Supreme Court rules in favor of police in home searches without objector present


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  Walter Fernandez flatly told Los Angeles police that they could not search his home without a warrant, saying, “You don’t have any right to come in here. I know my rights.”

But the Supreme Court ruled Tuesday that Fernandez’s right to keep police out ended when he left the premises — even though that was only because police had arrested him and taken him to the station.

An hour later, police returned without a warrant but persuaded the woman Fernandez lived with, Roxanne Rojas, to let them look around. They found evidence that led to a host of charges that cost Fernandez 14 years in prison.

The court ruled 6 to 3 that when occupants of a dwelling disagree on whether they will admit police without a warrant, the objecting occupant must be physically present. That doesn’t change if police have removed the objector, the court said.

“An occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason,” Justice Samuel A. Alito Jr. wrote for the majority.

Alito said there was no need for officers to obtain a warrant. When they arrived the first time, having followed Fernandez from the scene of a robbery, Rojas answered the door crying, with a bump on her nose and blood on her hands and shirt.

“Denying someone in Rojas’ position the right to allow the police to enter herhome would also show disrespect for her independence,” Alito continued. “Having beaten Rojas, petitioner would bar her from controlling access to her own home until such time as he chose to relent.”

Alito was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Stephen G. Breyer.

The Fourth Amendment’s protection against unreasonable searches and seizures provides that a warrant not be issued without probable cause.

But the question of when police need a warrant for their actions is a recurring one for the justices. One obvious exception is when an occupant of a dwelling consents.

Tuesday’s ruling was a follow to a 2006 decision in which the court said the consent of one person was not enough to allow police into a dwelling when another occupant is present and objects.

Justice Ruth Bader Ginsburg dissented in Tuesday’s ruling, and was joined by Justices Sonia Sotomayor and Elena Kagan.

Ginsburg quoted the late Justice Robert J. Jackson’s observation that the warrant requirement ranks among the “fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.”

She added, “Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it, never mind ample time to secure the approval of a neutral magistrate.”

The court noted just last term, Ginsburg wrote, that the speed and ease with which police may now obtain warrants — over the phone or computer lines — meant that police should generally obtain one before having blood drawn from a suspected drunken driver.

“With these developments in view, dilution of the warrant requirement should be vigilantly resisted,” she wrote.

The case is Fernandez v. California.

Ruling on frozen assets

The court also ruled Tuesday that criminal defendants who have their assets frozen when they are charged with a crime are not entitled to a hearing to claim there was not probable cause for a grand jury to indict them.

The court ruled 6 to 3 that that is the case even if the defendants are planning to use the money to hire a lawyer to defend them against the charges.

“If judicial review of the grand jury’s probable cause determination is not warranted (as we have so often held) to put a defendant on trial or place her in custody, then neither is it needed to freeze her property,” Justice Elena Kagan wrote for the majority.

“The grand jury that is good enough — reliable enough, protective enough — to inflict those other grave consequences” is “adequate to impose this one too.”

The case involves Kerri Kaley, a Florida sales representative for a medical device company in New York in 2005. She contends that she was legally allowed to resell items the hospitals no longer wanted, but for two years she, her husband, Brian, and others were the subjects of a grand jury investigation of whether illegal sales occurred, and they retained counsel to fight the charges. They put aside $500,000 to pay the lawyers in the event they were indicted.

That happened in 2007, and the government moved to freeze the couple’s assets, including the money set aside for legal fees. The government said the money was the product of their alleged offenses.

While their fight has gone on, two other sales representatives have pleaded guilty, but a third defendant was acquitted by a jury.

Some courts around the country allow hearings such as the Kaleys want, but Kagan said that in none of them has a defendant been able to show that probable cause was lacking. Certainly, she said, the Constitution does not require it.

Roberts dissented, and was joined by Breyer and Sotomayor.

“Few things could do more to undermine the criminal justice system’s integrity than to allow the government to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice — without even an opportunity to be heard,” Roberts wrote.

The case is Kaley v. U.S.

Robert Barnes

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