view full story- Opinion analysis: The Court narrowly limits a precedent allowing co-occupant objections to warrantless consent searches
Unsurprisingly (see my post-argument analysis here), this morning the Court ruled in Fernandez v. California that Georgia v. Randolph is a “narrow exception” to the normal rule that “police officers may search jointly occupied premises” without a warrant “if one of the occupants consents.” In Randolph, by a vote of five to three, the Court held (over the Chief Justice’s vigorous dissent) that an objection to searching made by a “physically present” co-occupant must be honored, even if another occupant is consenting at the time. Today the Court made clear that its holding in Randolph “was limited to situations in which the objecting occupant is present.” Even when the objector has been removed by police, if the removal is made for “objectively reasonable” reasons, then a consenting co-occupant provides sufficient authority to search.
The voting line-up
Today’s six-to-three majority was written by Justice Alito (who was not on the Court for Randolph) and joined by Justice Breyer (whose vote for the defendant in Randolph was “decisive,” as today’s opinion notes). Justice Scalia explains in his concurrence that there is also “no difficulty” under his recent property-based views (for example, Florida v. Jardines), because there is no clear common law authority giving one co-tenant absolute authority to block access over another co-tenant’s consent; and Justice Thomas filed a concurring opinion to “make clear the extent of [his] disagreement with Randolph.” Justice Ginsburg’s dissent, joined by Justices Sotomayor and Kagan, gamely advances the not-informidable arguments in favor of search warrants over exceptions, but the majority’s apparent antipathy (save for Justice Breyer) toward Randolph leaves that decision “diminished” and “shr[u]nk[en] to petite size.”
The essential facts
The Court’s opinion rehearses in some detail events that led the police to Fernandez’s apartment after a violent gang-related robbery and upon hearing “screaming and fighting coming from” inside. His girlfriend (Rojas) having opened the apartment door, Fernandez objected to any police search, standing on his doorstep and saying “I know my rights.” Not well enough, it turns out. Rojas was holding an infant and showed signs of bruises, so the police promptly removed Fernandez and arrested him on suspicion of domestic abuse as well as the knife-wielding robbery. When the police returned an hour later, Rojas gave consent for the police to search the apartment, and the trial court later found that consent to be voluntary. (Justice Ginsburg’s dissent says that there is “cause to doubt” the voluntary nature of her consent, and the facts are somewhat unsavory, with Rojas claiming the officers threatened to take her children.) Because Fernandez was no longer “physically present” and his removal was “objectively reasonable,” the Court ruled that Rojas’s consent to search the jointly occupied premises was valid, even though Fernandez had earlier made his objection clear.
The majority opinion
Justice Alito’s fifteen-page opinion is straightforward. The rule that jointly occupied premises may be searched on the consent of one tenant was “firmly establish[ed]” in Matlock, even though Matlock (the other co-tenant) had just been arrested and was nearby in a place where “the police could have easily asked him for consent.” Similarly, in Illinois v. Rodriguez, although police could have awakened the tenant (Rodriguez) who was sleeping inside, they instead validly relied on the consent of an apparent co-tenant (who later turned out to actually lack co-tenant authority). Because search warrants, “even with modern technological advances,” nevertheless “impose burdens” on “everyone involved” – police, magistrates, and the consenting co-occupant as well – the Court holds that a consent search is reasonable and not to be unnecessarily denied. While Justice Ginsburg contends that “this declaration has it backwards” – exceptions to the warrant requirement, including consent, should be “jealously and carefully drawn” – her disagreement goes directly to the deepest theories of the Fourth Amendment which have been driving the Court’s jurisprudence, and disagreements, in this area for over a century. The Court today is driven not by a warrant “requirement” but rather the amendment’s general “reasonableness” clause.
An aside on domestic violence
Although the Court does not note it explicitly, in all four of the leading co-occupant consent cases (Matlock, Rodriguez, Randolph, and Fernandez), the co-occupants had some intimate relationship and the male was suspected of crime while the female’s consent was sought. As Justice Ginsburg notes, “the specter of domestic abuse” hangs over these cases — which was in fact the basis for the Chief Justice’s dissent in Randolph. But Justice Ginsburg, while expressing her longstanding concerns about domestic abuse, emphasizes that such concerns “hardly necessitate … diminution of … Fourth Amendment rights,” and that “exigent circumstances” in such cases will usually allow an immediate search. The Court’s majority, however, counters that any other rule would “show disrespect for [the female co-occupant’s] independence,” and correctly notes that the Court’s opinion in Randolph “went to great lengths” to make clear its limitation to physically present objectors.
