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It certainly doesn’t require a law degree to know that police cannot search your home without a warrant (in most circumstances) unless you give them consent to do so. That topic is covered pretty thoroughly in popular television. However, there is a notable wrinkle in this that was created by the Supreme Court in 2014.

In Fernandez v. California, the Court held that if co-occupants of the home disagree as to whether to consent to a search without a warrant, removal of the disagreeing party from the premises for any lawful purpose (thus leaving only the agreeing party present) is enough to permit the search.

How can this affect you? Imagine that you shared an apartment with a roommate. The police come to your apartment without a warrant and want to search the premises due to reasonable suspicion of drugs or contraband of any kind. You, knowing your Fourth Amendment rights because you regularly read this blog, refuse to consent to the search. Your roommate, (who doesn’t read this blog) says, “Yes, officers, come on in. I have nothing to hide.” Previous case law would require the police to leave and return with a warrant since one of the legal inhabitants of the apartment denied consent. As per Fernandez v. California, the police now have another option: remove you from the premises for any “objectively reasonable purpose,” leaving only your roommate who continues to give consent. Thus, since you are no longer physically present to object, the police may search your apartment even though you just told them that you refuse.

In short, please inform all co-habitants of your home that it is rarely, if ever, a good idea to consent to a warrantless search of your home.

If your home has been searched and/or your property has been seized, consult with a criminal defense attorney knowledgeable of your Fourth Amendment protections against unreasonable search and seizure. Located in Clarksville, Montgomery County, McFarland Law Office can analyze whether any evidence gathered against you can be challenged or thrown out due to violations of your Fourth Amendment rights. Our firm is committed to upholding the rights granted in the Constitution and would be happy to help you. Consultations are always free and we can be reached at (931) 516-9009.



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