cross posted at the demise

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause…”

The US Supreme Court has handed American law enforcement agencies an unqualified victory that arguably restricts the Constitutional prohibition against unwarranted searches and seizures.

In a split decision the court ruled that even when a person who is the subject of a law enforcement investigation has refused to have his home searched by police, the Supreme Court determined that, if law enforcement officers simply ask another person who happens to live at the same address while the investigatory target is not present (a type of third party consent referencing another’s constitutional rights) the law enforcement agents can now accept that third party’s accession and not have to (as is described in this well-known document) seek a judge’s order to conduct a search.

The case that the Supreme Court seized upon to create this new interpretation of the Bill of Right’s fourth expressed inalienable right had to do with a Californian, Walter Hernandez, who demanded that officers seek a court order prior to searching him home. Hernandez was sentenced to 14 years after being convicted of robbery, amongst other counts, based upon documents seized from Hernandez’s home. Hernandez’s roommate, Roxanne Rojas did provide investigating police officers with a written statement acceding to search the residence at a time that Hernandez was not at home.

Writing for the majority, Samuel Alito reasoned that if officers did not search the home after Rojas gave consent – her constitutional rights would have been trampled upon by the officers. Justices Sonia Sotomayor and Elena Kagan, agreed with Justice Ruth Bader Ginsburg who pointed out in her dissenting opinion that the tightrope parsing by the majority in this case provides incentive for law enforcers to avoid following the constitutionally mandated requirement that we are “secure in [our] persons, houses, papers, and effects” unless a judge is convinced that a search is warranted based upon “probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The case is Fernandez v. California, U.S. Supreme Court, 12-7822.

Image by Demetrios Georgalas aka brexians, adapted under Creative Commons license