Office Safety Tips

In municipal government, labor-intensive jobs in public works, law enforcement and emergency services, are the source of most work-related injuries. But are you aware that employees who work in office settings are also at risk of suffering disabling injuries? The injuries may look different, but they still cause pain, cause expensive workers’ compensation claims, and reduce overall productivity. Office workers deserve a spotlight on how to stay safe and healthy at work. 

Employees may feel safe in the comfort of their office, but that’s where the dangers are. Poor ergonomics and organization can lead to three common office injuries – repetitive use injuries, computer eye strains, and falls. Here’s what you need to know about these injuries and how you can avoid them to make the office a safe workspace. 

Repetitive Stress Injuries 

A Repetitive Stress Injury (RSI) or overuse injury is caused by repeating the same motion for extended periods and RSIs affect millions of workers every year. In an office setting, extended periods of sitting and computer work without proper ergonomics can cause strain on the back and upper extremities, wrists, elbows, and hands. 

Employees who perform repetitive activities are at risk of developing carpal tunnel syndrome, a common RSI. Carpal tunnel syndrome causes swelling in the wrist that puts pressure on the nerves and causes pain, tingling, and numbness. Also, prolonged sitting can lead to different posture problems, like strained neck and shoulders or lower back pain. While these may seem like small injuries, they can cause a lot of pain and make work difficult. As they get more severe over time, these RSIs can potentially require long-term physical therapy and rehabilitation. 

The best way to avoid these injuries is by preventing them with ergonomic workstations. Ergonomics is the study of how people interact with their physical environment. You can maximize productivity and minimize injuries by building the physical environment around a person, or fitting a workspace to an employee, rather than forcing an assorted-sized workforce to all fit within the same dimensions. 

For example, consider a 5-foot-tall employee using the same chair settings as a 6-foot-tall employee. The shorter workers could have tension in their back and thighs if their feet can’t rest comfortably on the ground, and the taller workers could strain their neck having to look down at the computer monitor. Different workers have different needs. 

To get started on improving ergonomics, follow these guidelines: 

·         Provide adjustable workstations that allow employees to alternate between seated and standing positions 

·         When working at a computer, keep wrists in a neutral position, elbows by your side, shoulders back, and sit up straight 

·         Keep regularly used items, like the telephone and calculator, within easy reach 

·         Adjust your chair so your feet rest firmly on the floor with your knees bent at 90-degree angles 

·         Position your computer monitor directly in front of your head, just at or slightly below eye level 

Along with these ergonomic guidelines, encourage employees to take frequent breaks to stand, walk around, and stretch their hands and wrists. 

Computer Eye Strain 

With the average U.S. worker spending seven hours a day on the computer, not to mention personal time staring at phone screens, eye strain has become a common injury for office workers. A survey from the American Optometric Association reported that 58% of adults have experienced eye strain or vision problems as a direct result of too much screen time. 

Symptoms of computer eye strain include headaches, blurred vision, dry eyes, eye twitching, or even physical fatigue and increased number of work errors. Most office employees rely on computers to complete their work, so you can’t get rid of computers to fix this problem. However, there are several adjustments workers can make to reduce eye strain and improve productivity. 

These adjustments include: 

·         Cover windows or close the blinds to reduce excessively bright light coming from outside 

·         Use fewer light bulbs or lower intensity bulbs to reduce excessive indoor brightness 

·         Position computers to the side of a window rather than in front of or behind it 

·         Adjust the brightness of the computer display to match the brightness of the surrounding workstation 

·         Alter text size and contrast for comfort 

Employees should also take breaks away from the computer to avoid eye fatigue. One common method encouraged by eye doctors is the “20-20-20 rule.” Every 20 minutes, workers should turn their gaze to an object that’s 20 feet away for at least 20 seconds. This rule relaxes the muscles inside the eye. A recent study by the National Institute for Occupational Safety and Health (NIOSH) found that these breaks not only significantly reduced eye strain, they also increased work productivity. 

Slips, Trips, and Falls 

According to the National Safety Council, slips and trips account for the greatest number of work-related injuries in offices. The Centers for Disease Control and Prevention (CDC) adds that office workers are two to 2.5 times more likely to suffer a disabling injury from a fall than non-office workers. 

While falls are usually just accidents, they are preventable. Clear work areas, proper lighting, and promptly cleaned up messes can help prevent most workplace falls. The CDC states that the most common causes of office falls are: 

·         Tripping over open drawers, electrical cords, loose carpeting, or objects in walkways 

·         Reaching for something while seated in an unstable chair 

·         Standing on a chair instead of a ladder 

·         Slipping on wet floors 

·         Not being able to see due to inadequate lighting 

Employers can reduce the $70 billion spent annually on workers’ compensation and medical costs for falls by encouraging employees to follow some simple tips: 

·         Don’t place objects in common walking paths 

·         Close file and desk drawers when you finish using them 

·         Get up to reach something rather than trying to reach from your chair 

·         Secure electrical cords and loose carpeting 

·         Clean up spills on the floor (even if you didn’t make the mess), or place caution signs over spills until they’re cleaned up 

·         Use stepladders instead of chairs to reach items overhead 

Although work-related injuries in an office setting can be severe, they’re also mostly preventable. So, start making your office a safer place by following these simple tips and educating your workforce. 

