California robbery case leads Supreme Court to reconsider police search laws

McClatchy Washington BureauMay 20, 2013 

— A tattooed inmate in one of California’s most remote prisons will now get his moment in the Supreme Court sun, along with a shot at clarifying the rules governing certain law enforcement searches.

Beating the legal odds, Los Angeles gang veteran Walter Fernandez succeeded Monday in convincing the court to hear his challenge to an apartment search. Fernandez had objected to the search, but his girlfriend eventually assented after Fernandez was taken into custody. This prompted a constitutional question that has divided lower courts.

“There’s this long-lasting issue, as to what extent a cohabitant can give consent to a search,” Thousand Oaks, Calif.-based defense attorney Gerald P. Peters said in a telephone interview Monday. “This is not a totally unique problem; it’s actually a foreseeable problem.”

In a 2006 case arising from a Georgia drug bust, the Supreme Court ruled invalid a warrantless search of a shared dwelling over the express refusal of consent by an individual who was present. That ruling was based on the Fourth Amendment, which protects individuals against “unreasonable searches and seizures.”

Lower appellate courts have disagreed, though, about how far this rule extends.

The 9th U.S. Circuit Court of Appeals, which covers Western states, ruled in a 2008 case involving an alleged Oregon methamphetamine lab that a co-tenant’s refusal to offer consent remains in effect even after the individual is absent. But in a Missouri child pornography case, the 8th U.S. Circuit Court of Appeals came to the opposite conclusion, reasoning that a wife’s consent sufficed once the resisting husband was gone.

Resolving such circuit splits often motivates the Supreme Court to take up a case, though the odds are always long. The court receives about 8,000 petitions annually and hears only about 75. The odds are stacked even more against petitions like Fernandez’s, designated as in forma pauperis, which are often impoverished prisoners’ cases for which filing fees don’t have to be paid.

During the court’s 2011 term, only seven such cases were heard out of more than 6,000 on the docket.

“I think it’s a good thing,” Peters said of the court’s decision to hear the Fernandez case. “The Supreme Court has been strangely good for criminal defendants in a number of cases, and maybe that will carry forward.”

But another possibility, Peters acknowledged, is that the high court could use the Fernandez case to strike down the 9th Circuit’s defendant-friendly rule, which can impede some police searches.

“The conflict in the state and federal courts is heavily lopsided against (the Fernandez) petition,” California Deputy Attorney General Louis W. Karlin noted in the state’s legal filing.

Peters represents Fernandez, now serving a 14-year sentence on firearms, robbery and domestic abuse charges at California’s High Desert State Prison. The maximum security facility in Lassen County, in the arid northeast corner of the state, is about 550 miles from the neighborhood where Fernandez once joined a street gang called the Drifters.

Though the gang’s identity was tattooed on his back, among other places, Fernandez says he was trying to turn his life around and had moved away from gang involvement following release from prison on earlier, theft-related charges.

“It always was just about . . . me living there, hanging out with people I grew up with,” Fernandez explained at the 2010 trial that led to his most recent convictions.

Fernandez was living with Roxanne Rojas in October 2009 when police investigating a street robbery responded to sounds of fighting from their apartment. At the front door, an agitated Fernandez told police that “you don’t have any right to come in here,” according to subsequent trial testimony. Police recognized one of his scalp tattoos from a description given by the robbery victim, and Fernandez was arrested and taken away.

About an hour later, amid circumstances that remain in dispute, police returned and secured permission from Rojas to search the apartment, in which they found a .20-gauge shotgun, ammunition, a butterfly knife and assorted Drifters gang paraphernalia.

Email:; Twitter: @MichaelDoyle10

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