Five thoughts about Fernandez v. California

Yesterday, the Supreme Court handed down Fernandez v. California, a Fourth Amendment case on the third-party consent doctrine that I blogged about here, here, and here. I have a post offering several reactions to the decision here at SCOTUSblog. Here’s an excerpt:

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:

  • “It seems obvious that the calculus of this hypothetical caller would likely be quite different if the objecting tenant was not standing at the door.”
  • “If Randolph is taken at its word — that it applies only when the objector is standing in the door saying ‘stay out’ when officers propose to make a consent search — all of these problems disappear.”

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?

SCOTUSblog doesn’t allow comments, so I’m particularly interested in reader feedback. What say you, VC commenters?

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.

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