I. INTRODUCTION. idiosyncrasies as the good stuff, which that person may choose to share by letting others into his

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1 FERNANDEZ V. CALIFORNIA AND THE THIRD-PARTY CONSENT DOCTRINE: HOW CONSTITUTIONAL RIGHTS ARE DEPENDENT ON THE WHIMS OF SOCIETY I. INTRODUCTION In the film Good Will Hunting, Robin Williams characterizes an individual s private idiosyncrasies as the good stuff, which that person may choose to share by letting others into his weird little world. Williams monologue underscores the premium that people, particularly Americans, place on privacy and the right to convey their secrets only to those individuals whom they consciously choose. The Framers of the United States Constitution understood this concept and sought to memorialize it through the Fourth Amendment. 1 However, since its decision in Frazier v. Cupp, the Supreme Court has shrunk this protection in cases of third-party consent. 2 Recently, in Fernandez v. California, the Court considered whether the warrantless search of a home violates the Fourth Amendment when an absent occupant objects and a present occupant consents to the search. 3 The United States Constitution guarantees that the right of the people to be secure from unreasonable searches and seizures, shall not be violated. 4 Generally, warrantless searches of a home are per se unreasonable under the Fourth Amendment. 5 However, there are exceptions to this general rule. 6 One such jealously and closely drawn 7 exception is willing consent, which the Supreme Court has held to ma[k]e a warrantless search reasonable under the Fourth Amendment. 8 Consent has evolved beyond that given by the tenant, 9 whose premises are to be searched, to a third-party co-tenant 10 who has common authority over the premises. 11 Common authority to justify a third party consent search was defined in U.S. v. Matlock as mutual use of the property by persons generally having joint access or control for most purposes. 12 While this authority does not rest upon the law of property, 13 property law has an influence on authority. 14 1

2 The Court s interpretation has evolved, by its reading of the Fourth Amendment s two clauses, 15 to only guarantee protection against unreasonable searches. 16 The third-party consent exception skirts the general warrant requirement because the ultimate touchstone of the Fourth Amendment is reasonableness 17 and consent has been presumed reasonable justification for a warrantless search. 18 Therefore, a test of Fourth Amendment reasonableness is required in consent cases. 19 The Court in Randolph recognized that a constant element in consent cases is the significance given to widely shared social expectations. 20 These expectations are influenced, but not controlled, by concepts of property law. 21 This note will discuss third-party consent under the Fourth Amendment to determine how the Court came to its decision in Fernandez. The implications of Fernandez are frightening, but it seems to follow the trend of third-party consent cases. Part II of this note briefly summarizes the development of third-party consent jurisprudence. Part III focuses on the circuit split that resulted from the decision in Randolph to offer insight into how it affected Fernandez. Part IV provides a brief summary of Fernandez and discusses the issues identified in the majority and dissenting opinions. Part V analyzes Fernandez and its prior law, then suggests possible solutions for reserving the Court s trend and returning privacy rights to individuals. Part VI offers a final reflection. II. ALTHOUGH IT IS NOT A SUPERHERO, EVEN FERNANDEZ HAS AN ORIGIN STORY A. EVOLUTION OF LAW PRIOR TO RANDOLPH The Court has long recognized the validity of consent searches as a constitutionally permissible and wholly legitimate aspect 22 of the standard investigatory techniques of law enforcement agencies. 23 However, in the past, the Court was hesitant to authorize third-party consent searches. 24 In cases such as Chapman v. United States 25 and Stoner v. California, 26 the 2

