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LAPD Can Search Your Place With Roommate's Permission

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Tue, Feb 25, 2014 at 3:14 PM
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The U.S. Supreme Court today said cops can search your home without a warrant - even if you object - if someone else inside gives them permission.

The case involved the 2009 LAPD arrest of Walter Fernandez, who was suspected of, and ultimately convicted of, robbery. Police said they chased Fernandez to his apartment building after the ATM stickup. But when they asked to come inside, he said no.

"You don't have any right to come in here," the court quotes him as saying. "I know my rights.'"

He was arrested and taken to jail and, ultimately, a victim fingered him as being involved in the robbery.

Officers returned to his apartment about one hour later. They say they received consent to search the South L.A. residence from Roxanne Rojas, who was inside.

Cops found "several items linking petitioner to the robbery," the court said. They found a sawed-off shotgun, a knife, gang paraphernalia and clothing, the latter of which detectives say Fernandez wore during the crime.

Fernandez challenged the search, noting that he specifically denied consent, and that no warrant was issued. But police argued that they received oral and written consent from someone able to give it - Rojas. The court called the apartment "her home." She "had common authority over the premises," it said.

Fernandez's lawyers seemed to paint the cops' moves as dirty tricks: The suspect said no, and he wasn't there to say it again because they locked him up. In the meantime officers obtained the tools of his alleged crime.

 Justice Samuel A. Alito Jr. wrote the majority opinion, concluding: 
... The lawful occupant of a house or apartment should have the right to invite the police to enter the dwelling and conduct a search. Any other rule would trample on the rights of the occupant who is willing to consent. 
The majority also noted two things: It initially appeared to police that Rojas had been the recent victim of domestic violence, and her 4-year-old child was in the home. Shouldn't she be able to allow cops to search the place to ensure that she's safe and that her son is not exposed to such dangerous weaponry?

Peter Bibring, senior staff attorney for the ACLU of Southern California, told us he was "disappointed" by the ruling. The suspect was initially arrested on suspicion of domestic violence, he said, based on screams officers heard and Rojas' appearance. Cops returned later to link him to the robbery.

"The Fourth Amendment generally requires a warrant," Bibring said:
Police are basically allowed to search someone on the street if they believe there's evidence of criminal activity that would be disposed if they took the time to get a warrant. But that kind of exception has never been seen inside the home. The home is where the Constitution has always been the strongest.
Bibring was critical of the majority's characterization of obtaining a warrant as a "burden" for police. It's an essential part of the Constitution's checks and balances, he said. This is a bad precedent, giving cops incentive to arrest people who object to searches of their home, the attorney argued:
What the opinion does is create a way for police to sidestep the warrant requirement by removing someone who objects to a search of the home by arresting them and then getting consent from someone else. If that happens and they come back, is the second person who they ask likely to consent? It makes that request to search a home coercive.
Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan voted against the ruling. Ginsburg wrote:
 ... Why should the law insist on the formality of a warrant? Because the Framers saw the neutral magistrate as an essential part of the criminal process shielding all of us, good or bad ... 
In any case, game, set and match to the LAPD.

Send feedback and tips to the author. Follow Dennis Romero on Twitter at @dennisjromero. Follow LA Weekly News on Twitter at @laweeklynews.

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