Alexander A. Sanchez

May 5, 2014

Professor Randy Dryer

Searches in Homes: Warrants, Consent, and Presence

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The United States of America has been internationally recognized as a vast and

diverse country, a nation filled with millions of people from different backgrounds, and a

government that abides by a written constitution, has instituted checks and balances, and

provides protections to those people under its jurisdiction. It is a nation that prides itself

on the civil liberties its citizens possess. In the early stages of America’s development

there were hundreds of thousands of people who migrated to this country with the hopes

of finding the “land of opportunity.” The first people to travel overseas with their families

were immigrants seeking a better life in America. Many fled from religious persecution,

but many also came seeking safer living environments. No longer would people feel

victimized in their own homes unjustly. After all, the newly established constitution

provided citizens with rights, such as the Fourth Amendment, which is supposed to

protect people from unreasonable searches of their homes.

Most people expect some degree of privacy in their homes, this reasonable

expectation of privacy can be considered a justifiable one because society as a whole sees

this expectation as legitimate. (Katz v. United States, 389 U.S. 347, 357 (1967). For many

individuals, a home represents a place of comfort, security, as well as an area that is

shared communally with their loved ones. An individual’s home is a place that requires

much more protection towards privacy, because the components and factors involved in

the home are much more sensitive, this is why the reasonable expectation of privacy rule

was created. (Katz v. United States, 389 U.S. 347, 357 (1967). It is exactly for this reason

that our founding fathers realized the necessity of establishing the right rules of conduct

for searching a home, as well as the rights individuals have in their homes. At the

constitutional convention these rights were established for various reasons, but most

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importantly to insure domestic tranquility, establish justice, as well as the promotion of

general warfare for the people. (U.S. Constitution) When it comes to the privacy of an

individual’s home, the founding fathers were quick to note the fourth amendment. In the

U.S. Constitution, the Fourth Amendment reads as follows:

“The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable cause, supported by Oath

or affirmation, and particularly describing the place to be searched, and

the persons or things to be seized.”Fourth Amendment, U.S. Constitution

As we can see the Fourth Amendment gives individuals the right to secure themselves

from unreasonable searches in their homes, and generally requires law enforcement to

attain a warrant via the approval of a magistrate. (Utah State Courts) Now what happens

when citizens don’t meet eye to eye with government officials? Throughout the past sixty

years there have been numerous cases regarding the issue of searches in homes.

The purpose of this paper is to highlight some of the issues regarding warrantless

searches as well as consent in searches that have been discussed in past Utah and U.S.

Supreme Court cases. These issues are highly debatable and a thorough discussion of

searches in homes is necessary. When should a person be able to reject the requests of

law enforcement? What are the risks involved of not being present? Who can give

provide consent to police officers wanting to enter a home? These questions will all be

discussed. There are many people who are unaware of what they can and cannot do to

protect themselves and the privacy of their homes. Unfortunately, the system isn’t always

perfect and citizens don’t always understand what rights, privileges, and protections they

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have here in the United States. Many of our rights and duties are spelled out in the

constitution and the Bill of Rights, these provisions are general guidelines for all citizens

to follow and abide by in their public lives, but courts must interpret and apply these

general guidelines to specific factual circumstances. For example, the constitution does

not mention anything about consent or physical presence under the Fourth Amendment

protections. Most importantly, can an individual be searched without a search warrant?

The constitution is bit vague when it comes to these topics and hence a review of court

decisions is necessary.

Understanding Search Warrants

The search of homes by law enforcement typically requires a search warrant.

Consequently, it is important people understand what a warrant is, the process of

obtaining a warrant, as well as the limitations of what law enforcement may utilize the

warrant for. According to the legal website legalzoom, a warrant is a legal order signed

by a magistrate authorizing law enforcement to search a “specific location and seize

specific materials from that location at a specified time.” If the evidence seized does not

meet the legal parameters assigned then the evidence must be suppressed at a court of

law. (Fifth Amendment, U.S. Constitution) In addition, if law enforcement illegally enters

a home and seizes evidence, this evidence may be suppressed due to an illegal entry.