3 Court rejected arguments that third parties could consent to a search. Then, the Court shifted its focus in Fourth Amendment consent cases to the tension between privacy rights and the fact that individuals surrender some of those rights by sharing property. 27 In Frazier v. Cupp, the Court found that Frazier s joint use of a duffel bag with his cousin granted the cousin authority to consent to its search. 28 This decision was based on the rationale that if Frazier shared the property and left it at his cousin s home, then he was held to have assumed the risk that his cousin would allow someone else to look inside. 29 Following a series of lower court decisions, the Court applied the Frazier rationale to a home search in United States v. Matlock. 30 In Matlock, police arrested a man in his front yard and received consent from his girlfriend, who appeared to live in the home, to search his bedroom. 31 The Court focused on whether Matlock s girlfriend had authority to consent, but decided rather quickly that the consent of one who possesses common authority over premises or effects is valid as against the absent, non[-]consenting person with whom that authority is shared. 32 The two-prong rule for co-tenant consent, adopted in a footnote, required (1) common authority based on mutual use by persons having joint access or control and (2) assumption of the risk that the co-tenant might permit the common area to be searched. 33 The common authority prong was expanded in Illinois v. Rodriguez. 34 In Rodriguez, the Court found that police officers reasonable reliance on the apparent authority of Rodriguez s ex-girlfriend validated the search. 35 Justice Scalia s majority opinion concluded that sufficient probability, based on the facts, is the touchstone of reasonableness under the Fourth Amendment. 36 B. GEORGIA V. RANDOLPH: SOCIETY CANNOT AGREE ON ANYTHING EXCEPT MANNERS Prior to 2006, the Court had not definitively ruled on whether a present co-tenant could object and prevent a third-party consent search. 37 In Randolph, a husband unequivocally refused 3

4 consent to a search, which his wife readily gave. 38 Under the framework of widely shared social expectations, 39 which was derived from the common authority analysis in Matlock, 40 the Court reversed its trend and held that a warrantless search over the express refusal of consent by one physically present tenant is not valid as to him when consent is given by a co-tenant. 41 The Court did not intend to undercut Matlock and Rodriguez with this decision, instead it drew a fine line for situations where the objecting tenant is in fact at the door and objects. 42 Randolph s social expectations 43 framework limited the broad authority to consent authorized in Matlock because the right to consent to a search is not an enduring and enforceable ownership right ; 44 rather, this authority is recognized by customary social usage as having a substantial bearing on Fourth Amendment reasonableness. 45 Therefore, there is no societal understanding of superior and inferior co-tenant authority; thus, the co-tenants must voluntarily resolve their disagreement before a valid search can be conducted. 46 III. PUTTING FERNANDEZ INTO PROSPECTIVE After the Randolph decision, courts were faced with a choice between a broad reading of Randolph protecting privacy rights 47 and a narrow reading accommodating police efficiency. 48 This ambiguity created confusion and resulted in a circuit split regarding the ability of a tenant to refuse a search when a co-tenant consents. 49 This split, which was resolved in the Fernandez decision, was the consequence of a question left unanswered in Randolph, whether a present and objecting tenant can bar the consent of a co-tenant with common authority after the objector is absent or removed. 50 A. BROAD APPROACH: LET THE TENANTS OBJECT, JUDGE In United States v. Murphy, the Ninth Circuit extended Randolph s protection to a defendant that objected to a search before he was arrested and removed from the premises. 51 4

5 Although Murphy s co-tenant subsequently gave consent in his absence, the court held that the search was invalid as to the objecting co-tenant because his objection had been registered only two hours prior. 52 The Ninth Circuit s justification for this decision was based on Randolph, 53 where the Court noted that a co-tenant s consent is only valid if there is no indication that the objecting co-tenant was removed for the sake of avoiding a possible objection. 54 This broad approach took into consideration the fact that a tenant has a reasonable expectation, based on social customs, that a visitor will not enter the tenant s home when the tenant expressly objects to the entry regardless of the tenant s physical presence at the door. 55 B. NARROW APPROACH: NOT EVEN SHORT ROUND COULD STOP THESE WALLS FROM CLOSING Although some courts applied the Randolph rule broadly, 56 a majority of jurisdictions accepted a narrow interpretation. 57 These courts 58 have held that once an objecting tenant leaves or is lawfully removed, then a warrantless search pursuant to a co-tenant s consent is valid. 59 Once the objecting tenant is absent or removed, the physical absence thwarts Randolph and the search is then analyzed under the Matlock and Rodriguez framework. 60 In United States v. Hudspeth, the Eighth Circuit held a search reasonable when a husband, arrested at his office, refused consent to search his home computer and his wife, present at the house, consented to the search. 61 The court recognized that this case did not trigger the social custom dilemma, 62 presented in Randolph s narrow holding, of a visitor at the door faced with a co-tenant disagreement about whether the visitor may enter. 63 Similarly, in United States v. Henderson, the Seventh Circuit found that Henderson s objection to a search lost its force after his lawful arrest, and his wife was free to consent to a search notwithstanding [Henderson s] prior objection. 64 Courts that have narrowly interpreted Randolph understand the limiting language in the majority and concurring opinions 5

