<img src="//bat.bing.com/action/0?ti=5189112&amp;Ver=2" height="0" width="0" style="display:none; visibility: hidden;">

    The Lawletter Blog

    CRIMINAL LAW: Search and Seizure—Consent to Search—Cotenants of Leased Property

    Posted by Gale Burns on Thu, Jan 9, 2014 @ 17:01 PM

    The Lawletter Vol 39 No 10

    Doug Plank, Senior Attorney, National Legal Research Group

         Since the decision of the U.S. Supreme Court in United States v. Matlock, 415 U.S. 164 (1974), it has been established that police may lawfully enter and search an entire residence leased by cotenants as long as one of the tenants has given permission to search. This rule was later limited in Georgia v. Randolph, 547 U.S. 103 (2006), when a divided Court ruled that in situations in which two or more cotenants are physically present when the police seek permission to search and one cotenant expressly objects to the search, the police may not proceed with the search even if another cotenant has consented to the search, absent one of the other exceptions to the warrant requirement.

         In the recent case of People v. Fernandez, 145 Cal. Rptr. 3d 51 (Ct. App. 2012), the California Court of Appeal applied these rulings to a factual situation with a different twist. In Fernandez, the facts showed that police arrived at an apartment to locate and question a suspect in a recent robbery and heard shouting and sounds of fighting from within. When they knocked on the door, a crying woman opened the door, and the police saw that she seemed to have a new facial injury. Shortly thereafter, the suspect came to the door and stated that he rented the apartment; he did not give permission for the police to enter. Based on the circumstances, the police arrested the suspect and took him away. The woman, who was a cotenant of the apartment, then gave permission for the officers to enter and search.

         The California court held that the rule of Randolph did not apply, even though one cotenant had refused entry and it was the police themselves who had removed the refusing cotenant and thus rendered the situation similar to Matlock. The court found that as long as the evidence showed that the removal of the cotenant was not undertaken simply for the purpose of facilitating a search, the fact that the cotenant had previously refused consent to search would not prevent the officers from later seeking consent from the remaining cotenant.

         The case has been appealed to the U.S. Supreme Court, which heard oral argument on the case in November and should issue a ruling in the spring of 2014.

    Topics: legal research, The Lawletter Vol 39 No 10, search and seziure, consent, cotenants, People v. Fernandez, CA Ct. of Appeal, consent must be by both, Doug Plank, criminal law

    New Call-to-action
    Free Hour of Legal Research  for New Clients
    Seven ways outsourcing your legal research can empower your practice

    Subscribe to The Lawletter

    Latest Posts