On October 12, 2009, five officers knocked on the door of a Los Angeles apartment just west of downtown. Roxanne Rojas answered, bloodied and bruised, with a baby in her arms.
The officers were investigating a possible gang-related assault and suspected Rojas’ boyfriend. When police asked her if they could search the apartment, Walter Fernandez – Rojas’ boyfriend and the property’s owner – stepped forward. He refused.
Fernandez was arrested, taken into custody, and police conducted a limited protective sweep of the apartment. An hour after his arrest, two officers returned to the apartment. They separated Rojas from her four-year-old son and questioned both. According to the petitioner’s brief, one officer told Rojas the questioning was “going to determine whether or not we take your kids from you right now.”
After 20-30 minutes of questioning, police handed Rojas a consent-to-search form. As Rojas later explained, “I just wanted it to just end, so I signed it.”
At court, Fernandez moved to suppress the evidence seized in the warrantless search, relying on the Supreme Court’s 2006 ruling in Georgia v. Randolph that a “physically present inhabitant’s express[ed] refusal of a search” bars police, even if the co-occupant consents.
The Court in its decision did not overrule Georgia, but rather narrowed the scope of when the exclusionary rule applied to the co-occupant rule, drawing a fine line between presence and absence at the time of search. The exclusionary rule holds that evidence obtained in violation of an individual’s constitutional rights is inadmissible in court. Established in Weeks v. United States (1911) as a deterrent to police misconduct, it has long been a source of debate.
Sheldon Nahmod
Professor, iit chicago-kent college of law
This hair-splitting over when the exclusionary rule applies echoes similar quibbling in other Fourth Amendment decisions.
For example, in 2012, the Court heard two cases concerning drug-sniffing dogs. The Court unanimously held that a drug-detection dog’s alert sufficed to allow a warrantless search of a vehicle, but, in a separate case, ruled 5-4 that a detection dog at a person’s house required a warrant.
For cases involving police investigation, the Court has not consistently favored either law enforcement or suspects. The Court has, however, consistently declined to expand the breadth of the exclusionary rule, the Fourth Amendment’s primary enforcement mechanism.
In a controversial 2009 decision, the Roberts Court held in Herring v. United States that evidence obtained under a mistakenly issued warrant was admissible in court. Chief Justice John Roberts, in his majority opinion, referred to the exclusionary rule as a “judicially created rule” rather than an individual right, and the benefits of its use “must outweigh the costs.”
The Court also limited the exclusionary rule in the context of the so-called “knock-and-announce” rule. In 1995, a unanimous Court held police must “knock-and-announce” before entering a house, but in 2006, the Roberts Court ruled 5-4 that evidence is admissible at trial, even when police violate the rule. Justice Antonin Scalia, who authored the majority opinion, expressed caution in expanding the exclusionary rule and its “substantial social costs.”
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In his dissent, Justice Stephen Breyer argued that disallowing the exclusionary rule in this case destroyed the strongest legal incentive to comply with the requirement. “The majority’s ‘substantial social costs’ argument is an argument against the Fourth Amendment’s exclusionary principle itself. And it is an argument that this Court, until now, has consistently rejected.”
At the same time, the Court has made clear that there is a line police may not cross.
In United States v. Jones (2012), the Court held that the warrantless use of a GPS tracking device on a car violated the Fourth Amendment. Justice Scalia, who authored the majority opinion, argued that when police placed the device on the car, they physically trespassed.
In a concurring opinion, Justice Samuel Alito instead argued the decision should hinge on an individual’s “reasonable expectation of privacy,” given that technology could one day be used to track an individual’s movements without committing a technical trespass.
While the Court in Jones was portrayed by the media as a champion of privacy rights, it has taken a pedantic approach in other attempts to balance the competing interests of law enforcement and individual privacy. When reviewing police investigation, the Court has not deferred to either side with regularity, but its overfine distinctions of the exclusionary rule reflect steadfastness in limiting when evidence may be excluded upon an unreasonable search and seizure.