6 of Randolph 65 as applying only to situations involving an objector s physical presence at the time of the search. 66 IV. FERNANDEZ V. CALIFORNIA: ALL IN ALL YOU RE JUST ANOTHER BRICK IN THE WALL A. FACTS OF FERNANDEZ V. CALIFORNIA After responding to reported robbery at knifepoint, police saw a suspect run into an apartment building and heard screams coming from an apartment. 67 Police knocked on the door of that apartment, which Petitioner, Walter Fernandez, co-habited with his girlfriend, Roxy Rojas. 68 Rojas had fresh injuries when she answered the door, which appeared to be from a fight. 69 The officers asked to conduct a protective sweep of the apartment, at which point Fernandez appeared at the door. 70 Both occupants appeared to have authority over the apartment and Fernandez said, You don t have any right to come in here. I know my rights. 71 The officers removed Fernandez and placed him under arrest for suspected assault on Rojas. 72 After being identified as the robbery suspect, Fernandez was taken to the police station. 73 Approximately one hour later, an officer returned and received consent from Rojas to search the premises. 74 Inside, the officer found a knife, the robbery suspect s clothing, ammunition, and a shotgun. 75 B. RANDOLPH GETS READ NARROWLY, AGAIN Fernandez pleaded nolo contendere to firearm and ammunition charges, but went to trial on the remaining charges of robbery and infliction of corporal injury on a co-habitant. 76 The trial jury found Fernandez guilty and he was sentenced to 14 years of imprisonment. 77 On appeal to the California Court of Appeal, Fernandez citing Randolph and Murphy argued that the trial court erred by denying his motion to suppress because his express objection to the search rendered Rojas subsequent consent invalid and the evidence obtained inadmissible. 78 In rejecting 6

7 Fernandez s argument, the court interpreted Randolph narrowly and held that the physical presence of the objecting occupant is indispensable to the decision in Randolph. 79 C. SUPREME COURT RESOLVES THE CIRCUIT SPLIT In a 6-3 decision delivered by Justice Alito, the Supreme Court affirmed the California Court of Appeal s decision to read Randolph narrowly. 80 The Court held that regardless of an occupant s express refusal of a search, a co-occupant s subsequent consent will support a warrantless search when the objector is physically absent 81 from the premises. 82 Justice Alito noted that Randolph did not overturn [the] prior decisions of Matlock and Rodriguez, which held valid a co-tenant s consent to the search of a shared residence. 83 Rather, Alito characterizes Randolph as a narrow exception, 84 which is limited to situations [where] the objecting occupant is present. 85 While rejecting Fernandez s argument that his objection survived his physical absence, Alito identified the difficulty in determining the reasonable duration and procedure for an absent objection. 86 Because Fernandez was absent and police had Rojas consent, the majority found it to be unreasonable indeed, absurd to require that police obtain a warrant to conduct their search regardless of the fact that Fernandez had registered his objection an hour before. 87 The Court maintained that the warrant process imposes burdens on the officers who wish to search, 88 even with advances in technology. 89 The dissent, delivered by Justice Ginsberg, took issue with the fact that the Court shrinks to petite size [the] holding in Georgia v. Randolph. 90 Ginsberg wrote that a straightforward application of Randolph would recognize that Fernandez s objection survived his arrest and subsequent absence. 91 In chastising the majority s characterization of Randolph s widely shared social expectations, 92 Ginsberg noted that these expectations do not hinge on the objector s physical presence at the time of the search. 93 Rather, Randolph provided that a resolution must 7

