Fernandez says that “presence” is the key to triggering Randolph, but I wonder what that means. Does the requirement of presence mean present at the door, or does it mean present on or near the premises? Some parts of the Fernandez majority opinion appear to mean presence in the sense of physical presence at the door – for example:
Other parts of the opinion appear to mean presence in the sense of on or near the premises – for example, when the Court “acknowledges that if, as we conclude, Randolph requires presence on the premises to be searched, there may be cases in which the outer boundary of the premises is disputed. . . . Having held that a premises rule is workable in (Bailey v. United States) we see no ground for reaching a different conclusion here.”
Which is it, presence at the door or presence on the premises? It’s at least possible that it’s a bit of both. Specifically, perhaps the initial objection has to be at the door, and then the objection lasts as long as the defendant is on the premises. Reading over the opinion, I’m not sure. Either way, it would seem to make a difference at least in some cases. Imagine the objector tells the police to buzz off, and the police then wait five minutes and ring the doorbell again. The consenting occupant answers the door, and the officers ask again while the objector is elsewhere in the house (perhaps in the bathroom or taking a nap). Can the police search the house then? And if so, what happens if the objecting occupant realizes what is happening and objects again — is he “present” again for purposes of the Randolph rule if he is present where the search is occurring?