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Name: People v. Fernandez
Case #: B232277
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 08/01/2012
Subsequent History: Cert. granted 5/20/2013: 12-7822

A warrantless search is lawful when the defendant’s cotenant consents to a search after the defendant, who withheld consent, is lawfully arrested and removed from the scene. Detectives investigating a gang-related assault were directed to appellant’s apartment and, moments later, heard the sounds of screaming and fighting from appellant’s unit. When the detectives knocked on the door, an injured woman, Rojas, answered. After questioning Rojas, a detective asked her to step aside so he could conduct a sweep of the apartment. Appellant, who was in the apartment, stepped forward and told the officer he could not come in. Appellant was taken into custody and removed from the scene. Rojas then gave consent to search the apartment. Gang paraphernalia, a knife, and a sawed-off shotgun were located in the subsequent search. Appellant’s pretrial motion to suppress evidence was denied and he was convicted by jury of robbery and spousal abuse, with enhancements. Affirming the denial of the suppression motion, the court, analyzing Georgia v. Randolph (2006) 547 U.S. 103 and related cases, concluded that Rojas’ consent to a search of the apartment she shared with appellant was valid. Appellant’s absence from the home when Rojas consented to a search was determinative. Both presence and objection by the tenant are required to render a consent search authorized by a cotentant unreasonable as to the tenant. The Randolph majority’s “social expectations” premise does not apply when the tenant seeking to deny entry is no longer present. The objection loses its force because the person is not there to enforce it. Assuming the departure of the tenant is not motivated by police action to remove him to avoid a possible objection, a cotenant has authority to consent to a search. Otherwise, “a one-time objection” by a tenant would permanently deprive a cotenant from ever consenting to a search–an untenable situation.