Consent and the US Supreme Court

Picture this hypothetical: A robbery just occurred a mile away from your apartment building. The suspect, who is being chased by police runs into your apartment building. The police lose sight of him, but they believe that he ran into one of the units in the building. The unit the police believe he ran into is your unit. Police officers knock on your door and your wife answers. It is clear to officers that the robbery suspect is not there, but they ask if they can come and look around anyways. You say “no” but your wife says “yes.” Under current case law, when co-residents of a property disagree about giving consent to law enforcement searching the premises, law enforcement cannot search unless they have a search warrant or exigent circumstances exist.

Now, add to this scenario a few more facts. Imagine that, after the co-residents disagree about giving consent to allow a search, the police officer runs the husband and wife’s background. It turns out that the husband has had a warrant issued for his arrest for failing to appear in court for a traffic ticket. The officers arrest the dissenting resident on the warrant and leave. An hour after the arrest, police officers come back and once again ask the wife for consent to search. She agrees to allow the officers search. The search uncovers a large quantity of drugs that belong to the husband. What is the result now?

The United States Supreme Court recently addressed a situation similar to the fact pattern I just described in Fernandez v. California. In that case, the Supreme Court stated that when a dissenting consenter is lawfully removed from the premises, officers are allowed to come back and once again ask for consent to enter and search the premises. In Fernandez, the argument made by the defendant was that, even though he was taken into custody after objecting, he still had objected in the first place. However, the Supreme Court rejected this argument by pointing out that it is necessary for the objecting consenter to actually be present at the premises in order to object. The defendant in Fernandez was not present because he was lawfully arrested for domestic battery.

Next, the defendant in Fernandez argued that his initial dissent to the search should be carried over for a certain period of time after expressing his dissent. However, the Supreme Court noted that this argument cannot stand as it would allow for unreasonable circumstances to arise. This included the Court’s unwillingness to put a “hard” time frame for when the dissent should run. For instance, what if the dissenter was sentenced to 15 years in prison after his arrest, should his non-consent to search extend for those 15 years? The Court was unwilling to put a time frame so as not to address circumstances such as these.

Returning to our fact pattern, based on the Supreme Court’s decision, the drugs found belonging to our hypothetical husband can be used to form the basis for Possession of a Controlled Substance charge, a felony in Illinois. A defense attorney’s motion to quash the evidence seized, based on a consent argument, would not be successful and the husband would be facing serious consequences as a result of the seizure of the drugs, including jail time.

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James A. Payonk, Jr.

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