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Officers investigating an assault and robbery saw Fernandez run into an apartment building. Once inside the building, the officers heard screams coming from one of the apartments. The officers knocked on the apartment door and Rojas opened it. Rojas had a bump on her nose, fresh blood on her shirt and appeared to be crying. Rojas told the officers she had been in a fight. When the officers asked her if anyone else was in the apartment, Rojas told them that she and her four-year old son were the only individuals present. When the officers asked Rojas to step outside so they could conduct a protective sweep of the apartment, Fernandez stepped forward and told the officers not to enter. The officers arrested Fernandez for assaulting Rojas. The officers transported Fernandez to the police station for booking. One-hour later, an investigator returned to the apartment and Rojas gave the investigator oral and written consent to search the apartment. The investigator seized evidence that was admitted against Fernandez.
Whether a defendant must be personally present and objecting for his refusal to a consent search to be valid.
Yes. A defendant must be present and objecting for his objection to a consent search to be valid.
In Georgia v. Randolph, the U.S. Supreme Court held officers may not conduct a warrantless search of a home over the express refusal of consent by a physically present resident, even if another resident consents to the search. Even though he was not present and objecting when Rojas gave the investigator consent to search the apartment, Fernandez argued his previously stated objection to the search of the apartment was still valid after he had been taken into custody.
The court reiterated that a person’s objection to a consent search is only valid when the person is present and objecting. If a person is present, objects to the search, but is then lawfully removed from the scene, a person with common authority, such as Rojas in this case, can give the officers valid consent to search. A person’s objection does not remain in place after his lawful arrest.
In addition, the court noted officers cannot remove a person who might validly refuse consent to search in order to avoid that person’s objection. When officers remove a person who might validly object to a search, the court will to determine if the person’s emoval was objectively reasonable under the circumstances. Here, Fernandez’s removal was objectively reasonable.
571 U.S. ___, 134 S. Ct. 1126 (2014)
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