(State v. Earl, 92 P.3d 167, 175 (Utah App. 2004). This means that police officers can

only search where and for what the warrant specifies. In order to obtain search warrant,

police officers must determine probable cause to add enough basis to their request, they

then must obtain “written permission from a court of law” to lawfully search a person’s

home and seize any possible evidence regarding the crime. (Utah State Courts)

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It’s important that citizens have an understanding of the functionality of warrants.

Many times individuals are put under pressure by law enforcement and feel they have no

other alternative, but to consent to a search and/or waive their Fourth Amendment rights.

There are many cracks that fall under the spectrum, which we must also consider.

According to Annie Taliaferro, a local criminal defense attorney here in Salt Lake City,

Utah, there are a few circumstances where a warrantless search and seizure may be

upheld, despite the Fourth Amendment’s warrant requirement. These circumstances

include:

“Consent searches; searches and seizures made in hot pursuit; searches

and seizures of contraband in areas lawfully accessible to the public;

seizure of evidence in plain view after lawful intrusion; and searches and

seizures incident to arrest based on probable cause under exigent

circumstances.” See Washington v. Chrisman, 455 U.S. 1 (1982), Warden

v. Hayden, 387 U.S. 294 (1967), State v. Shreve, 667 P.2d 590 (Utah

1983), State v. Romero, 660 P.2d 715 (Utah 1983), Chimel v. California,

395 U.S. 752 (1969).

We must also consider that law enforcement have at times misled residents into

feeling pressured to provide consent when they believed there was no other alternative

and were unaware of their right to refuse consent.

Evaluating Cases Regarding Consent to Search a Home

The following cases involve both U.S. Supreme court cases as well as few local

Utah in state cases that have determined and discussed consent and presence in home

searches. When it comes to searches in homes there have been many incidents where

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misinformed citizens and confusion has led to a violation of a person’s privacy in their

home. In order to understand consent, we must define consent to fully understand what

this term encompasses. Consent to a search is when a person allows or permits police

officers to enter their home, waiving their Fourth Amendment rights. (Besselman, pg.1)

It’s also important to acknowledge Utah’s current state law regarding warrantless

searches. The only time law enforcement may search a home without a warrant is when a

“warrantless search of a residence is constitutionally permissible where probable cause

and exigent circumstances are proven” State v. Yoder, 935 P.2d 534, 540 (Utah App.

1997). It is the states burden to prove that probable cause and exigent circumstances

existed. When a private residence is searched this burden becomes especially heavy. If a

person provides consent to the police, then law enforcement may search their home

without a warrant, but a person may not be coerced into giving consent, “by explicit or

implicit means, by implied threat or covert force” Schneckloth v. Bustamonte, 412 US

218 (1973). This type of deceit or coercion would be an unjustified search upon police

and an intrusion upon a person’s home. Unjustifiable searches in homes have occurred.

One example is Ruiz v. State, a Florida drug case in which the court decided that the

testimony police officers had given in court was highly suspicious and most likely false.

(Kerr, pg. 1) This case is infamously recognized as the Volokh Conspiracy. The appellate

judges “found the officers’ testimony hard to believe”, their “testimony was not so

inconceivable that the trial judges factual findings were clearly erroneous and could be

overturned”. (Kerr, pg. 1) This case brought up the not so farfetched idea of law

enforcement committing perjury in their testimonies. In this case the court emphasized

the need for “trial judges to scrutinize police testimony to ensure the vitality of Fourth

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Amendment rights”. (Kerr, pg. 1) It’s important to realize the frequency of these types of

cases and to be aware of them.

There are many cases regarding consent in searches and seizures, but the

following cases will attempt to only highlight those particular cases where searches in

homes occurred. One of the first cases dealing with consent in the U.S. was Chapman v.

U.S., 365 U.S. 610 (1961). In Chapman, the court held that a landlord cannot provide

consent to law enforcement so that they may enter a tenant’s home without a warrant and

search it. In Stoner v. California, 376 US 483 (1964), the ruling was that a hotel guest

must be treated like a tenant. An employee of the hotel “cannot give consent to search a

room while the guest is occupying it.” In U.S. v. Matlock, 415 U.S. 164 (1974), the court

held that if there were “joint authority over the premises, a third-party can consent to a

search for evidence against the defendant. The third party must have authority over the

particular area.”(Case Law 4 Cops) Sixteen years later in Illinois v. Rodriguez, 497 U.S.