8 come through voluntary accommodation between the tenants. 94 Although the majority suggested that Rojas could likely have called over a friend without Fernandez s approval, 95 the Court failed to consider that background social norms that invite a visitor to the front door do not invite him there to conduct a search. 96 Ginsberg identified that police could have obtained a search warrant. She criticized the Court s disparage[ment] of the warrant requirement 97 because privacy rights cannot be totally sacrificed in the name of maximum simplicity in enforcement of the criminal law. 98 V. SO, WHAT DOES ALL THIS MEAN? Since Frazier, the Court has hacked away at Fourth Amendment protections of those individuals that choose to live with others. Today, the state of third-party consent jurisprudence is such that a co-tenant may only expect privacy in his home if he stands at the door, peering through the peephole, ready to expressly object to a search. The trend of diminishing liberties, which was slightly obstructed by Randolph, has continued through the recent decision in Fernandez. A. AND THE COURT KEEPS CHIPPIN CHIPPIN AND CHIPPIN CHIPPIN The Fourth Amendment, which spawned third-party consent through Court decisions, was adopted by the Framers to provide the necessary security against unreasonable intrusions upon the private lives of individuals. 99 Over time, as the Court began to relax the Fourth Amendment warrant requirement, reasonable exceptions allowing a warrantless search such as exigency and tenant consent emerged. However, the third-party consent exception, which allows co-tenants to make decisions regarding each other s privacy, also emerged as a reasonable exception. The premise upon which the third-party consent doctrine rests is the unquestioned validity that third-party consent searches are generally reasonable. 100 However, by blindly accepting this premise, the Court is like the foolish man who builds his home upon the sand. Frazier 101 refused 8

9 to engage in such metaphysical subtleties and assumed that an authorized third-party could consent to a search. 102 This reality is particularly troubling because Schneckloth and Matlock cite Frazier as precedent and upon that debatable premise, the Court builds the third-party consent doctrine. Perhaps one reason for the continued diminution of Fourth Amendment rights is the Court s unwillingness to examine, for the first time, whether third-party consent searches are reasonable. If third-party consent searches are reasonable, then searches pursuant to consent by a cotenant with actual authority such as Matlock are completely legitimate. However, searches pursuant to consent by an individual with apparent authority such as Rodriguez are less clear. In these instances, the individual subjected to the search did not assume any risk by sharing access or control;; therefore, regardless of how objectively reasonable an officer s reliance is on the apparent authority, police may not dispense with the safeguards established by the Fourth Amendment to protect against warrantless searches. 103 Exceptions to the warrant requirement should not be made lightly. 104 Rodriguez dismisses earlier Court precedent in Stoner as ambiguous, 105 but Stoner clearly stated that the Fourth Amendment is not to be eroded by unrealistic doctrines of apparent authority. 106 Third-party consent searches pursuant to apparent authority raise serious issues of reasonableness that the Court seems to disregard. Although Randolph attempted to reverse the Court s trend and return Fourth Amendment protections to individuals, the decision s narrowness may have actually caused more harm to individual liberties. The social expectations framework is rational because Fourth Amendment reasonableness must be determined by an objectively reasonable expectation of privacy. However, this framework s reliance on the physical presence of the objecting party greatly limits the privacy sought to be protected. Because the decision was read narrowly in Fernandez, an absent objecting 9

