Fernandez v California

"Whether, under Georgia v. Randolph, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of 4th Amendment rights which cannot be overridden by a co-tenant."

Petitioner was a suspect in an armed robbery. In investigating the armed robbery Police received a tip that the Petitioner was in his apartment. Following this tip Officers heard screaming and fighting from the apartment. Officers went to the apartment that was shared by the Petitioner and his girlfriend as "co-tenants." Petitioner's girlfriend opened the door to the police officers, but when police officers asked if they could come in the house the Petitioner said "You don't have any right to come in here. I know my rights." Petitioner was then arrested. After Petitioner was arrested, officers secured the apartment. The Officers advised the girlfriend that Petitioner had been identified as a robbery suspect, and again asked for permission to search the apartment. Petitioner's girlfriend gave consent both orally and in writing. Petitioner was convicted of second degree robbery and corporal injury on a spouse, cohabitant, or child's parent. Petitioner also plead nolo contendere to firearms and ammunition charges. Prior to trial Petitioner filed a motion to suppress the evidence that was seized in a warrantless search of his house. The motion was denied by the court and Petitioner timely appealed.

The Court of Appeals for the Second District reviewed de novo as to whether the court erred in denying the motion to suppress. Petitioner argued that Georgia v Randolph, 547 U.S. 103, was applicable because Petitioner presently did not give consent. Petitioner also argued that when a tenant "expressly withholds consents to search, a warrantless search conducted after the defendant has left or been removed from the residence is invalid even if a cotenant subsequently consents." The court did not agree with Petitioner's arguments and held the search valid. Petitioner appealed and the Supreme Court granted certiorari to determine whether under Georgia v. Randolph, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of 4th Amendment rights which cannot be overridden by a co-tenant.