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The Shift from “Warrant” to “Reasonable”
I. Introduction
The unpredictable nature1 of Fourth Amendment jurisprudence is primarily due to
the fundamental disagreement over whether the warrant clause, or the reasonableness
clause, controls. The Fourth Amendment provides in pertinent part: the right “against
unreasonable searches and seizures” and the guarantee that warrants will only be issued
“upon probable cause . . . particularly describing the place to be searched, and the persons
or things to be seized.” 2 Traditionally, the Supreme Court interpreted the Fourth
Amendment as requiring police to obtain a warrant prior to searching a dwelling or
seizing items inside that dwelling.3 In fact, the Court has repeatedly held that warrantless
searches are “per se unreasonable.”4 Over the past 40 years however, the Court has
shifted away from emphasizing the warrant clause, and now begins its analysis of Fourth
Amendment claims from the locus of “reasonableness.”5 This trend in jurisprudence was
recently expanded in the case of Fernandez v. California, where the Court held that a
lawful co-occupant of a dwelling could consent to a police search over the explicit
objection of an absent co-occupant.6
The Supreme Court began establishing present-day jurisprudence on consent
searches in 1973, with Schneckloth v. Bustamonte.7 The Court in Schneckloth held that
consent must be voluntary in order for it to be valid, and that voluntariness is “to be
determined from all the circumstances.”8 The Court further defined consent and who
may provide it, in United States v. Matlock. In Matlock, the Court held that “the consent
of one who possesses common authority over premises or effects is valid against the
absent, nonconsenting person with whom that authority is shared.”9 While the Matlock
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court declined to address the issue of third-party consent when common authority did not
exist,10 this issue was nevertheless resolved 16 years later in Illinois v. Rodriguez.11 The
Court next evaluated the issue of whether or not an objection by a physically present
occupant could trump the consent of another occupant, in Georgia v. Randolph. 12
Randolph affirmed the rights of the objecting occupant and held that “a physically
present inhabitant’s express refusal of consent to a police search is dispositive as to him,
regardless of the consent of a fellow occupant.” 13
Most recently, Fernandez v.
California, required the Court to consider whether Randolph applied “if the objecting
occupant is absent when another occupant consents.”14
This casenote will discuss the development of Fourth Amendment jurisprudence
and the change in legal doctrine that has transpired as a result of the Court’s shift from
warrant clause-driven analysis, to reasonableness clause-driven analysis. Specifically,
Part II will explain the trend in analysis from the warrant clause to the reasonableness
clause, as well as explain the evolution of what it means to consent to a search. Part III
will discuss Fernandez v. California; and Part IV will discuss the warrant requirement,
exceptions to the warrant requirement, recommendations for deciding future cases,
potential challenges to those recommendations, and policy implications of the Fernandez
decision.
II. The Reasonableness Clause vs. the Warrant Clause Historically
Traditionally, the Supreme Court stringently held that warrantless searches were
per se invalid when no exigent circumstances existed.15 Today, however, the Court has
relaxed that standard and begins its analysis from the viewpoint of “reasonableness.”16 In
practice, this shift has partially relieved the Government of its burden. Rather than
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assume at the outset that the Government’s warrantless was search unreasonable,17 the
Court now takes a more relaxed approach and evaluates the reasonableness of the
warrantless search from a neutral perspective. A neutral judicial perspective is typically
desirable, however when it comes to protecting Fourth Amendment rights, this is not so.
As discussed below, in order to best protect Fourth Amendment rights, it is necessary that
the judiciary analyze the validity of warrantless searches from the assumption that they
are per se invalid.
