Los Angeles police search to be reviewed by Supreme Court

WASHINGTON -- A 2009 police search of a Los Angeles gang member’s home will be examined Wednesday by the Supreme Court in a case that could further define Americans’ 4th Amendment protections.

The case of Walter Fernandez vs. California is the latest requiring the court to determine when police may enter and look around a home without a search warrant.

At issue is whether a consent to search provided by one resident of a private home is enough to override an objection from a spouse or roommate, if the objecting party is not present.

The 4th Amendment forbids “unreasonable searches and seizures,” and the court was closely divided in 2006 when it ruled that police violated the rights of a Georgia man when they entered his home and searched inside based on his wife’s consent. Scott Randolph, her husband, had stood in the door and objected.

The estranged couple had been quarreling, but the court said the police had to honor the husband’s objection.

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In the Fernandez case, the California courts ruled that his earlier objections to a search did not have to be honored because he had been taken away and police returned later to search his Los Angeles apartment.

Authorities said the case began at midday on October 12, 2009, when a man cashed a check near the corner of Venice Boulevard and Magnolia Avenue. He was stopped, robbed and stabbed by a man with a bald head and tattoo who said he was a member of the Drifters gang.

The victim called 911 on his cellphone, and two police officers responded. They spotted a man running upstairs to a second-floor apartment, officials said, and after they heard shouting there, they knocked on the door.

A woman holding a baby opened the door. She was bruised and bleeding. When an officer stepped inside, a man angrily called out: “You don’t have any right to be here. I know my rights,” police said

One officer took the man, who had a tattoo on his head, into custody and removed from him from the apartment. The robbery victim later identified Fernandez as the man who robbed him, and he was taken to jail. Then the officers returned and, with the permission of the woman, entered and searched the apartment. They found Drifters gang paraphernalia, a knife and a gun.

Fernandez was convicted of robbery while acting as part of a street gang and of illegal gun possession and was sentenced to 14 years in prison.

He appealed, arguing that the search of his apartment was unconstitutional and citing Georgia vs. Randolph. He lost last year in the California Court of Appeal.

“The calculus shifts when the tenant seeking to deny entry is no longer present,” said Justice Steven Suzukawa in Los Angeles. “We do not read Randolph as vesting the objector with an absolute veto.”

But when an attorney for Fernandez appealed, the U.S. Supreme Court agreed to hear his case. The appeal noted that lower courts are split on this issue.

Stanford law professor Jeffrey Fisher will argue for Fernandez. He says the court should not weaken the 4th Amendment right against home searches. “A person who is removed from his home against his will retains the same privacy interest in his home as when he was present,” he wrote in his brief to the court. He also argues that the Los Angeles police could have secured the apartment and then obtained a search warrant from a magistrate.

Louis Karlin, a deputy state attorney general from Los Angeles, will join with an Obama administration attorney in urging the court to uphold the search as reasonable.

They say police may enter and search when they have the consent of an occupant. Because Fernandez was not there to object, “the police acted reasonably in relying on her [Fernandez’s girlfriend’s] consent to search the premises,” Karlin wrote.

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david.savage@latimes.com

Twitter: @davidgsavage