10 tenant s expectation of privacy is considered unreasonable. Roberts dissent accurately identifies that shifting expectations are not a promising foundation for a constitutional rule. 107 B. FERNANDEZ: YOU CANNOT TEACH AN OLD DOG NEW TRICKS The Fernandez decision was unsurprising. 108 The Court affirmed the lower court decision, which followed a majority of circuit s narrow interpretation of Randolph, and continued the trend from Schneckloth, Matlock, and Rodriguez. However, the Court s analysis of shared social expectations underscores the problem with this framework. The analysis of social expectations in Fernandez illustrates the near impossibility of discerning a common societal reaction to a tenant s objection to entry. The Court states with certainty that a visitor will enter over an absent tenant s objection, using a relative or friend as an example. 109 Without addressing the difference between calling over a friend and inviting the police to search, the Court cites Randolph 110 and eagerly assumes that a reasonable person would enter regardless of the objections of the absent tenant. 111 One reason for the Court s refusal to extend objection rights to an absent co-tenant is the practical complications that it would cause. 112 Questions surrounding duration, common authority, and procedure to register an objection would be difficult to answer, 113 but the task would not be impossible. Other areas of law have reasonable time standards, which the Court accept, and a similar practice could be employed regarding third-party consent. In order to satisfy Randolph s physical presence requirement, it would not be unreasonable to allow an objection registered with the visitor at the door to survive the objecting party s subsequent absence for a reasonable time. Moreover, this holding incentivizes police to arrest or remove an objecting tenant in order to obtain consent from a co-tenant, which after Fernandez would not violate social expectations. 114 C. YOU CAN KEEP PLUGGING THE LEAKS OR YOU CAN BUILD A NEW DAMN 10

11 One remedy to problems caused by third-party consent which the Court has consistently refused 115 is strict adherence to the warrant requirement, except in cases of emergency or consent of the individual to be searched. Although the Court has been hostile to this remedy, there is precedent to support the proposition that a home is special and deserves increased protection from warrantless searches. 116 Although a person may surrender some expectation of privacy by living with a co-tenant, that decision does not bar that person s right to stand at the door of his castle and bid defiance to all the forces of the Crown. 117 The Court has long acknowledged that the Fourth Amendment draws a firm line at the entrance to the house;; 118 however, the recent thirdparty consent jurisprudence is filled with a dilution of an officer s duty to secure a warrant 119 in favor of police efficiency. This trend is worrisome because the use of consent to conduct warrantless searches has greatly increased, 120 which considering the current consent jurisprudence means that individual Fourth Amendment rights to privacy in one s home are minimal. The Justices, generally in the dissent, who clamor for the Court to change course have recognized that effective law enforcement is an important governmental objective. 121 Their demand for warrants is not due to a lack of appreciation of the difficulty and importance of effective law enforcement ; 122 rather, it is a firm commitment to the principles of the Fourth Amendment and constitutional rights. 123 Warrants have been made easier to obtain by technological advances; 124 so, if a warrant was required in the days of telegrams and postal mail, then they certainly should be required in an age of cellphones and . The implications of the Court s apathy towards warrantless third-party consent searches are dire 125 because [g]overnment agents are now free to rummage about the house, unconstrained by anything except their own desires. 126 Surely, the Framers did not intend to shed the bondage of general warrants, only to subject themselves to an equally oppressive regime

12 Another possible remedy, related but separate from a stricter warrant requirement, is the personal consent approach. 128 This approach applies when an officer begins to focus on a particular suspect and only finds a warrantless search valid if two conditions are met: (1) the police know the whereabouts of the suspect through a reasonable effort and (2) that suspect must consent to the search. 129 This approach is easy to administer because it only requires police to obtain the consent of an available suspect. 130 Adoption of the personal consent approach would mark a shift in third-party consent law towards protecting privacy. It recognizes the validity of Randolph that a present tenant should have the right to object to a visitor s entry and rationally extends that same protection to the tenant when he happens to go to work or the store. This rule would eliminate the possibility of police to circumvent Randolph by mov[ing] people as if they were pieces on a chessboard in order to obtain consent. 131 Although this approach would require courts to examine an officer s subjective intent, 132 this determination could be made at a suppression hearing and focus on only two questions: (1) did the suspect consent and, if not, (2) why? 133 The personal consent approach, while not perfect, would at least shift third-party consent jurisprudence back towards a respect for privacy rights. VI. CONCLUSION Individuals let others into their weird little worlds because they are in love, or they are friends, or simply because they need someone to split the rent with. However, rarely do individuals choose to share a residence with an understanding, or even consideration, of the fact that this decision could expose them to warrantless searches by government officials. The recent decision in Fernandez continues the Court s trend of disregarding the privacy rights of co-tenants. This trend is particularly worrisome because of its indifference to the Fourth Amendment warrant requirement, which after all separates America from a police state