A. Warrant Clause-Based Analysis
The shift from warrant clause-based analysis to reasonableness clause-based
analysis can be seen in the Court’s decisions over the past 70 years. From 1948 to 1958,
the Court decided four major Fourth Amendment cases in which they held that
warrantless searches were unconstitutional, based on warrant clause analysis.18
In Johnson v. United States, the Court held that the warrantless search of
Defendant’s hotel room violated her Fourth Amendment rights because the police failed
to secure a warrant.19 The Court noted that while the police had probable cause, their
failure to secure a warrant in the absence of “exceptional circumstances”20 made the
warrantless search unconstitutional.21
Similarly, in McDonald v. United States, the Court noted that police had probable
cause; however, the Court again ruled that the search of Defendant’s house was
unconstitutional because there were no exigent circumstances to justify the warrantless
search.22 As Justice Douglas noted: prior to the Court’s Matlock decision in 1974, “a
police officer had a duty to secure a warrant when he had the opportunity to do so, even if
substantial probable cause existed to justify a search.”23
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In holding that a warrantless search of an illegal distillery violated Defendant’s
Fourth Amendment rights, the Court in Trupiano v. United States emphasized the
importance of search warrants, and of having neutral magistrates issue said warrants.24
Like the Court would later write in Randolph,25 the Trupiano Court stressed that police
convenience alone is not sufficient to justify a warrantless search.26
In all of the above cases, the Court reasoned that a warrant was required, absent
exigent circumstances, because the Fourth Amendment purposefully “interposed a
magistrate between the citizen and the police” so that “an objective mind might weigh the
need to invade [] privacy in order to enforce the law.”27 The Court further recognized
that “[t]he right of privacy [is] too precious to entrust to the discretion of those whose job
is the detection of crime and the arrest of criminals.”28
B. Reasonableness Clause-Based Analysis
Reasonableness clause-based analysis emerged shortly after the Court decided
Katz v. United States, in 1967. 29 While the Katz decision was based primarily on
warrant-clause analysis, the Court acknowledged some exceptions to the warrant
requirement.30 The Court in Katz held that warrantless searches are “per se unreasonable
[and] subject only to a few specifically established and well-delineated exceptions.”31
One of those exceptions was for searches “conducted pursuant to consent.”32 The Court
then defined consent in Schneckloth v. Bustamonte:
when a subject of a search is not in custody and the State attempts to
justify a search on the basis of his consent, the Fourth and Fourteenth
Amendments require that it demonstrate that the consent was in fact
voluntarily given, and not the result of duress or coercion, express or
implied.
Voluntariness is . . . to be determined from all the
circumstances.33
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The Court then defined who could legally provide consent in United States v.
Matlock, in 1974.34 The issue in Matlock emerged because Defendant’s roommate, Graff,
allowed the police to search her and Defendant’s shared room, after Defendant was
arrested and placed in a police car.35 As previously discussed, the majority held that,
Graff, who possessed “common authority over [the] premises,” could validly consent to a
search “against the absent, nonconsenting [Defendant] with whom that authority [was]
shared.”36 In its opinion, the Matlock Court noted that their decision turned on the fact
that Graff had “common authority” over the shared premises.37 But what happens when
there is no common authority?38 The Court addressed that specific issue in Illinois v.
Rodriguez. 39 In Rodriguez, police entered the defendant’s apartment while he was
sleeping, after being let in by the defendant’s girlfriend, Fischer, on the pretense that the
apartment was shared.40 However, Fischer did not actually have common authority.41
The Rodriguez Court nevertheless held that the warrantless search was valid because at
the time of entry, police reasonably believed that Fischer possessed the requisite common
authority over the premises.42
The Court next considered whether or not a “physically present co-occupant’s
stated refusal to permit entry renders warrantless entry and search unreasonable and
invalid,” in Georgia v. Randolph.43 The Randolph case arose out of a search that
occurred when police entered a jointly occupied home under the consent of the wife, but
over the objection of the husband.44 In determining the validity of the search, the Court
relied heavily on social norms and stated that, “a caller standing at the door of shared
premises would have no confidence that one occupant’s invitation was a sufficiently good
reason to enter when a fellow tenant stood there saying, ‘stay out.’”45 The Court held that
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the search was unconstitutional and that a physically present occupant’s objection trumps
the consent of another occupant.46 There has been much debate about the scope of
Randolph; some contend that it is a narrow exception to the general rule that consent
searches are valid,47 while others maintain that Randolph is the general rule, and the
narrow exception is actually the validity of consent searches.48 The debate regarding the
scope of Randolph took center stage in Fernandez v. California.
