Facepalms from here.

[theweaselking]

USSC rules that refusing to consent to a search of your home doesn't bar the police from making a "consent search" - all they have to do is arrest you after your refusal, take you away, and ask someone else. And that's good enough.

"So, do *you* consent to us searching your home? Keep in mind we just dragged off the last guy who refused."

(To be slightly fair, they weren't arresting him FOR refusing consent. He just refused consent before being arrested, and as the Dissent points out, THAT'S WHAT FUCKING WARRANTS ARE FUCKING FOR.)

Comments

[ashbet]

Hmmm . . . I agree that it's a bad precedent to set, but if it's narrowly construed, it's not as bad as it sounds -- after all, Petitioner was arrested for, in part, assaulting the co-occupant of the apartment, who then consented to the search (since it was her apartment as well.)

Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present. We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared.

Now, don't get me wrong, I think the ruling is likely to be abused by the police, and I'm sure there will be another case where this comes up in the future -- but, in this specific case, I do think it was the correct ruling.

-- A <3

[theweaselking.livejournal.com]

Two points, from the dissent:
Regarding application of a relevant precedent: "if the police cannot prevent a co-tenant from objecting to a search through arrest, surely they cannot arrest a co-tenant and then seek to ignore an objection he has already made.”

Regarding Rojas' consent to the search: "Although the validity of Rojas’ consent is not before us, the record offers cause to doubt that her agreement to the search was, in fact, an unpressured exercise of self-determination. At the evidentiary hearing on Fernandez’ motion to suppress, Rojas testified that the police, upon returning to the residence about an hour after Fernandez’ arrest, began questioning her four-year-old son without her permission. Rojas asked to remain present during that questioning, but the police officer told her that their investigation was “going to determine whether or not we take your kids from you right now or not.” See also (“I felt like [the police] were going to take my kids away from me.”). Rojas thus maintained that she felt “pressured” into giving consent. See also (“I felt like I had no rights.”). After about 20 or 30 minutes, Rojas acceded to the officer’s request that she sign a consent form. Rojas testified that she “didn’t want to sign [the form],” but did so because she “just wanted it to just end.”"

(I have removed page references in the previous quotation)

Which is another way of saying: This wasn't a case of two people disagreeing on consent, one being arrested, and the other one's consent being allowed. That would be bad enough, and would still fall afoul of the "no, really, when a dude refused consent to search his home, you arrested him so that his refusal wouldn't count? Seriously?" problem. No, this was a case of two refusals, arresting the harder case, and then threatening the remaining person until they consented and taking *that* to ignore the original refusal.


And this is why warrants exist. What they *should* have done is gotten *a fucking warrant*, after arresting Fernandez, because his refusal of consent to search his home, given while he was present, is actually a thing that really matters no matter how guilty he is.

[ashbet]

You're absolutely right -- that's coercion, not consent. I wish that the Court had directly addressed the police misconduct in this case.

Disagreement retracted, because consent was never truly given.

-- A <3

[theweaselking.livejournal.com]

The problem is that the issue of her consent was not, in fact, the point of law the USSC was considering. They were only deciding whether or not it is legal to have consent refused, remove the refuser, then ignore his refusal.

Which is to say, "whether or not you have a right to refuse a warrantless search, absent probable cause". And they ruled that nope, a warrantless search that you have refused is TOTALLY OKAY in certain circumstances.

The coercion of Rojas is shit-flavoured icing on the turdcake. Even if she'd been enthusiastically asking them to come in and search, his refusal should have barred them from using a "consent search".

(She could have brought out something incriminating and handed it to them, which might have been probable cause. Or they could have gotten a warrant. Both of those would be cool.)