13 1 See U.S. CONST. amend. IV ( The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.... ). 2 See Daniel E. Pulliam, Post-Georgia v. Randolph: An Opportunity to Rethink the Reasonableness of Third-Party Consent Searches Under the Fourth Amendment, 43 IND. L. REV. 237, 245 (2009) (holding that individuals assume the risk that the third party will consent to a search of the shared property (quoting Frazier v. Cupp, 349 U.S. 731, 740 (1969))). 3 See Fernandez v. California, No , slip op. at 1 (U.S. Feb. 25, 2014). 4 U.S. CONST. amend. IV. 5 See Georgia v. Randolph, 547 U.S. 103, 109 (2006) (citations omitted). 6 See Fernandez, slip op. at 5. 7 Randolph, 547 U.S. at 109 (quoting Jones v. United States, 357 U.S. 493, 499 (1958)). 8 See Pulliam, supra note 2, at 242 (citing Davis v. United States, 328 U.S. 582 (1946)). 9 See Schneckloth, Conservation Center Superintendent v. Bustamonte, 412 U.S. 218, 222 (1973) (citing Katz v. United States, 389 U.S. 347, 358 (1967)). 10 The term co-tenant is used in this note to apply to all residential co-occupancy situations. 11 See United States v. Matlock, 415 U.S. 164, (1974); see also Illinois v. Rodriguez, 497 U.S. 177, 186 (1990) (holding that an individual with apparent authority who appears to have common authority, but who in fact does not can consent to a search). 12 See Matlock, 415 U.S. at 171 n See id. 15 See id. at 181 n.1 (Douglas, J., dissenting) (cautioning that judicially created reasonable searches do not conform to minimum standards of a search pursuant to a warrant). 13

14 16 See Rodriguez, 497 U.S. at See Fernandez v. California, No , slip op. at 5 (U.S. Feb. 25, 2014) (citation omitted). 18 See Rodriguez, 497 U.S. at See Georgia v. Randolph, 547 U.S. 103, 111 (2006) See 22 Schneckloth, Conservation Center Superintendent v. Bustamonte, 412 U.S. 218, 228 (1973). 23 at See Pulliam, supra note 2, at See Pulliam, supra note 2, at 244 (protecting tenants from a consent search authorized by their landlord (citing Chapman v. United States, 365 U.S. 610, 612, 617 (1961))). 26 See Pulliam, supra note 2, at 245 (rejecting that a hotel clerk could consent to the search of a guest s room as unrealistic doctrine[] of apparent authority (citing Stoner v. California, 376 U.S. 483, (1964))). 27 See Pulliam, supra note 2, at See United States v. Matlock, 415 U.S. 164, (1974) (citing Frazier v. Cupp, 394 U.S. 731, 740 (1969)). 29 (emphasis added). 30 See United States v. Matlock, 415 U.S. 164, 170 (1974). 31 at See id. at See id. at 171 n See Illinois v. Rodriguez, 497 U.S. 177 (1990). 14