III. Fernandez v. California
Fernandez v. California arose out of a robbery, possession, and infliction of
corporal injury case, whereby Walter Fernandez moved to suppress incriminating
evidence found by police during a search of his shared apartment.49 While responding to
a 911 call for a robbery, police were directed to an apartment building where they heard
screaming and fighting coming from inside.50 The officers knocked on the door and
Roxanne Rojas, who was bleeding and crying, answered.51 Upon seeing Rojas in that
condition, police asked her to step aside so that they could conduct a protective sweep of
the apartment. 52 As police began to enter the apartment, Fernandez appeared and
unequivocally objected to their entrance; however, Fernandez was immediately arrested
because the officers believed that he had just assaulted Rojas. 53 During his detention,
officers realized that Fernandez might have been involved in the initial robbery.54 Upon
this realization, police returned to the apartment and received written and oral consent
from Rojas to search the apartment for evidence.55
The majority in Fernandez began its analysis from the point of view of
“reasonableness” and asserted that the reasonableness clause of the Fourth Amendment
controls. 56 The majority emphasized two main points: that Fernandez’s arrest was
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reasonable and lawful, and that Fernandez’s interpretation of Georgia v. Randolph was
problematic. 57 Because Fernandez’s arrest was based on probable cause and was
therefore lawful, the majority reasoned that the narrow exception created by Georgia v.
Randolph did not apply.58 59 Further, the majority stated that Fernandez’s interpretation
of Randolph would “produce a plethora of practical problems” because it would blur the
bright-line rules created by precedent. 60 The majority also noted that Fernandez’s
position could not be “squared with the ‘widely shared social expectations’” upon which
the Randolph holding was based.”61
Conversely, the dissent in Fernandez began its analysis from the viewpoint that
the warrant clause controls, and that warrantless searches are “per se unreasonable.”62
Justice Ginsburg refuted the majority’s position that Randolph did not apply to
Fernandez, and instead argued that a broad reading of Randolph was most correct.63 The
dissent distinguished Randolph and Fernandez from previous case law based on the fact
that there was a physically present, objecting occupant in those two cases.64 Justice
Ginsburg also provided a straightforward solution to the majority’s “plethora of practical
problems” complaint, and recommended that police simply obtain a warrant.65 The
dissent also added that the “ease and speed” with which warrants can be obtained today
require the Court to be even more vigilant in safeguarding the warrant requirement.66
Fernandez v. California is a significant case because it extends the trend of
reasonableness clause-based analysis and expands police power. 67 The Fernandez
decision has effectively diminished Randolph to the position of a very narrow exception,
one that can only be satisfied if the occupant is present, and remains present, when the
police ask for consent. 68
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Most significantly, the Fernandez decision may have
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inadvertently granted police the authority to arrest and remove objectors, in order to gain
consent from other occupants.69
IV. Returning to Warrant Clause-Based Analysis and Redefining Consent
The main issue addressed in Fernandez was whether or not Randolph should be
extended to situations where a defendant has objected, but is no longer present when
police obtain consent from another occupant.70 Some Federal and State Courts have
recently decided cases with similar fact patterns, however their interpretations of
Randolph have varied.71 Courts that took a narrow view of Randolph72 held that physical
presence was determinative, and lack of physical presence amounted to a waiver of the
right to object.73 However, courts that took a broader view of Randolph74 held that once
an objection was registered, that objection did not lose force merely because the
defendant was no longer present when police again sought consent.75 While these two
opposing views fall under the umbrella of reasonableness clause analysis, they are not the
only views that exist.
A third view, discussed by Justice Ginsburg in Fernandez,76 is based on warrant
clause analysis, and requires police to obtain a warrant when there are no exigent
circumstances. 77 Returning to warrant clause-based analysis 78 would not necessarily
reverse precedent, but it would deviate from precedent in terms of reasoning.
As
previously discussed, older case law states that warrantless searches in general are
violative of Fourth Amendment rights; however, there are a few exceptions to the warrant
requirement.79 One exception is for “exigent circumstances.”
Examples of exigent
circumstances include: when injury is imminent or emergency aid is needed,80 when a
suspect flees, when the area to be searched is moveable (such as a car), or when there is a
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threat of destruction of evidence.81 Another exception to the warrant requirement is for a
consent search.82 The consent search exception is “one ‘jealously and carefully drawn’
exception,”83 that “recognizes the validity of searches” where “the voluntary consent of
an individual possessing authority” has been given.84
A. Redefining Consent
This casenote argues that the consent search exception should be limited to those
instances where unambiguous consent has been given. The term “unambiguous” requires
that there be no objection by any occupant, prior to the consent from another occupant. If
a Court were to find that no objection was registered prior to consent being given, the
consent would then qualify as unambiguous, and the search would be valid. But, if
unambiguous consent was not given, then courts would default to the warrant
requirement.
