Richard Wolf

USA TODAY

An absent tenant cannot stop a warrantless search

Walter Fernandez was removed by police for good cause

Female justices object despite wishes of %22abused woman%22

WASHINGTON -- A divided Supreme Court ruled Tuesday that police do not need a warrant to search an apartment when the objecting tenant isn't home -- even if they are the ones who removed him.

The 6-3 verdict left the three female justices on the court objecting despite the wishes of "an abused woman" who invited police in to seek evidence from an earlier, violent robbery.

Justice Samuel Alito wrote the opinion for the court's conservative majority, joined by Justice Stephen Breyer. While co-tenants of an apartment usually must agree to a warrantless search, he said, one tenant's absence frees the other to make the decision.

In the case of robbery suspect Walter Fernandez and his co-tenant, Roxanne Rojas, "consent was provided by an abused woman well after her male partner had been removed from the apartment they shared," Alito wrote.

The case stemmed from a 2009 robbery at knifepoint for which Fernandez ultimately was convicted. When he tried to bar police from his apartment, they took him into custody because Rojas appeared to have been beaten. He was identified as a suspect in the robbery and arrested.

Police returned to the apartment about an hour later, got permission to search from Rojas, and turned up considerable evidence. Fernandez sought to suppress the evidence on the grounds that police lacked a warrant.

"Denying someone in Rojas' position the right to allow the police to enter her home would also show disrespect for her independence," the court majority concluded. "Having beaten Rojas, petitioner would bar her from controlling access to her own home until such time as he chose to relent. The Fourth Amendment does not give him that power."

Justice Ruth Bader Ginsburg argued in dissent that Fernandez's objection to the search -- first raised while he was still inside -- requires police to get a warrant. She was joined by Justices Sonia Sotomayor and Elena Kagan.

"Instead of adhering to the warrant requirement, today's decision tells the police they may dodge it, never mind ample time to secure the approval of a neutral magistrate," Ginsburg wrote. "The specter of domestic abuse hardly necessitates the diminution of the Fourth Amendment rights at stake here."