant. Had they done so, Fernandez would be doing his 14 years without an avenue of appeal — and without arousing the attention and sympathies of the New York Times’ editors. I’d be curious to know if their decision not to seek a warrant was based on a desire to minimize overtime, a goal the LAPD brass often seems to prize even above that of solving crimes.

It’s an interesting case and a close call, but when the court rules later this term, I wouldn’t advise Mr. Fernandez to have a taxi waiting.

— Jack Dunphy is an officer in the Los Angeles Police Department. “Jack Dunphy” is the author’s nom de cyber.

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