The Supreme Court will hear oral argument today in Fernandez v. California. It is a Randolph case with potential application to military cases.
SCOTUSBlog shows the QP as:
Whether, under Georgia v. Randolph, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of Fourth Amendment rights which cannot be overridden by a co-tenant.
CAAF and several Service courts have dealt with Randolph issues. And in general the military courts have avoided application of Randolph to find an unlawful search. See e.g., United States v. Irizzay, 72 M.J. 100 (C.A.A.F. 2013), cert. denied Irizarry v. United States, 187 L. Ed. 2d 148; , 2013 U.S. LEXIS 7174 (U.S., Oct. 7, 2013)(the health and welfare inspection of off-base apartment case). Or,
We granted review in this case to determine two issues. First, whether the search of Appellant’s house was reasonable where Appellant objected to the search, but was not physically present when the search was conducted pursuant to his wife’s consent. Second, if, as Appellant argues, the search was unreasonable under Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515, 164 L. Ed. 2d 208 (2006), whether the inevitable discovery exception would allow admission of the seized evidence. As we find that the search was reasonable under these circumstances, we do not reach the second issue.
United States v. Weston, 67 M.J. 390 (C.A.A.F. 2009).
If the court agrees with the government in Fernandez, they effectively make Randolph meaningless. The police will merely change their behavior and timing of an arrest followed by asking for third party consent. Of course, as the petitioner’s brief points out, PC for an arrest means there is likely PC for search warrant.