On February 25, 2014, the Supreme Court issued its decision in Fernandez v. California. The question at issue is whether a defendant must be physically present to successfully object when a co-tenant gives permission to police officers to conduct a warrantless search, or whether the defendant’s previously stated objection to a warrantless search, while physically present, is a continuing assertion of Fourth Amendment rights that cannot later be overriden by the co-tenant.

By a vote of 6-3, the Court held that the consent exception enunciated in its earlier decision in Georgia v. Randolph--namely, that the consent of one occupant is insufficient to authorize police to search a premises if another occupant is present and objects to the search--did not apply when an occupant provides consent well after the objecting occupant has been removed from the premises. The decision of the California Court of Appeals was affirmed.

Justice Alito delivered the opinion of the Court, joined by Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Breyer. Justices Scalia and Thomas also filed concurring opinions. Justice Ginsburg filed a dissenting opinion, joined by Justices Sotomayor and Kagan.

To discuss the case, we have Elina Treyger who is an Assistant Professor of Law at the George Mason University School of Law.

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