15 35 at 180, 188 (noting that the ex-girlfriend had no authority to consent and Rodriguez was asleep at the time of the search). 36 See id. at 185 (holding that reasonable reliance on apparent authority validates search). 37 See Pulliam, supra note 2, at Georgia v. Randolph, 547 U.S. 103, 107 (2006). 39 at 114 ( There is no common understanding that one co-tenant generally has a right or authority to prevail over the express wishes of another. ). 40 See id. at 111 (citing United States v. Matlock, 415 U.S. 164, 170 (1974)). 41 See id. at See id. at 121 (succeeding dictum suggests that police removal of an objecting tenant for the sake of avoiding a possible objection may excuse the tenant s absence). 43 Terms such as social expectations, customary social usage, and customary social understanding are all used interchangeably with the concept of widely shared social expectations. 44 See Randolph, 547 U.S. at (noting that this authority is not controlled by property law). 45 at See id. at See Brief of the National Ass n of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner at 8, Fernandez v. California, 571 U.S. slip op. (2014) (No ). 48 But see Randolph, 547 U.S. at 115 n.4 ( A generalized interest in expedient law enforcement cannot, without more, justify a warrantless search. ). 49 See Pulliam, supra note 2, at See Pulliam, supra note 2, at 255 (citation omitted). 15

16 51 See People v. Fernandez, 208 Cal. App. 4th 100, 116 (Cal. 2d 2012) (citing Murphy v. United States, 516 F.3d 1117, 1125 (9th Cir. 2008)). 52 at 117 (deciding that a tenant s arrest should not vitiate the objection already registered). 53 See Pulliam, supra note 2, at Georgia v. Randolph, 547 U.S. 103, 121 (2006). 55 See Rory Little, Supreme Court Analysis from Professor Little: Why Fernandez v. California Isn t So Easy, U.C. Hastings News (Nov. 7, 2013), (characterizing Randolph as dead-letter if the decision is so narrow because police could simply remove the objecting tenant wait until the tenant leaves). 56 See Pulliam, supra note 2, at 253 (citing Murphy v. United States, 516 F.3d 1117, 1125 (9th Cir. 2008); Martin v. United States, 952 A.2d 181 (D.C. Cir. 2008)). 57 See People v. Fernandez, 208 Cal. App. 4th 100, 122 (Cal. 2d 2012). 58 See id. at 117 ( Four federal circuit courts and at least two state Supreme Courts have rejected the Ninth Circuit s analysis. ) See Pulliam, supra note 2, at See Fernandez, 208 Cal. App. 4th at 117 (citing United States v. Hudspeth, 459 F.3d 922 (8th Cir. 2006)). 62 (quoting United States v. Hudspeth, 459 F.3d 922 (8th Cir. 2006)). 63 See Pulliam, supra note 2, at 254 (noting that Randolph applies when the physically present tenant immediately objects (quoting United States v. Hudspeth, 459 F.3d 922 (8th Cir. 2006))). 16

17 64 Pulliam, supra note 2, at (quoting United States v. Henderson, 536 F.3d 776, 777 (7th Cir. 2008)). 65 See Fernandez, 208 Cal. App. 4th at 120 ( The Court s opinion does not apply where the objector is not present and object[ing]. ) (citation omitted). 66 See Pulliam, supra note 2, at 255 ( Randolph did not give an objector an absolute veto. (citing United States v. Henderson 536 F.3d 776, 777 (7th Cir. 2008))). 67 Fernandez v. California, No , slip op. at 2 (U.S. Feb. 25, 2014) at People v. Fernandez, 208 Cal. App. 4th 100, 111 (Cal. 2d 2012) See id. at at Fernandez, slip op. at See id. at 10 (deciding that a lawful arrest absence is the same as absence for any reason). 82 at 14 (determining that a tenant s objection only stands while objector is on the premises). 83 at 4. 17