177 (1990), the court ruled that as long as law enforcement reasonably, but accidentally

think a person is authorized to give consent then this would allow them to proceed, and

the evidence obtained is admissible in court. Moving forward into the twenty-first

century in Georgia v. Randolph, 547 U.S. 103 (2006), the Court decided that a tenant of a

residence cannot provide law enforcement with consent to a search of the home for

evidence if a present co-occupant objects. The objecting occupant “must be present” at

the time of the search in order to object or the objector waives his rights. This rule applies

to the “permissibility of police to enter to search for evidence.” Finally, in Fernandez v.

California, 134 S. Ct. 1126, which was decided on February 25, 2014, the Supreme Court

deliberated over a complicated matter involving law enforcement and a robbery suspect.

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The police located the victim who had been attacked and robbed; the victim gave them a

description of the perpetrators appearance and a vigilante clued the officers as to where

Fernandez may be located. Law enforcement entered the apartment complex and shortly

after heard sounds of screaming and fighting within the building. The girlfriend of

Fernandez, Roxanne Rojas, answered the door. She appeared to have blood on her hand

and shirt, as well as bruising on her nose. The officers interrogated her and then asked her

if they could enter the apartment to conduct a “protective sweep” of the premises. A

protective sweep is a “quick and limited search of premises, incident to an arrest and

conducted to protect the safety of police officers or others.”(Maryland v. Buie, 494 U.S.

325, 327 (1990). Before the officers could conduct their “protective sweep” the appellant

faced the officers and stated, “you don’t have any right to come in here. I know my

rights.” The petitioner clearly objected to the search of the home. Nonetheless, police

officers physically removed him from his residence and arrested him for domestic

violence. After taking Fernandez to the police station, law enforcement returned to

Fernandez’s home and asked Rojas for consent of the residence. The girlfriend of

Fernandez consented to the search. Evidence was seized and Fernandez moved to

suppress the evidence claiming he had clearly objected to the search and was physically

present. The court ruled that because Fernandez was legally arrested and taken from the

apartment, his previous objection no longer stood ground or had any control whatsoever.

This allowed his girlfriend to give consent, because she was a co-tenant and was

physically present when Fernandez was not. The ambiguity falls with the girlfriend,

Roxanne Rojas, and whether or not she gave consent voluntarily or was unwillingly

forced to give consent. In Walter Fernandez’s brief, it explains that the testimony Rojas

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gave in court conflicts with the legality of the search. According Roxanne Rojas

testimony, she explained that Detective Clark took aside her son to interrogate him, while

not allowing Rojas to be at his side. Rojas testified that Officer Cirrito “refused her

request to be present with her son “and “threatened to take her children away.”Rojas also

testified that she did not want to “sign the consent form”, but that she felt the “officers

pretty much pressured her into consenting to the search.”Officer Cirrito denies Rojas’s

allegations and stated that he never threatened her. This information leads us to suspect if

she was coerced, put under duress, or manipulated to give consent. After all police don’t

have to warn owners that they can refuse to give consent.

When it comes to warrantless searches, the laws pertaining to this topic are quite

entangled and technical, and as we saw in Fernandez v California, the law is quite

unpredictable. In this case, the ruling established that presence is needed to establish

consent; If not present a co-tenant may give consent. The court considered this case as a

special situation, an emergency or expedited circumstance where police could bypass the

usual requirement of a search warrant.

Must Citizens be advised of their Right to Refuse Consent?

These cases regarding consent to searches in homes are prominent rulings that

have shaped the way millions of citizens are treated during home searches. The decisions

have laid out what law enforcement may permissibly do without a warrant and what they

cannot do unless they obtain a warrant from a judge. Unfortunately, the court in all of

these cases has not addressed the issue of whether the Fourth Amendment requires police

officers to warn residents of their consent rights. This means that police officers don’t

have to tell tenants that they may refuse consent to a search. Many people don’t

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completely understand their rights fully and when coercion or confusion occurs the rights

of citizens are violated and the privacy from their homes is stripped. Often time’s police

officers intrude upon an individual’s home. This is a serious concern since both society

and people as mentioned earlier choose to live in a society that is reasonably safe as well

as free from scrutiny or surveillance from the government. Katz v. United States, 389

U.S. 347, 357 (1967). Unfortunately residents aren’t always treated fairly and their rights

are often undermined.

