We therefore hold that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason.

Fernandez v. California

134 S.Ct 1126 (2014)

U.S. Supreme Court


On Monday October 12, 2009, at about 11:00 a.m., Mr. Abel Lopez cashed a check at the Cambiamos Cheques business, 2252 Pico Boulevard, Los Angeles, California and approached by a man with light skin, a grey sweater, and a tattoo on his bald head. This man was later identified as Mr. Walter Fernandez.

At Cambiamos Cheques business, 2252 Pico Boulevard, Los Angeles, California, Albert Lopez cashed a check which Walter Fernandez witnessed and decided to rob Mr. Lopez at knifepoint.

Mr. Fernandez, whom Mr. Lopez later identified as Mr. Fernandez, asked what neighborhood Mr. Lopez was from. Mr. Lopez said, “I’m from Mexico.” Mr. Fernandez laughed and said Mr. Lopez was in his territory and should give him his money. He then said, “The D.F.S.[Drifters Gang]  rules here. They rule here.” Mr. Fernandez took a knife out of his pocket and pointed it towards Mr. Lopez’s chest. Mr. Lopez put up his hands to protect himself and defendant cut Mr. Lopez’s wrist.

Mr. Lopez tried to run away and, while running, took out his cell phone and called 911. He told the 911 operator he needed help because someone wanted to kill him. Mr. Fernandez then whistled loudly and three or four men ran out of a building on 14th Street and Magnolia. They hit Mr. Lopez in the face and all over his body, knocking him to the ground, where they continued to hit and kick him. When he got up, Mr. Lopez did not have his cell phone or wallet. He saw the men running back to the building from which they had come. As a result of the attack, Mr. Lopez suffered a deep cut on his left wrist and bruising and swelling over his body. Several minutes after the attack, the police and paramedics arrived. Mr. Lopez participated in a field showup, where he identified Mr. Fernandez as the man who robbed him and whistled for co-consipirators.

LAPD Detective Kelly Clark and Officer Joseph Cirrito responded to a police radio dispatch on October 12, 2009. Because the police dispatcher indicated possible involvement by members of the Drifters gang in an assault with a deadly weapon, Det. Clark and Officer Cirrito drove to an alley near Magnolia and 14th Street where they knew Drifters gathered. As they stood in the alley, two men walked by and one said, “[T]he guy is in the apartment.” The witness appeared very scared and walked away quickly. When he returned, he again said, “He’s in there. He’s in the apartment.” Immediately thereafter, the detectives saw a tall, light-skinned, Hispanic or white male wearing a light blue t-shirt and khaki pants run through the alley and into the house where the witness was pointing. The house had been restructured into multiple apartments and was a known gang location. A minute or so later, the officers heard sounds of screaming and fighting from the apartment building into which the suspect had run.  Spoiler alert – Mr. Fernandez was not only a gang member and a street robber but also a woman beater.

Det. Clark and Officer Cirrito called for backup and, once additional officers arrived, knocked on the door of the unit from which they had heard screaming. The door was opened by Ms. Roxanne Rojas, who was holding a baby and appeared to be crying. Her face was red and she had a big bump on her nose that looked fresh. She had blood on her shirt and hand that appeared to come from a fresh injury. Officer Cirrito asked what happened and she said she had been in a fight. Officer Cirrito then asked if anyone else was inside the apartment, and she said only her son. When Officer Cirrito asked her to step outside so he could conduct a sweep of the apartment, defendant stepped forward. He was dressed only in boxer shorts and seemed very agitated. He said, “You don’t have any right to come in here. I know my rights.” Officer Cirrito removed him from the residence and took him into custody.

While Officer Cirrito and Det. Clark arrested defendant at the rear of the house, two men ran out of the front of the house. Officers detained them for questioning.

After Mr. Fernandez was removed from the scene, officers secured the apartment. Det. Clark then went back to Ms. Rojas, told her that defendant had been identified as a robbery suspect, and asked for Ms. Rojas’s consent to search the apartment. Ms. Rojas gave consent, orally and in writing. During the ensuing searc
h, officers found Drifters gang paraphernalia, a butterfly knife, boxing gloves, and clothing, including black pants and a light blue shirt. None of the items stolen from the victim were ever found.

The officers interviewed Ms. Rojas about her injuries. She said that when defendant entered the apartment, she confronted him about his relationship with a woman named Vanessa. They argued, and defendant struck Ms. Rojas in the face. The officers also spoke to Rojas’s four-year-old son, Christian, who told them Mr. Fernandez had a gun. Officers recovered a sawed-off shotgun from a heating unit where Christian told them it was hidden.

Two days later, Officer Cirrito interviewed Ms. Rojas again. She said several times that she did not want to be a “rat” and that defendant would be very upset if he knew she was talking to the police. She denied that defendant struck her and said she had been struck in the face by Vanessa.

Mr. Fernandez was charged with Possession of a Firearm by a Felon, Possession of a Short-Barreled Shotgun and Felony Possession of Ammunition.  He filed a Motion to Suppress which the trial court denied. Mr. Fernandez was convicted, appealed through the California appellate courts which was denied, so he again appealed to the U.S. Supreme Court which held “We therefore hold that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason.”.

So, Walter was right; he had the constitutional right to refuse the officers to enter his apartment after Roxanne, his live-in girlfriend, had granted consent.  However, his right of refusal made it all the way to the U.S. Supreme Court that created a new Fourth Amendment right for law enforcement.

Lessons Learned:

  1. If a co-occupant of a building is a removed by police or for any other reason, then the remaining occupant’s consent to enter is controlling. In this case Mr. Fernandez committed Domestic Violence against his live-in girlfriend, was arrested and transported from the scene.  He previously declared that the Los Angeles Police Officers did not have consent his apartment.  In his absence the victim of his Domestic Violence granted consent.  Therein, a firearm and ammunition were found.  Not surprisingly, Mr. Fernandez had been previously convicted of a felony, so LAPD charged him with additional crimes.
  1. This case further distinguishes Georgia v. Randolph, 547 U.S. 103 (2006) which I wrote about in Sometimes Husbands and Wives disagree … But What is an Officer to Do? Officers must understand the difference between Randolph and Fernandez.  If a co-occupant is present and he refuses consent while the other co-occupant agrees to consent, law enforcement does not have the authority to enter the building based on consent.
  2. I am impressed with the preparation of the LAPD officers in this incident.  Did their sergeant or agency provide the training to distinguish the Randolph case?     I would appear that the officers did have the technical understanding to know that if Mr. Fernandez was not present his refusal to enter would not be binding.  Well done LAPD!

Does your agency train on Crossing the Threshold?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and objectively reasonable!

Robert H. Meader Esq.