I finally got around to reading Fernandez v. California [pdf], which the Supreme Court released a few weeks ago. Here are some thoughts, in no particular order:
a. Neither the majority, the concurrences, nor the dissent ever address the “search incident to arrest” exception. I find it unfathomable that California failed to mention it – in fact, it seems the most reasonable exception on which to base the search after Fernandez’s arrest – so why the glaring omission?
b. Justice Alito, so concerned with timing in earlier Fourth Amendment cases, gives the one-hour delay between Fernandez’s arrest and Rojas’s consent mere lip service here. Tracking cases like Jones are arguably a different kind of issue, but I find the difference intriguing.
c. Justice Alito continues to author Fourth Amendment opinions that impress me not at all. This one reads in many places as downright disingenuous – not in the least due to his blatantly-feigned “concern” about DV victims. (Also: how was this not a Quarles exception, vis a vis either the DV or the armed robbery?)
d. The dissent makes a hella salient point – how is one hour, during which the suspect is not on the premises, not enough time to get a warrant? That said, I don’t quite buy the dissent’s argument that if a warrant is get-able then consent searching should not be an option. Alito is disingenuous and creepily victim-blamey on this point as well (people WANT their homes searched? Srsly?) but his argument is sound.
e. Where is the line between “we arrested you on suspicion of a (separate) crime so your objection is no longer valid” and “we arrested you on suspicion of obstructing police, as evidenced by your objection”? Nobody addresses this at any point, but this is, in my mind, THE question for the average Joe.