Supreme Court Update: Fernandez v. California (12-7822), United States v. Apel (12-1038) and Hinton v. Alabama (13-6440)

February 27, 2014 Supreme Court Update

Greetings, Court fans!

The Court returned from its midwinter recess this week, issuing a slew of new opinions. We're going to break things up and bring them to you in bite-sized chunks. Today's Update will cover Fernandez v. California (12-7822), a Fourth Amendment decision on whether a co-occupant's consent to search is sufficient where the suspect occupant has objected to the search; United States v. Apel (12-1038), addressing the scope of military authority on areas of a military base used by the public; and Hinton v. Alabama (13-6440), examining an ineffective assistance of counsel claim involving counsel's failure to retain an adequate expert.

We'll start with the search. Generally, the Fourth Amendment requires police to obtain a warrant before they may enter and search a home. But, as the Court recognized in United States v. Matlock (1974), an exception to that general rule exists where an occupant with authority over the premises consents to the search, even if the consenting occupant isn't the one police are after. In Georgia v. Randolph (2006), the Court carved out an exception to that exception where one occupant on the scene objects to the search notwithstanding the consent of his fellow occupant. In such a case, the physically present inhabitant's objection "is dispositive as to him, regardless of the consent of a fellow occupant." This week, in Fernandez v. California (12-7822), the Court took out the carving knife again, dishing up an exception to the exception . . . to the exception.

Walter Fernandez most certainly did not consent to a police search of the apartment the police saw him entering after fleeing the scene of a robbery. When the cops knocked on his door, his girlfriend, Roxanne Rojas, answered it. She was crying and appeared to have been just struck on the face. The officers were about to conduct a protective sweep of the apartment when Fernandez appeared and told them: "You don't have any right to come in here. I know my rights." The cops promptly arrested Fernandez on suspicion of assaulting Rojas. They took him to the station for booking and then, an hour later, came back to the apartment and obtained consent from Rojas to search the shared premises, where they found drug and gang paraphernalia, weapons, and clothing matching the description of the robber they'd sought. Fernandez sought to suppress this evidence, arguing that the warrantless search was unreasonable under Randolph, given that he objected while physically present on the premises. The California courts rejected this argument and the Supreme Court affirmed, 6-3.

Writing for the majority, Justice Alito began with the premise that "[o]ur cases firmly establish that police officers may search jointly occupied premises if one of the occupants consents." In other words, the majority viewed Matlock as articulating a general rule that one occupant can consent to a search of shared premises, while Randolph merely "recognized a narrow exception to this rule," applicable only in those instances where the objecting occupant is physically present on the premises. The majority refused to "extend" that exception to "the very different situation . . . where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared."

Fernandez argued that Randolph should apply, inasmuch as he was physically present when he objected to the search and his later absence owed solely to the fact that the police had arrested him at the threshold of his apartment. Justice Alito was unsympathetic. Provided that the police conduct was reasonable—and Fernandez did not contend that police lacked probable cause to arrest him for domestic battery—"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." And the mere fact that Fernandez made clear his objection to the search prior to being removed from the premises did not mean the police couldn't later seek permission to search from Rojas, the joint occupant. Adopting a contrary rule—that once an objection is made it lasts until the objector withdraws it, or for some undefined "reasonable time"—would be unworkable, in the majority's view. Finally, Justice Alito emphasized the policy considerations favoring a narrow exception to the Matlock rule. True, in some cases (like this one) police officers with probable cause to arrest an objecting occupant will also have the probable cause needed to just get a warrant. But the Fourth Amendment does not require police to secure a warrant where consent is obtained and imposing such a requirement would "unjustifiably interfere with legitimate law enforcement strategies" and impose an "unmerited burden on the person who consents to an immediate search, since the warrant application procedure entails delay." If a lawful occupant wants to invite police inside her house, police shouldn't have to first get permission from a magistrate before accepting the invitation.

Justices Scalia and Thomas each wrote separately to emphasize their continued disagreement with the Randolph decision (in which Kennedy and Breyer were in the majority). In Justice Thomas's view, a consented search does not even implicate the Fourth Amendment—which only requires that searches be reasonable, not that all searches be supported by a warrant. In his separate concurrence, Justice Scalia invoked the property-based understanding of the Fourth Amendment and noted that there was no clear rule at common law forbidding one joint tenant from admitting visitors over his cotenant's objection.

To the dissenters—Justice Ginsburg writing on behalf of Justices Sotomayor and Kagan—the majority had the rules backward. By Justice Ginsburg's lights, "consent searches themselves are a jealously and carefully drawn exception to the Fourth Amendment rule ordinarily prohibiting the warrantless entry of a person's house as unreasonable per se." Randolph wasn't "a narrow exception," then, but rather a limitation on the exception carved out in Matlock. Justice Ginsburg criticized the majority for shrinking "to petite size" the Randolph rule, which she felt applied squarely to the facts of this case, where Fernandez voiced an "express, on-premises objection [which] should have been dispositive as to him."

Next, in United States v. Apel (12-1038), the Court took up the reach of military authority on military bases where the general public has been allowed some use of the property. Vandenberg Air Force Base sits on government-owned land in California that is administered by the Department of the Air Force. It is a closed base, meaning that civilians need permission to enter. But closed base designation notwithstanding, the County of Santa Barbara has an easement allowing two state roads to run through the base. The easement provides that use of the two roads "shall be subject to such rules and regulations as [the Base commander] may prescribe from time to time in order to properly protect the interests of the United States."