A brief analysis of precedent reveals that the holdings in Schneckloth, Matlock,
Rodriguez, and Randolph would likely not be disturbed under this new definition of
consent, and Fourth Amendment rights would be better preserved. Shneckloth would
likely have the same result because the Court there found that voluntary consent was
given, and because there were no objections, consent would be considered
unambiguous.85 Similarly, Matlock would not have to be overturned to accommodate this
definition of consent because the defendant in Matlock did not object to the search.86 One
could argue that the defendant in Matlock would have objected if given the opportunity,
however this point is mooted by the Court’s holding in Randolph that “the potential
objector, nearby but not invited to take part in the threshold colloquy, loses out.”87 The
Rodriguez decision would also remain intact by the adoption of this definition of consent
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because Rodriguez turned on the reasonableness of the officers’ belief that Fischer had
the authority to consent.88 Because the defendant in Rodriguez did not object to the
search, the consent given was clearly unambiguous; and again, Randolph would
neutralize any dispute regarding the validity of Fischer’s consent due to the defendant’s
inability to object.89
However, application of the requirement that consent be unambiguous changes
the outcome of Fernandez v. California. Under the additional consent requirement, the
officers’ search of the apartment that occurred after they arrested and removed Fernandez
would not be valid, because Fernandez was physically present when police first appeared,
and unequivocally objected to the search of his apartment.90 Therefore, because consent
was not unambiguous, the police would have had to secure a warrant.
B. Possible Objections
Opponents of warrant clause-based analysis argue that the warrant requirement is
inefficient91 and interferes with “legitimate law enforcement strategies.”92 This argument
is not without merit, however it is overstated. Admittedly, getting a warrant may be
somewhat inconvenient for police, but inefficiency concerns alone are never sufficient to
justify a warrantless search.93 Furthermore, with today’s technology, getting warrants has
never been easier.94 Because of technological developments, it is imperative that the
Court vigilantly resist the “dilution of the warrant requirement.”95
Opponents would also likely criticize the argument that the once an occupant
makes an objection, his objection should be valid for an indefinite period of time.96 But,
concerns regarding how long an objection is valid for are easily resolved: all police have
to do is obtain a warrant in order to override the occupant’s objection.97 Simply stated, if
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the police were to perceive an objection by one occupant prior to receiving consent by
another, regardless of the objector’s presence or non-presence at the exact moment
consent was actually given, the police would need to seek a warrant in order to override
the objection.98 This requirement would be beneficial to the extent that it provides a
bright-line rule for cases like Fernandez v. California and United States v. Murphy,
where the defendants were unable to continually object because they had been arrested.99
Opponents would also likely argue that honoring the objection of one occupant
takes away the rights of the consenting occupant to have the police do a protective search
of the premises. 100 However, as Justice Ginsburg points out, if there are exigent
circumstances, of course it is permissible for police to enter.101 But short of exigent
circumstances, there is no a valid excuse to infringe on a person’s Fourth Amendment
rights.102
C. Policy Implications
In order to best secure the rights guaranteed to all under the Fourth Amendment,
the Court must begin its analysis from the traditional perspective that all warrantless
searches are “per se unreasonable.”103 To do otherwise incentivizes and rewards police
behavior that infringes on Fourth Amendment rights. Police are essentially rewarded if
they conduct warrantless searches because such searches are often unrestricted in
duration and scope.104 However, if neutral magistrates issue warrants, citizens’ rights are
better protected because: (1) the magistrate may decide not to issue a warrant because
there is no probable to cause; or (2) if the magistrate does issue a warrant, that warrant
will be limited in scope and will “particularly describ[e] the place to be searched, and the
persons or things to be seized.”105 As Justice Douglas stated in his dissent in Matlock,
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“[i]t is inconceivable that a search conducted without a warrant can give more authority
than a search conducted with a warrant.”106 If the Court continues its trend of broadening
the definition of consent searches and allowing further exceptions to the warrant
requirement, this will certainly happen.