A “Miranda-like” Warning is needed when requesting to Search a Home

There is considerable ambiguity left over when it comes to physical presence and

consent in the searches of homes. The laws pertaining to searches in homes must be re-

evaluated and defined more rigidly so that there is a common consensus and people

understand their rights. In my opinion, there should be policy improvements when it

comes to informing citizens as to what they should expect during home searches. Citizens

should be given a warning, similar to the Miranda warning, when being searched at their

home. Currently, our system is not set up to warn anybody when searching their homes.

Police officers do not have to warn people that they have the right to refuse consent to the

search. In Miranda v. Arizona, 384 U.S. 436 (1966), the court decided that when a

suspect is in police custody, the individual must be informed of their Miranda rights

before being interrogated, and that the defendant must “knowingly” understand their

rights and “voluntarily” must waive their rights before law enforcement may proceed

with questioning. If we question why a Miranda warning is given, we can easily see that

it’s meant to warn people from unknowingly waiving their constitutional rights when

being questioned. This is highly important and fair for citizens since these are the

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fundamental rights they possess. We now must highlight the issue of consent under the

Fourth Amendments constitutional protection, because people too often waive their rights

due to being unaware. If we compare the Fourth Amendment to the Sixth Amendment,

both are very important, but the Sixth Amendment is judicially protected to guard the

rights of people. Why is the Fourth Amendment not treated the same? The Fourth

Amendment should be treated the exact same way, because it is dealing with the sanctity

of one’s own home.

Police often can come off as intimidating to individuals. Too often this has

occurred throughout history. It is exactly for this very reason that police are required to

give the Miranda warning. The Miranda warning is a constitutional requirement, but it

also helps inform people of their rights. Why are we not doing the same for the rights of

people in their homes? This will allow clarity and less confusion when it comes to the

rights of residents. It’s unjust to not provide this disclosure. Individuals will fall into a

trap of unknowingly waiving their rights and allowing law enforcement to enter into their

home. It’s important that people feel secure and safe in their homes. If they don’t feel

safety in their homes, this will lead to inevitably trusting governmental authorities less

and will create further issues between citizens and law enforcement. As long as people

continue to believe that their Fourth Amendment rights to the privacy of their homes

protect them, they will continue to be misled, uninformed, and stripped from their privacy

in their homes. People need to understand the proper guidelines to providing consent and

establishing physical presence while a search is being acted out. The only way this will

ever be made possible is if a warning is instituted, which would go along the lines of

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informing the individual that they have the right to refuse consent in their own home if

the police officer does not have a warrant.

Conclusion

It makes absolutely no sense that there is no consent warning provided to

individuals when their home is being searched by law enforcement. This type of consent

warning should become a routine police procedure, such as Miranda rights have become,

which informs and warns people of their rights and possible routes to take. A person

should not be allowed to incriminate themselves, by wrongfully giving consent when

they didn’t know they could refuse a search. This is the exact reason the Miranda warning

was created. If a person does not act accordingly in a search they may lose their right of

privacy in their home. A clear warning is necessary when it comes to searches in homes,

so that people may know when their rights are being taken, exploited, or properly

exercised. Fernandez v. California has not clearly defined if a consent warning in these

types of consent cases would be appropriate or necessary. In my opinion it is necessary

and important for people to be reminded of their rights, so that they may know how to

invoke their rights when being searched in their homes.

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References

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m>.

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9. "Utah State Courts - Introduction to Search Warrants." Utah State Courts -

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<http://www.utcourts.gov/courts/just/onlinelearning/Warrants/>.

10. Besselman, John. "Who Can Consent to Search (podcast transcript)?" — Federal

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11. Cooperberg, David. "Supreme Court Makes Big Decision On When Cops Can

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12. Kerr, Orin. "Police Officers Committing Perjury in Testimony about Consent

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May 2014.

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