The fallout continues following a recent Supreme Court case which seemingly weakens the Fourth Amendment to the U.S. Constitution.
Now, a local high profile defense attorney is weighing in the Fernandez v. California case as is Montgomery County State’s Attorney John McCarthy.
Criminal defense attorney Rene Sandler said the problem with the Supreme Court decision in Fernandez v. California is twofold: it frustrates a person’s Fourth Amendment rights and is prone to abuse by the police.
“Should it be enough for one person to consent for another?” Sandler said. “In my analysis the answer is no. [This decision] empowers the police to overstep and unfortunately disregard the probable cause requirements for a search warrant.”
In a broader context, Sandler said it’s important that we understand what a consent search really is.
“It is confusing and misleading for an individual to make an informed decision when confronted by law enforcement,” Sandler said. “The reality is when a citizen is confronted by law enforcement in a uniform, with a badge and with a gun, an overwhelming number of people will comply without understanding or appreciating that they have the right to say no. When a person feels they have no choice but to consent, that consent in involuntary.”
Sandler said the decision will affect not only Montgomery County, but the entire country by allowing the police to circumvent Fourth Amendment rights.
“The people who will unfortunately be subject to targeting would be those that the police believe may have underage alcohol parties, [or] those task forces that believe there are drugs being used in a person’s home,” Sandler said. “Or other hunch-type beliefs by a police officer that lacks the kind of probable cause necessary for a search warrant.”
Sandler said the desire to save time and money should not be given too much weight.
“Efficiency and making it easy for law enforcement should never trump a person’s individual Fourth Amendment rights,” Sandler said.
McCarthy said he could see potential situations where police officers may proceed with a search without obtaining a warrant. But in Montgomery County, he said, officers tend to stick to the rule rather than exceptions.
“In the majority of cases, if the police do call us, I still hold up the possibility that we would err on the side of the caution and get a warrant,” he said.
McCarthy said the ruling is not revolutionary.
“Fernandez merely restates that an occupant’s consent is lawful basis for a search,” he said. “Practically speaking there might be fewer calls for warrants but overall it’s not a big change.”
McCarthy said most prosecutors tend to err on the side of caution and seek warrants even when they’re not entirely necessary.
“Your audience may differ from judge to judge,” McCarthy said. “You want to make it easy for them so that there’s absolutely no question that the evidence you obtained is usable by the state by overbuilding the lawful basis of seizure.”
McCarthy said though his office doesn’t get a call for every situation the police encounter, they grill the officers whenever they do get one.
“We would question the officers and if there’s any hesitance, get a warrant,” he said. “You’ve got to ask questions.”
Assistant Chief Russ Hamill said the ruling will have minimal effect on how the Montgomery County Police operates.
“We tend towards obtaining search warrants in these cases if possible,” Hamill said. “These situations happen, but it’s a very specific fact pattern. It’s hard to envision that this will have any major effect on how we conduct our operations.”
Hamill said though warrants are their normal route, the Montgomery County Police do exercise exceptions to the warrant requirement, including consent situations.
“If it’s legal to do so, our officers will explore that option,” Hamill said. “We do use consent situations, but the search warrant is our normal route.”
Hamill said if a situation similar to that of Fernandez v. California were to arise in Montgomery County, sergeants on the scene would be the ones to make the call on whether or not to get a warrant.