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By Jay Shapiro
This Term, the Court will have the opportunity to state whether its rule in Georgia v. Randolph is restricted to the very specific facts of that case or if there is a broader application of that holding. In Fernandez v. California, the Court examines a situation where the police were first denied consent to search by one person, the suspect, and then later granted consent. In this analysis, Jay Shapiro, a partner in the New York office of White and Williams LLP, writes: “When police officers in the field are given the choice between conducting a warrantless search of a residence based upon consent or going through the process of obtaining a search warrant, the consent search is clearly the quicker, more efficient option. However, often a consent search presents a variety of issues, including: the authority of the person providing the consent; the extent of the consent; and whether the consent was given voluntarily. Additionally, there is a particular set of circumstances that present special problems in evaluating whether the police can seek a residence based upon consent. When there are more than one resident present at the location to be searched and they are not united in whether consent is granted. In Georgia v. Randolph, 547 U.S. 103 (2006), the Supreme Court held that ‘a physically present co-occupant's stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him.’ “This Term, the Court will have the opportunity to state whether its rule in Randolph is restricted to the very specific facts of that case or if there is a broader application of that holding. In Fernandez v. California, the Court examines a situation where the police were first denied consent to search by one person, the suspect, and then later granted consent. The critical distinction between Fernandez and Randolph is that in the case now before the Court, the person who had refused consent is no longer at the premises when permission to search was granted.” Access the full version of the commentary with your lexis.com ID. Additional fees may be incurred. (Approx. 4 pages.)
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