At an intersection with one of the state roads, the federal government has created an area designated for peaceful protest. Demonstrations must be scheduled at least two weeks in advance, and the base commander has reserved authority to withdraw permission to protest and to control who may access the easement roadways for purposes other than travelling through the base. Anyone who runs afoul of the policies governing the protest area may be barred from Vandenberg. Anyone barred from the protest area who nonetheless attends a protest or otherwise comes on base may be cited or detained for trespass.

Enter John Dennis Apel, an antiwar activist and regular protester at Vandenberg. Apel had several run-ins with base authorities based on violations of the protest policies and ultimately was barred from the base, except that he could traverse the two state roads. The order excluding Apel from the base explained that any violation would subject him to detention and prosecution for violation of 18 U.S.C. § 1382, which makes it a crime to reenter a military installation after having been ordered not to do so "by any officer or person in command." Apel ignored the order and entered Vandenberg several times in the two ensuing years, prompting the base commander to issue an undated order barring him from the base for three years. Undeterred, Apel showed up at the protest area three more times in the following year. Each time security personnel told him to leave, and each time he refused, earning him citations for violating § 1382. After he was convicted and fined, Apel appealed to federal district court, claiming that § 1382 does not apply to the protest area. The district court disagreed, finding that the military has "sufficient possessory interest" and "exercises sufficient control" over the area for the statute to have force. The Ninth Circuit reversed based on circuit precedent, which required the government to prove it had the exclusive right of possession of the area of the alleged trespass. The Ninth Circuit found that the easement deprived the government of exclusive possession of the protest area, and thus that § 1382 did not apply.

The Court reversed in a unanimous decision authored by the Chief. The Justices made quick work of Apel's claim that the statute applies only where the military exercises exclusive control, and that the easement negated such control at the Vandenberg protest area. Nothing in the text of the statute bars application of § 1382 where the government has granted the public some measure of access. In fact, historically, military forts, posts, and other installations have often provided services to civilians and been broadly open to them. Thus exclusive military use, possession, and control are not the touchstones for application of § 1382. Instead, the statute applies on military facilities as long as they have defined boundaries and are subject to a military officer's command authority. Nor did Apel persuade the Court with his argument that the highways running through the base and the protest area were beyond military authority because they were outside a guarded fence that enclosed operational facilities. Fence or no fence, all of Vandenberg has been designated an Air Force base and is under the base commander's jurisdiction. The Court also dismissed Apel's argument that the protest area in particular was uncontrolled. The base commander retained control over who could access all of the installation, including the protest area, and had enacted rules governing protests. The commander had also made it clear that people barred from Vandenberg – such as Apel – could not protest on the base. Although Apel claimed that in granting the easement the Air Force relinquished its right to exclude civilians from the public road that bordered the protest area, in fact the easement itself specifically reserved to the base commander the authority to restrict access to the entire base, including the road. Moreover, the use of the roads is limited to vehicular travel, which doesn't include protest activities.

In the end, "[w]here a place with a defined boundary is under the administration of a military department the limits of the ‘military installation' for purposes of § 1382 are coterminous with the commanding officer's area of responsibility. Those limits do not change when the commander invites the public to use a portion of the base for a road, a school, a bus stop, or a protest area, especially when the commander reserves authority to protect military property by, among other things, excluding vandals and trespassers."

The Court did, however leave one door open for Apel. Apel argued that § 1382 would be unconstitutional as applied to him at Vandenberg. Because the Ninth Circuit did not reach the constitutional argument, the Court declined to do so in the first instance.

Justice Ginsburg, joined by Justice Sotomayor, concurred separately, noting that Apel can raise his First Amendment claims when the case returns to the lower courts. Noting that the Air Force has shown little interest in controlling who may use the protest area, "it is questionable whether Apel's ouster from the protest area can withstand constitutional review." Justice Alito also concurred separately, making clear that the Court had not addressed the constitutional question and that the Court's decision neither agreed nor disagreed with the First Amendment argument Justice Ginsburg had outlined.

Finally, Hinton v. Alabama (13-6440) brought a rare per curiam reversal by the Court of the denial of an ineffective assistance of counsel claim. (We're more used to seeing the opposite.) Hinton was convicted of two murders and sentenced to death. The State's evidence against him: an eyewitness to a robbery (for which Hinton was not charged) identified Hinton as the culprit in a photo array; and a gun seized from Hinton's home, which the State claimed matched the bullets fired at the robbery and murder scenes. The State's ballistic evidence was the only thing tying Hinton to the two murders. Recognizing the importance of this issue, Hinton's trial attorney sought court permission to pay for an expert witness to counter the State's two firearms and toolmark experts. The court approved his request, but authorized only $1000, "which is the statutory maximum as far as I know and if it's necessary that we go beyond that then I may need to check to see if we can…." In fact, the statute had been amended a year earlier to eliminate any cap. Nevertheless, Hinton's attorney never checked the statute and instead scoured for an expert who would testify for the $1000. Unable to find someone satisfactory, he eventually ended up with a one-eyed man with little experience in firearms and toolmark evidence who had to ask the state's experts for assistance in using their microscopes. While Hinton's "expert" might have met the low threshold for admissibility of expert testimony in Alabama and thus been "qualified" to testify, the Court found that was not the end of the matter. Selection of an expert would normally be a decision virtually immune from judicial review. However, where the attorney subjectively views the expert as sub-par and only selects him due to an inaccurate understanding of the law on expert witness fees, that constitutes ineffective assistance of counsel. Further, the fact that Hinton's expert testified consistently with true experts in the field was of no moment – because it was clear the jury didn't believe him in light of his lack of qualifications in comparison to the State's experts.

We'll be back soon with the three remaining opinions.

Kim, Jenny & Julie

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400