V. Conclusion
As a result of the Court’s holding in Fernandez, the Randolph decision has been
greatly diminished. 107 If the Court continues its trend of relying on the reasonableness
clause, we will likely see a further erosion of our Fourth Amendment rights. As Justice
Douglas wrote, “[p]ower is a heady thing; and history shows that the police acting on
their own cannot be trusted.”108 Because of this reality, it is imperative that the Court
return to a warrant clause-based analysis in order to best preserve our Fourth Amendment
rights.
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1
David E. Steinberg, Restoring The Fourth Amendment: The Original Understanding
Revisited, 33:1 HASTINGS CONST. L.Q. 47, 47 (2005).
2
U.S. CONST. amend. IV.
3
Fernandez v. California, 571 U.S. ___, ___ (2014) (slip op., at 5) (Ginsburg, J.,
dissenting) (citing Terry v. Ohio, 392 U.S. 1, 20 (1968).
4
Schneckloth v. Bustamonte, 412. U.S. 218, 219 (1973) (citing Katz v. United States,
389 U.S. 347, 357 (1967); Illinois v. Rodriguez, 497 U.S. 177, 190 (1990) (Marshall, J.,
dissenting) (citing Mincey v. Arizona, 437 U.S. 385, 390 (1978); Skinner v. Ry. Labor
Execs.’ Assn., 489 U.S. 602 (1989) (“The baseline for the reasonableness of a search or
seizure in the home is the presence of a warrant.”)).
5
See Fernandez, 571 U.S., at ___ (slip op., at 5) (quoting Brigham City v. Stuart, 547
U.S. 398, 403 (2006) (“the ultimate touchstone of the Fourth Amendment is
‘reasonableness’”)).
6
United States v. Matlock, 415 U.S. 164 (1974).
7
Schneckloth, 412 U.S. at 248-49.
8
Id.
9
Matlock, 415 U.S. at 170.
10
Rodriguez, 497 U.S. at 179 (citing Matlock, 415 U.S. at 177 n.14).
11
Rodriguez, 497 U.S. at 179 (discussing “whether a warrantless entry is valid when
based upon the consent of a third party whom the police, at the time of the entry,
reasonably believe to possess the common authority over the premises, but who in fact
does not do so”).
12
!
Fernandez v. California, 571 U.S. ___, ___ (2014) (slip op., at 1).
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13
Georgia v. Randolph, 547 U.S. 103, 122-23 (2006).
14
Fernandez, 571 U.S., at ___ (slip op., at 1).
15
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). See, e.g., Matlock, 415 U.S. at
183-85 (Douglas, J., dissenting) (citing Johnson v. United States, 333 U.S. 10, 13-15
(1948)).
16
Fernandez, 571 U.S., at ___ (slip op., at 1) (citing Brigham City v. Stuart, 547 U.S.
398, 403 (2006) (discussing that reasonableness is the “ultimate touchstone” of the
Fourth Amendment)).
17
See Fernandez, 571 U.S., at ___ (slip op., at 1) (Ginsburg, J., dissenting) (citing
Mincey v. Arizona, 437 U.S. 385, 390 (1978) (holding that warrantless searches are “per
se unreasonable”)).
18
Matlock, 415 U.S. at 183-87 (Douglas, J., dissenting) (discussing Johnson v. United
States, Trupiano v. United States, McDonald v. United States, and Jones v. United
States).
19
Id. at 183-85 (citing Johnson v. United States, 333 U.S. 10, 13-15 (1948)).
20
Id. at 184 (citing Johnson, 333 U.S. at 15 n.2) (explaining that “exceptional
circumstances” include a fleeing suspect or risk of destruction of evidence).
21
Id. at 183-85 (citing Johnson, 333 U.S. at 13-15).
22
Id. at 183-85 (citing McDonald v. United States, 335 U.S. 451, 455-56 (1948)).
23
Id. at 183.
24
Id. at 185 (citing Trupiano v. United States, 334 U.S. 699, 705-07 (1948)).
