QUESTION PRESENTED 1 .Whether petitioner’s objection to police entry into his shared apartment barred the police from later conducting a warrantless search of the apartment based on the consent of his cotenant obtained after petitioner had been removed from the premises for a domestic violence investigation and then lawfully arrested for prior robbery. 2. Once a co-tenant has expressly told the police officers that they may not enter his home, does the fourth amendment allow the officers to obtain valid consent to do so by removing the objecting tenant from the scene against his will and then seeking permission from the other tenant shortly thereafter?
On October 12, 2009 at 12:15 police officer Joseph Cirrito and his partner Detective Kelly Clark received a radio about the assault of Abel Lopez by the petitioner Walter Fernandez with a knife. Fernandez was later joined by other gang members, The Drifters (A gang which Fernandez was affiliated with). The Officers made their way to an alley where the gang members came together. A witness told the officers that Fernandez was in the apartment that the witness was pointing in the direction of. When arriving to the apartment the officers heard loud male and female voices yelling and fighting. Back up was called before the officers approached the door. Roxanne Rojas ,the petitioner’s girlfriend and roommate answered the door. She had swelling across her forehead and on her nose; fresh blood was smeared on her shirt.
The Officers asked Rojas what was the issue was about. Rojas explained that she had been in a fight. When the officers stepped into the apartment they spotted the petitioner, who had a shaved head with a gang symbol tattooed on his head inside the kitchen wearing only boxer shorts and sweating. Assuming that the assault was recent they decided to separate them. Fernandez responded to the officers “you don’t have any rights to come here, i know my rights.” The officers physically removed Fernandez despite his warning and took him into custody. After removing Fernandez from the property he was later identified as the lead assailant in the Lopez robbery. Officer Cirrito returned to the apartment. Cirrito got Rojas to sign a consent-to-search form. The apartment was entered and searched by officers and what was found was a sawed off shotgun, a knife, and the clothing that the petitioner was wearing earlier. Fernandez was charged with second degree robbery, domestic violence on the child’s parent and three counts of illicitly possessing firearms.
The Fourth Amendment states that: “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, supported by Oath or 2 affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Florida v. Jardines, Fernandez motioned to have the evidence that was secured without a warrant suppressed but the motion was denied by the L.A District court. The court ruled that the officers acted reasonably and that it was enough to validate the search of the apartment. Fernandez was approved to go to the California court of appeals were they confirmed his Charges but denied his motion to suppress the evidence. As in the case of Georgia v. Randolph, the court decided that if one occupant is giving consent is not valid if the other is physically expressing that the authorities cannot search the premises. The fourth Amendment allows the police to obtain a warrantless search from an occupant who is believed to shares command authority but without an objecting co-tenant. Illinois v. Rodriguez,. The police did the proper thing by removing fernandez from the apartment because they believed that a person was in danger but why didn’t the police search the property before removing Fernandez instead of removing him from his home and then asking his co-tenant violating his assets, the fourth amendment was designed to protect.
TABLE OF AUTHORITIES
Coolidge v. New Hampshire,
403 U.S 443
Georgia v. Randolph,
547 U.S. 103
Florida v Jardines,
133 S. Ct. 1409
Illinois v. Rodriguez,
497 U.S. 177, 186
to put down by authority or force
a proposal for action
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