A dictum in Randolph is clarified.
As today’s opinion candidly notes, a dictum in Randolph suggested that a co-occupant’s consent might not suffice if police removed an objector “for the sake of avoiding possible objection.” The majority notes, however, that the Court has generally rejected subjective motive inquiries. So, the Court explains, Randolph’s “dictum is best understood” to refer only to situations “in which the removal of the potential objector is not objectively reasonable.” Because the objectively reasonable basis for Fernandez’s removal here was not contested, his case does not fall within this reading. I would also note that, perhaps as importantly, the dictum in Randolph is not rejected, but rather left for possible application in future cases showing such “improper motive.” See, for example, Missouri v. Siebert in the Fifth Amendment context (condemning an improper motive to circumvent Miranda).
The balance of interpretive practical problems
The Court’s opinion finally explains the “plethora of practical problems” that would arise if Fernandez’s objection were ruled to persist even after he is fairly removed from the scene. How long would his objection last? How long would his “common authority” last? The length of a fifteen-year imprisonment sentence? Could objections be registered in advance by criminal co-tenants? While also noting that the “outer boundaries” of Randolph’s remaining “physically present” rule remain undefined, the majority concludes that the balance of interpretive problems tilts strongly in favor of limiting Randolph to “physically present” circumstances. This is the majority’s only response – rather than an explicit discussion – to Justice Ginsburg’s own questions: does Randolph cease to apply if “the objector leaves the door to retire for a nap, answer the phone, use the bathroom, or speak to another officer outside?” But by noting that the Court just last Term adopted a “near the premises” rule for detaining individuals at the scene of a search, the majority not only suggests a reasonable application of the remaining Randolph rule, but also secures the vote of Justice Kennedy, who authored that 2013 Bailey opinion.
In the end, the practicalities of today’s ruling seem limited, because Justice Ginsburg is correct in noting that in most cases we care about, police will have either an exigency that permits immediate warrantless entry or probable cause that allows them to quickly obtain a warrant. Just last Term, in Missouri v. McNeely, the Chief Justice noted that “e-warrants” can be obtained in fifteen minutes or less. Thus, today’s decision is unlikely to make large waves in the deep ocean of Fourth Amendment caselaw. The larger battles, however (excuse my mixed metaphors), have yet to be fought. Cellphone searches and NSA surveillance remain to be explored. Today’s opinion provides little signal as to the Justices’ views in these broader arenas.
“Plain English” summary:
A home or apartment is often jointly occupied by more than one person. In the past, the Supreme Court has ruled that any one person who is a “joint occupant” can consent to a police search of the shared residence, without a search warrant. But in 2006, the Court ruled that when co-occupants are on the doorstep and they disagree about whether to let the police search, the police can’t go in if a “physically present” co-occupant objects.
In the case decided today, one co-occupant (Fernandez) was present and objected to a police search, but the police removed him from the scene because it appeared he had just battered his girlfriend (and also taken part in a violent robbery). When the police came back an hour later to ask the girlfriend for consent to search the apartment, she gave it. By a vote of six to three, the Court ruled that the search which followed did not violate the Constitution, because Fernandez was no long physically there and had been removed for fair reasons. Respect for the girlfriend’s independent voluntary consent requires that it be honored.
Three Justices dissented, arguing that the girlfriend had been pressured into consenting, and that police should have gotten a search warrant once they knew Fernandez objected to the search. Such dissents are not unusual, but the majority opinion sets the legal rule for this case.
In a sharp turnaround, a commission that advises the governor on criminal sentencing issues backed legislation Thursday to reduce penalties for simple possession of marijuana.
In November, the Louisiana Sentencing Commission turned down the idea of reducing sentences for people convicted of possessing marijuana. But after occasionally rancorous debate Thursday, the commission voted favorably on a measure that would do just that.
Ricky L. Babin, who chairs the Sentencing Commission, shook his head. “I never thought I’d see the day,” he said. “This is a policy recommendation to the governor,” said Babin, who added he personally opposes the commission’s stance. “It doesn’t mean every individual here agrees with every resolution.”
