Under Fernandez v. California, when the arrestee is removed, may consent be obtained from the present party who has actual authority?

• A. Yes, the present party who has actual authority can give consent
• B. No, consent must come from the original arrestee
• C. Yes, but only with a warrant
• D. No, consent cannot be obtained from the present party even if they have authority

Answer: (B)

Consent to search hinges on who has actual authority to permit it. In Fernandez v. California, the Court clarifies that once the arrestee is removed, the remaining occupant’s ability to authorize a search is limited, because the arrestee was the person with the controlling right to permit access. The rule is that the search may rely on the arrestee’s consent, and a present party who happens to have authority does not automatically supply valid consent in this scenario. Therefore, without the arrestee present to grant permission, there isn’t valid consent to search based on the present party’s authority, and the search cannot proceed on that basis. If no valid consent exists, law enforcement would need a warrant or another lawful justification.

The other options would imply that a present party with authority can authorize the search or that a warrant is required only in a separate pathway, which Fernandez rejects in this context.