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25
Fernandez v. California, 571 U.S. ___, ___ (2014) (slip op., at 9) (Ginsburg, J.,
dissenting) (quoting Georgia v. Randolph, 547 U.S. 103, 115, n.5 (2006) (“A generalized
interest in law enforcement cannot, without more, justify a warrantless search.”)).
26
Matlock, 415 U.S. at 185 (citing Trupiano, 334 U.S. at 706-07).
27
Id. at 186 (citing McDonald, 335 U.S. at 455-56).
28
Id.
29
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
30
Id.
31
Id. (citing Katz v. United States, 389 U.S. 347, 357 (1967)).
32
Id. (citing Davis v. United States, 328 U.S. 582, 593-94).
33
Id. at 248-49.
34
United States v. Matlock, 415 U.S. 164, 183 (1974) (Douglas, J., dissenting) (“Up to
now, a police officer had a duty to secure a warrant when he had the opportunity to do so,
even if substantial probable cause existed to justify a search.”).
35
Id. at 166 (majority opinion).
36
Id. at 170.
37
Id. at 171.
38
Illinois v. Rodriguez, 497 U.S. 177, 179 (1990) (citing Matlock, 415 U.S. at 177 n.14).
39
Id.
40
Id. at 180.
41
Id. at 177; Matlock, 415 U.S. at 171 n.7 (stating that common authority “rests on
mutual use of the property by persons generally having joint access or control for most
purposes”).
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42
Rodriguez, 497 U.S. at 177.
43
Georgia v. Randolph, 547 U.S. 103, 103 (2006).
44
Id. at 107.
45
Id. at 113.
46
Id. at 106.
47
Fernandez v. California, 571 U.S. ___, ___ (2014) (slip op., at 1).
48
Id. at ___ (slip op., at 6) (Ginsburg, J., dissenting).
49
Id. at ___ (slip op., at 3-4) (majority opinion).
50
Id. at ___ (slip op., at 2).
51
Id.
52
Id. at ___ (slip op., at 3).
53
Id.
54
Id.
55
Id.
56
See Id. (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (“the ultimate
touchstone of the Fourth Amendment is ‘reasonableness’”)).
57
Id. at ___ (slip op., at 9-14).
58
Id. at ___ (slip op., at 10).
59
Id. (quoting Georgia v. Randolph, 547 U.S. 103, 122-23 (2006) (holding that “a
physically present inhabitant’s express refusal of consent to a police search of his home is
dispositive as to him, regardless of the consent of a fellow occupant”)) (emphasis added).
60
Id. at ___ (slip op., at 12-13) (discussing issues regarding duration of objection and
“common authority”).
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61
Id. at ___ (slip op., at 11) (discussing that social norms and customs influenced the
Court’s decision in Randolph, but those same considerations are not present in
Fernandez).
62
Id. at ___ (slip op., at 1) (Ginsburg, J., dissenting) (quoting Mincey v. Arizona, 437
U.S. 385, 390 (1978)).
63
Id. at ___ (slip op., at 2-3).
64
Id. at ___ (slip op., at 7 n.3).
65
Id. at ___ (slip op., at 5).
66
Id. at ___ (slip op., at 8).
67
Transcript of Oral Argument at 17, Fernandez v. California, 571 U.S. ___ (2014) (No.
12-7822).
68
Fernandez, 571 U.S., at ___ (slip op., at 6) (Ginsburg, J., dissenting).
69
Transcript of Oral Argument at 16-17, Fernandez v. California, 571 U.S. ____ (2014)
(No. 12-7822); but see Georgia v. Randolph, 547 U.S. 103, 121 (2006) (holding that
removing an occupant is okay “[s]o long as there is no evidence that the police have
removed the potentially objecting tenant from the entrance for the sake of avoiding a
possible objection”).
70
Fernandez, 571 U.S., at ___ (slip op., at 1).
71
People v. Fernandez, 208 Cal. App. 4th 100, 116-21 (Cal. Ct. App. 2012).
72
Daniel E. Pulliam, Post-Georgia v. Randolph: An Opportunity to Rethink the
Reasonableness of Third-Party Consent Searches Under the Fourth Amendment, 43 IND.
L. REV. 237, 253-54 (2009).
73
!
Fernandez, 208 Cal. App. 4th at 117-21.
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74
Pulliam, supra note 72, at 252-53.