Gov. Bobby Jindal responded late Thursday to the Sentencing Commission’s actions in a prepared statement: “We have not reviewed the specifics of these bills, but in general we are in favor of passing common-sense sentencing reforms that, when appropriate, lessen sentences for nonviolent drug use offenders while focusing on rehabilitation for offenders.”
The Sentencing Commission is made up of 22 members — 13 of whom are appointed by the governor — from the legal profession and the judiciary. Their task is to analyze criminal justice issues and make recommendations. The debate over marijuana came as the commission considered recommendations on a number of bills being considered during the Louisiana legislative session that begins March 10.
The commission voted favorably on House Bill 14, filed by state Rep. Austin Badon Jr., D-New Orleans.
Under today’s law, an offender convicted the third time for possession of marijuana faces a sentence of up 20 years in prison and a $5,000 fine. Badon’s legislation would reduce third-offense penalties to a maximum of five years in prison and a $2,000 fine. Those convicted a second time for possessing marijuana, under HB14, would face a maximum two-year term and a fine of no more than $500, which is down from the law’s five-year sentence and $2,000 fine. It would create a fourth- and subsequent-offense possession charge that carries a sentence of no more than eight years in prison and a $2,000 fine.
Gregory M. Thompson, a New Orleans lawyer who was tasked with analyzing the legislation for the commission, said he was surprised at the debate. His job was to review the bill and evaluate its impact.
“This was the administration saying ‘Take a look at this bill and tell us what you think.’ My aim was not to take a position one way or the other,” Thompson said. “But whenever you mention marijuana, well, that seems to inflame passions.”
Thompson pointed out that for all the debate over whether the commission supported or opposed leniency for marijuana convictions, what they actually voted on was a statement that “HB14 achieves a small degree of balance” with the laws that other state legislatures are passing in the South “and somewhat comports with the desires of the majority of Louisiana citizens who favor significant reductions in these penalties.”
Kentucky reduced all simple possession of marijuana convictions to sentences of no more than 45 days, Thompson said his research showed. Mississippi charges a fine for the first offense and limits the jail term to six months for a conviction on a third offense.
State Sen. Robert Kostelka, a member of the commission and chairman of the state Senate committee most likely to consider the legislation, argued against the commission’s stance. He said marijuana is dangerous and a precursor to harder drugs. He also argued that lessening the sentences would hinder the ability to prosecute criminals.
Kostelka vowed to oppose the measures in the Legislature.
The commission also voted against reporting legislation, as written, drafted by state Rep. Dalton Honoré, D-Baton Rouge. It then came back and expressed support after he verbally said he would make the changes.
His House Bill 130 would reduce the ability of prosecutors to use earlier marijuana offenses to enhance penalties. Honoré said he knew of instances in which prosecutors searched a defendant’s past and came up with a decades-old marijuana conviction so they could use it to seek enhanced sentences for crime they are prosecuting today.
Seven members of the commission voiced concern because HB130 would apply to both possession and distribution of marijuana. That led to the commission voting 3-7 against reporting Honoré’s bill favorably.
After he said he would remove the language and allow prosecutors to seek enhanced penalties for offenders previously convicted of distribution, the commission voted 8-3 as an expression of support should the changes be made.
For Laura Lavan, the choice was simple. Her son, Kardae Caldwell, 16, was bored with school to the point of possibly dropping out, which was not acceptable in Lavan’s eyes, so she began researching alternative educational programs.
She learned about the Louisiana National Guard’s Youth Challenge Program, and after speaking to youth counselors and police officers, she strongly recommended her son give it a try. Otherwise, she told him, if he dropped out, he would need to find somewhere else to live.
He decided to attend and was one of the 250 cadets, 200 boys and 50 girls, hailing from all over the state who participated in Family Day on Sunday where relatives got to watch them participate in an official military parade and review ceremony at the Gillis W. Long Center in Carville.
The cadets have made it through 18 weeks of the residential program, which started in October, and have only four weeks left before it ends. Maj. Damon Price said 343 cadets were in the class when the program began in October, but 93 left for various reasons, including attitude problems, fighting or not making an effort to change.
Lavan said she was happy her son was in the program. “I didn’t want to lose him to the street,” Lavan said.
The program in Carville is one of three Youth Challenge Programs sponsored by the Louisiana National Guard — the other two are at Camp Beauregard near Alexandria and Camp Minden near Bossier City — and one of more than 30 programs nationwide.
