In 2014, the Supreme Court decided Fernandez v. California, holding that an individual who objects to a warrantless search but is later lawfully removed from the premises can have his or her objection to the search superseded by a co-tenant. Such act of third-party consent, when a co-tenant who is not the suspect in the crime being investigated gives the police consent to search the home, is one of many setbacks in the long history of the erosion of the Fourth Amendment.
This Article addresses Fernandez and its impact on Fourth Amendment rights. The Article begins by discussing the myth of true consent to searches and how police officers have the appearance of authority, which triggers an ingrained need to comply with search requests. The Author also explores the ability of police to lawfully arrest a co-tenant who is objecting to a search and take him or her off premises to acquire consent from another co-tenant. The Author then calls for the abolition of consent searches altogether, emphasizing the relative ease of obtaining a search warrant—the preferred method to lawfully search a home and a method that has become increasingly convenient due to evolving technology. In the alternative to abolishing consent searches altogether, the Author suggests either: 1) requiring officers to apprise an individual of his or her right to refuse a search; or 2) redefining the word “present” so a suspect who has objected but has been subsequently arrested is still present and, therefore, his or her objection still stands and cannot be overridden by a co-tenant. The Author concludes by warning that without consent search reform, the Fourth Amendment will become nothing but words on a page.