75
Fernandez, 208 Cal. App. 4th at 116-21 (citing United States v. Murphy 516 F.3d
1117, 1119-20 (2008)).
76
Fernandez v. California, 571 U.S. ___, ___ (2014) (slip op., at 5-7) (Ginsburg, J.,
dissenting).
77
People v. Fernandez, 208 Cal. App. 4th at 116-21 (citing Murphy, 516 F.3d at 1124-
25).
78
See Fernandez, 571 U.S., at ___ (slip op., at 6) (Ginsburg, J., dissenting) (stating
“today’s decision overlooks the warrant requirement’s venerable role as the ‘bulwark of
Fourth Amendment protection’”).
79
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (citing Katz v. United States,
389 U.S. 347, 357 (1967)).
80
Fernandez, 571 U.S., at ___ (slip op., at 10) (Ginsburg, J., dissenting) (citing Brigham
City v. Stuart, 547 U. S. 398, 403 (2006).
81
United States v. Matlock, 415 U.S. 164, 184 n.2 (1974) (Douglas, J., dissenting) (citing
Johnson v. United States, 333 U.S. 10, 15 (1948)).
82
Georgia v. Randolph, 547 U.S. 103, 109 (2006).
83
Id. (citing Jones v. United States, 357 U.S. 493, 499 (1958)).
84
Id. (citing Illinois v. Rodriguez, 497 U.S. 177, 181 (2006)).
85
Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973).
86
Matlock, 415 U.S. at 166.
87
Randolph, 547 U.S. at 121.
88
Rodriguez, 497 U.S. at 177.
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89
Randolph, 547 U.S. at 121 (holding that “the potential objector, nearby but not invited
to take part in the threshold colloquy, loses out”).
90
Fernandez v. California, 571 U.S. ___, ___ (2014) (slip op., at 3) (quoting Defendant,
“You don’t have any right to come in here. I know my rights.”).
91
See Id. at ___ (slip op., at 14) (stating that “[e]ven with modern technological advances,
the warrant procedure imposes burdens on the officers who wish to search”).
92
Id. at ___ (slip op., at 14) (majority opinion) (citing Kentucky v. King, 563 U.S. ___,
___ (2011) (slip op., at 13).
93
Id. at ___, (slip op., at 8) (Ginsburg, J., dissenting) (citing Randolph, 547 U.S. at 115
(holding that “[a] generalized interest in expedient law enforcement cannot, without
more, justify a warrantless search”)).
94
Id. at ___ (slip op., at 8) (Ginsburg, J., dissenting).
95
Id.
96
Id. at ___ (slip op., at13) (majority opinion); see also Transcript of Oral Argument at
10, Fernandez v. California, 571 U.S. ___ (2014) (No. 12-7822).
97
Fernandez, 571 U.S., at ___ (slip op., at 5) (Ginsburg, J., dissenting).
98
Id.
99
Id. at ___ (slip op., at 3) (majority opinion); People v. Fernandez, 208 Cal. App. 4th
100, 117-21 (Cal. Ct. App. 2012) (citing United States v. Murphy 516 F.3d 1117, 111920 (2008)).
100
Fernandez, 571 U.S., at _____ (slip op., at 15).
101
Id. at ___ (slip op., at 10) (Ginsburg, J., dissenting).
102
Id.
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103
Id. at ___ (slip op., at 1) (citing Mincey v. Arizona, 437 U.S. 385, 390 (1978)).
104
See United States v. Matlock, 415 U.S. 164, 187 (1974) (Douglas, J., dissenting)
(stating that “[g]overnment agents are now free to rummage about the house,
unconstrained by anything except there own desires”).
105
U.S. CONST. amend. IV.
106
Matlock, 415 U.S. at 187 (1974) (Douglas, J., dissenting).
107
Fernandez, 571 U.S., at ___ (slip op., at 6) (Ginsburg, J., dissenting).
108
Matlock, 415 U.S. at 186 (Douglas, J., dissenting) (citing McDonald v. United States,
335 U.S. 451, 455-56 (1948)).
I hereby certify that I have completed this submission in accordance with the
Competition rules and in accordance with the collaboration and academic integrity
requirements of the University of Miami School of Law Honor Code. 270813
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