POLS 4720 Lecture Notes - Lecture 5: Samuel Alito, Consent Search, Implied Consent
5 May 2018
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This line of questioning and analysis of previous decisions shows that Justice Alito already needs
more clarification from Fernandez’s side if he is going to change his mind about viewing police
officers as a different category of visitor. Although there is a difference in consent-with-
objection and implied consent, the prediction can still be made that Justice Alito will not place
police officers in a different category than a stranger. He does not state this, but it can be
concluded that Justice Alito would agree that a wife would have a right to bring a friend over for
a visit that her husband does not like while he is on a business trip. By not classifying police
officers and friends differently, Justice Alito will likely not support Fernandez unless other
information can sway him.
In one engagement, Justice Alito presses the issue of probable cause and warrant
exceptions. He asks if “there is a rule that states you can’t have a consent search where there’s
probable cause because where there’s probable cause, you can get a warrant and, therefore, you
can’t consent to the search.” This question can be connected to the ruling in Kentucky v. King. In
Kentucky v. King, the Court decided, with Justice Alito in the majority, that there are many
reasons why police may not seek a search warrant. Just because obtaining a warrant is a
possibility, it does not mean police lose discretion to decide whether obtaining a search warrant
is the best option for the situation when there are valid search warrant exceptions in play. The
validity of the consent was probably already cleared up for Justice Alito when he questioned how
police officers are any different than another category of visitors. In his mind, there is a warrant
exception. Since Justice Alito did not dissent in Kentucky v. King, we can assume that he
believes the possibility of obtaining a warrant is irrelevant if there are other options for the police
officer. Since Fernandez’s attorney answers Justice Alito’s question about warrants and consent
searches with a “no,” and he cannot provide a case where police officers must get search
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