18 84 at at at 12 (questioning what duration would be reasonable, A week? A month? A year? ). 87 at at But see id. at 8 (Ginsberg, J., dissenting). 90 at See id. at at 11) (holding that social expectations only apply if the objector is physically present). 93 at 4 (Ginsberg, J., dissenting). 94 (Ginsberg, J., dissenting) (emphasis added). 95 See id. at 11 n at 5 (Ginsberg, J., dissenting) (citation omitted). 97 at 8 (Ginsberg, J., dissenting). 98 at 9 (Ginsberg, J., dissenting) (quoting Mincey v. Arizona, 437 U.S. 385, 393 (1978)). 99 See United States v. Matlock, 415 U.S. 164, 185 (1974) (Douglas, J., dissenting) (quoting Trupiano v. US, 334 U.S. 699, 705 (1948)). 100 See Thomas K. Clancy, The Fourth Amendment Its History and Interpretation 429 (2008). 101 Pulliam, supra note 2, at 245 (adding assumption of the risk theory to the consent doctrine). 102 See Clancy, supra, at 429 (citation omitted). 103 See Illinois v. Rodriguez, 497 U.S. 177, 190 (1990) (Marshall, J., dissenting). 104 See Fernandez v. California, No , slip op. at 1 (U.S. Feb. 25, 2014) (Ginsberg, J., dissenting). 18

19 105 See Rodriguez, 497 U.S. at at 195 (Marshall, J., dissenting) (quoting Stoner v. California, 376 U.S. 483, 488 (1964)). 107 Georgia v. Randolph, 547 U.S. 103, 130 (2006) (Roberts, C.J., dissenting). 108 See Orin Kerr, Five Thoughts on Fernandez v. California, SCOTUS Blog (Feb. 26, 2014, 2:00 PM), See Fernandez v. California, No , slip op. at 11 n.5 (U.S. Feb. 25, 2014). 110 See id. at 8 (focusing on the physical presence requirement of Randolph). 111 See id. at See id. at at See Orin Kerr, Five Thoughts on Fernandez v. California, SCOTUS Blog (Feb. 26, 2014, 2:00 PM), See, e.g., Fernandez v. California, No , slip op. at 2 (U.S. Feb. 25, 2014). 116 See Florida v. Jardines, No , slip op. at 4 (U.S. Mar. 26, 2013). 117 See Brief of the National Ass n of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner at 11, Fernandez v. California, 571 U.S. slip op. (2014) (No ) (quoting Miller v. United States, 357 U.S. 301, 307 (1958)). 118 See id. (quoting Kyllo v. United States 533 U.S. 27, (2001). 119 See United States v. Matlock, 415 U.S. 164, 183 (1974) (Douglas, J., dissenting). 120 See Ric Simmons, Not Voluntary but Still Reasonable: A New Paradigm for Understanding the Consent Searches Doctrine, 80 IND. L.J. 773, 773 (2005) (citing evidence that [o]ver 90% of warrantless searches are accomplished through the use of the consent exception ). 19

20 121 See Illinois v. Rodriguez, 497 U.S. 177, 192 (1990) (Marshall, J., dissenting). 122 See id. 123 See id. 124 See Fernandez v. California, No , slip op. at 8 (U.S. Feb. 25, 2014) (Ginsberg, J., dissenting). 125 See U.S. Census Bureau (Nov. 2013), (reporting that married or cohabitating couples account for 55% of all American households). 126 See United States v. Matlock, 415 U.S. 164, 187 (1974) (Douglas, J., dissenting). 127 See id. at See Pulliam, supra note 2, at See Pulliam, supra note 2, at See Pulliam, supra note 2, at 259 ( If the police genuinely do not know [the suspect s] whereabouts, his absence nullifies his right to object. ). 131 See Pulliam, supra note 2, at 256 (citation omitted). 132 See Georgia v. Randolph, 547 U.S. 103, 138 (2006) (noting that examining subjective intent of officers in Fourth Amendment assessments have been rejected). 133 See Pulliam, supra note 2, at See Fernandez v. California, No , slip op. at 1 (U.S. Feb. 25, 2014) (Ginsberg, J., dissenting). I hereby certify that I have completed this submission in accordance with the Competition rules and in accordance with the collaboration and academic integrity requirements of the University of Miami School of Law Honor Code. Signed