The Supreme Court granted cert Monday in Fernandez v. California. Issue:
Whether, under Georgia v. Randolph, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of 4th Amendment rights which cannot be overridden by a co-tenant.
Opinion below: People v. Fernandez, 208 Cal.App.4th 100, 145 Cal.Rptr.3d 51 (2d Dist. 2012), posted here as Cal.2: Police can remove defendant and ask for consent from co-tenant; rejecting 9th Cir. authority.
For what it is worth, this is on the petition of the citizen accused which suggests, but does not guarantee, a reversal. After all, can the police really just circumvent Randolph by removing the objector then asking around for consent until they find an unaware third party to ask? Come on...
“Today, tomorrow, next week, the week after, privileged Wall Street insiders who are considering breaking the law will have to ask themselves one important question: Is law enforcement listening?”
- Preet Bharara, U.S. Attorney for Southern District of New York
Police saw defendant on a bicycle talking to somebody in a dark SUV. When they stopped, the SUV left, other people scattered, and defendant pedaled away. He was stopped because riding his bicycle on the sidewalk violated city code. His sagging pants were pulled up for a search incident, and a baggie of marijuana was revealed stuck in his sock. Pulling up his pants was legal. State v. Butler, 117 So. 3d 87 (La. 2013).* [As a cop testified here: "When I see sagging pants, I can't tell whether he's holding up his pants, holding a gun, or holding his groin. It was a high crime area, so I thought gun."]
The search warrant affidavit here did in fact show a sufficient connection to defendant and a robbery murder for there to be probable cause. The victim’s blood on his sock was admissible. Commonwealth v. Almonte, 465 Mass. 224, 988 N.E.2d 415 (2013).*
Defendant was standing next to his car with the door open into traffic with a 40 oz bottle in his hand. An unmarked car stopped. The officer had at least PC that defendant had an open container. When he saw it was the police, he made a furtive movement to his waist suggesting a gun. The office moved toward him, and he attempted to flee, getting only three steps before being tackled. His attempted frisk was valid. United States v. Terry, 518 Fed. Appx. 125 (3d Cir. 2013).*
“Respondent Kim Maurice Fuerst’s decision to silently remain behind a locked door inside his home did not constitute an express refusal of consent to a police search. Therefore, Fuerst’s wife’s free and voluntary consent to the search of the couple's home was valid as to Fuerst.” People v. Fuerst, 2013 CO 28, 302 P.3d 253 (2013).
Defendant’s girlfriend was a cousin of a police officer investigating defendant, and she freely and voluntarily consented to search of her place finding stuff to use against defendant. State v. Blevins, 2013 W. Va. LEXIS 503 (May 20, 2013).*
The credibility on consent goes to the officers stopping defendant because the stop was based on a burned out brake light, something disprovable by a cell phone picture that anybody could take (but nobody did). If they wanted to come up with a bogus reason for the stop, it would have been something not provable at all, like crossing the centerline or not coming to a complete stop. United States v. Kelley, 2013 U.S. Dist. LEXIS 71785 (E.D. Ark. May 21, 2013).*
Defendant was reported to the police as “suspicious and disoriented.” When they found him, he was intoxicated. There was nothing to suggest he was dangerous. “[T]he information the Officers possessed about Defendant did not indicate that he was armed and dangerous.” The frisk could not be justified by that. The officers felt, however, that defendant was a danger to himself or others, and the court finds probable cause for a frisk before taking him“into protective custody under Colorado's Emergency Commitment statute.” United States v. Gilmore, 945 F. Supp. 2d 1211 (D. Colo. 2013).*
Co-defendant passenger had standing to challenge the stop (which was valid) but not the search of the vehicle owned and driven by another. United States v. Desjardin, 2013 U.S. Dist. LEXIS 70770 (D. Nev. May 17, 2013).*
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"If it was easy, everybody would be doing it. It isn't, and they don't."
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
—Pepé Le Pew
"There is never enough time, unless you are serving it."
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)