The program offers at-risk adolescents from 16 to 18 years old an opportunity to pass their High School Equivalency Test, learn life skills and job training, and discover leadership and responsible citizenship in a military-like environment. continue reading
Frustrated with the yawning distance between the pronouncement of a death-penalty sentence and the actual execution, state Rep. Kenny Havard wants to accelerate the process.
“We have inmates on death row for 20 to 30 years,” Havard complained. At issue is whether his proposed solution would speed anything at all.
Havard, R-St. Francisville, filed House Bill 71 to eliminate an exemption that gives death-row inmates extra time to file their post-conviction appeals. Under the bill, inmates would have to file their state court applications for post-conviction relief within two years of their sentence becoming final. The idea is to accelerate the appeals process.
The bill will be debated in the legislative session that starts next month.
“My view is any effort to tinker with post-conviction will prolong every case by 10 years while we litigate the new rule. The people on death row will applaud any effort to impose unconstitutional time limits,” Baton Rouge criminal defense attorney Jim Boren said.
Dale Lee, a prosecutor who handles appeals for the East Baton Rouge Parish District Attorney’s Office, pointed to another problem with Havard’s proposal. Because of a deadline on federal habeas corpus writs, death-row inmates are pretty speedy in filing with state courts for post-conviction relief. Havard could be trying to fix a problem that doesn’t even exist, he said. A federal habeas corpus writ generally is a condemned killer’s last shot at escaping execution. It comes into play after other appeals have been exhausted. Condemned killers must file such writs within strict deadlines. Filing for post-conviction relief at the state level can stop the clock on lodging federal habeas corpus writs.
What many attorneys do is file a shell petition for post-conviction relief simply to halt the federal clock. Two or three pages of vague complaints might be filed. “We spend most of our time in (post-conviction reliefs) trying to get the groups appointed to bring something with some meat on it,” Lee said.
Families and legislators like Havard are frustrated with the wait. Seven of Louisiana’s death-row inmates have been there since the 1980s. The last inmate put to death was Gerald Bordelon, who had to fight for his right to waive his appeals.
Earlier this month, the state agreed to delay the execution of 70-year-old Christopher Sepulvado in the DeSoto Parish killing of his young stepson. Sepulvado was convicted of beating the 6-year-old with a screwdriver and scalding him with hot water.
Sepulvado raised questions about the drugs that the state plans to use to put him to death. Unable to get pentobarbital, the state plans to use a largely untested drug combination for the lethal injection. An April trial now is set in Baton Rouge’s federal district court on the constitutionality of Louisiana’s new execution protocol.
Other death row inmates want to jump into the case, which originally was filed not by Sepulvado, but by St. Tammany Parish condemned killer Jessie Hoffman. Among the intervening inmates is Kevan Brumfield, who wants to raise constitutional objections to the state’s plans to kill him for the death of Baton Rouge police officer Betty Smothers.
Havard said death row inmates seem to file petition after petition.
“They’re tough issues. No one wants to put someone to death unless they’re sure they did it. It’s not fair to the victims’ families to go through this process every couple of years,” he said.
Havard acknowledged that his legislation has problems because of the federal timelines. He said he hopes to get something accomplished, nonetheless.
“Death penalty litigation is very complex and time-consuming. We welcome any effort by the Legislature to prevent needless delays in the process,” Lee said.
Havard also wants to expand the definition of the death penalty to apply to the killings of correctional facility employees. He said inmates should be held accountable for deaths within prison walls. That piece of legislation is House Bill 52.
“We need to start treating inmates like they’re inmates and not like they’re living at the Holiday Express,” he said.
First-degree murder is the only crime punishable by the death penalty in Louisiana. It is triggered when the victim is younger than 12 or older than 65, or when the victim is a firefighter, a peace officer or a civilian employee of the Louisiana State Police Crime Laboratory. Death by lethal injection also comes into play when another felony, such as armed robbery or rape, is involved.
Legislators recently made the symbolic gesture of including taxicab drivers in the list of victims covered by the death penalty. Cab drivers generally are killed during an armed robbery — the classic ingredients for a capital case — so the legislation was seen as a supportive nod toward the cab industry.
Havard said he wants to protect prison guards, but they probably are already considered peace officers or are killed during felony circumstances such as an escape. Havard and the bill’s co-sponsor, state Rep. Major Thibaut, represent communities in which prison workers loom large.
“They do take a huge risk in working for that facility,” said Thibaut, D-New Roads.