CA v. Fernandez

by Charles Gillingham

The United States Supreme Court last week decided California v. Fernandez, which addressed what "presence" means when a resident of a dwelling withdraws or denies consent given by another co-tenant.


The police responded to Fernandez' apartment based on information the suspect in a gang-related assault had just entered it. Upon approaching the apartment, officers heard screaming and fighting inside. Defendant's girlfriend, who lived with the defendant, answered the door. She was bruised and bloody. The defendant then approached the door, and the officers asked the defendant to step away from the door because they suspected he had just assaulted his girlfriend. Fernandez was agitated, "You don't have a right to come in here. I know my rights." The officers restrained the defendant based on the suspicion of domestic violence. Officers then walked Fernandez away from the home. Officers determined that Fernandez was also the suspect in the gang assault for which he was arrested. The officers returned to the apartment about an hour later while Fernandez was in custody and asked the girlfriend for consent to search. She agreed, and the search of the apartment revealed evidence of the defendant's crime. Fernandez moved to suppress the evidence discovered.


The basic issue raised in Fernandez is when can the police get a person's consent to search a home for evidence of a co-tenant's crimes. Two cases which an informed officer should be familiar with govern when an officer can get valid consent from a co-tenant.

In United States v. Matlock (1974), the Court articulated the rule that any person who has "common authority" over the home can consent to a search of the home. In Matlock, the police arrested the defendant in his front yard, put him in a squad car. They then asked the woman he lived with for consent to search the home, and she agreed. The Court ruled that the police could rely on her consent because she had "common authority" over the home. In essence, when you share a residence you share the ability to consent. Of course that consent is limited to common areas and areas that the co-tenant has the right to access and control.

In Georgia v. Randolph (2006) a married couple was having a fight at their home and the police were called solely for the domestic disturbance. The wife told the officers that her husband had narcotics in a bedroom in the home. Clearly the defendant had upset her! The officers asked defendant for consent to search, he refused so the officers asked the wife who consented. The Supreme Court limited the long standing rule that a co-tenant could not withdraw the valid consent given by the other co-tenant. The Randolph court was clear in limiting the decision to situations where the co-tenant was physically present at the residence and objecting. The court also took pains to put officers on notice to NOT remove a suspect with the intent of receiving consent to search.


The Court held in Fernandez, consistent with Randolph, the objector must be physically present to object to validly given third party consent. It seems a narrow decision that doesn't break new ground. That is true insofar as the facts in the case are spelled out. It was clear that the officers didn't remove the suspect to get consent. The defendant was validly under arrest for domestic violence and a gang assault when officers returned. To be safe, DO NOT remove the suspect from the premises with the intent of getting consent from a co-tenant. It seems clear that if the suspect is not present at the location even if s/he has previously objected, a valid consent can be acquired from a co-tenant. (H/t volokh conspiracy)