September 2018 Risk & Safety Newsletter

Preventing Worker Deaths from Trench Collapse

Trench collapse accidents are rarely survivable. OSHA statistics reveal fatalities caused by trench wall collapse are increasing. This trend is preventable by complying with OSHA standards that every municipal utility service employee should know. Municipal employees who dig or excavate trenches are at risk of death if they enter an unprotected trench and the walls collapse.   

Hazards associated with trench work and excavation are well defined in the OSHA standard for excavation and trenching found in 29 CFR 1926.651 and 1926.652 Subpart P. It describes the precautions needed for safe excavation work. There is no reliable warning when a trench fails. The walls can collapse suddenly, and workers will not have time to move out of the way. Even though small amounts of dirt may not seem dangerous, a single cubic yard of dirt can weigh more than 3,000 pounds, which can fatally crush or suffocate workers. Even small, solid pieces of dirt can cause serious injuries. 

Most incidents involve excavation work on water, sewer, pipeline, communications and power-line maintenance, repair, and/or construction. OSHA data shows that most fatalities in trenches occur at depths of 10 feet or less. Lack of a protective system was the leading cause of trench-related fatalities. 

OSHA requires all trenches 5 feet deep or more use one of the following protective systems: 

• Sloping the trench walls 

• Benching the trench walls 

• Shoring the trench with pneumatic or hydraulic jacks and trench plates 

• Shielding the trench using a trench box 

Workers should never enter a trench that does not have a protective system in place designed and installed by a competent person. Factors such as type of soil, water content of soil, environmental conditions, proximity to previously backfilled excavations, weight of heavy equipment or tools, and vibrations from machines and motor vehicles can greatly affect soil. Not all protective systems can be used in all types of soil. A competent person is one who understands OSHA regulations, can recognize hazards, and is authorized to correct them. 

Employer Responsibilities 

Call 811 before digging so that utility lines can be marked.  Train and designate a competent person to ensure safety measures are in place. What is a competent person? A competent person is an individual who can identify existing and predictable hazards in the surroundings or working conditions which are unsanitary, hazardous, or dangerous to workers, and who is authorized to take prompt corrective measures to eliminate them. 

Competent Person Responsibilities 

• Classifying soil 

• Inspecting protective systems 

• Designing structural ramps 

• Monitoring water removal equipment 

• Conducting site inspections 

• Planning the job layout to identify safe locations for spoil piles and heavy equipment routes 

• Determining what type of protective system will be used for the job and scheduling the steps needed to have the system complete and in place before workers enter 

• Ensuring that employees are trained to spot signs of imminent trench collapse, including tension cracks, bulging, and toppling 

• Developing a trench emergency action plan to describe steps to be taken and to provide contact information in case of an emergency 

• Ensuring that ladders and other means of exit from the trench are repositioned so that ladders are never more than 25 feet away from any worker in the trench 

• Must remove workers from the excavation upon any evidence of a situation that could cause a cave-in, such as accumulation of water in the trench or protective system problems 

• Take actions for other types of hazards such as falling loads or hazardous atmospheres 

• Monitor other types of trench–related hazards that can occur such as falls from the edge, rigging hazards, or toxic and combustible gases 

• Implement and enforce procedures to ensure that work in an unprotected trench is not allowed 

Workers 

• Do not enter an unprotected trench, even for a short task 

• Inspect the protected trench before entering 

• Exit the trench and call the competent person if you see any evidence of problems with a protective system 

• Do not assume there will be a warning sign before a cave in or that you will have time to move out of the way 

• Manually uncover utilities to determine the exact location and depth before mechanical digging with a backhoe or trackhoe

Do you ever work in a confined space?

Do you ever work in a confined space? There are many types of confined spaces – tanks, silos, pits, tunnels, pipes, boilers, sewer manholes, trenches, etc. No matter what the type, confined spaces have something in common. They have limited ways to get in and out, and the atmosphere within them could be dangerous. 

A confined space has three characteristics: 1) It has limited openings for entry and exit, 2) it is large enough to permit a worker to enter, and 3) it is not designed for continuous worker occupancy. The characteristics of a confined space cause it to present unique hazards. Early miners knew some of the dangers of a confined space. Have you ever heard about the canary that died? Miners took a bird into the mine. When the bird died, the miners knew the atmosphere in the mine was getting dangerous. The death of the canary told miners it was time to leave. Today we have more sophisticated ways of testing the atmosphere in confined spaces, but the principle is the same. Check the atmosphere to make sure it is safe to work in before you enter a confined space. 

Confined spaces present many dangers – some of which the miners of yesteryear never knew. Here are some common confined space hazards: 

• Lack of oxygen, presenting a suffocation hazard

• Fire or explosion hazards from an accumulation of flammable vapors

• Health hazards from toxic vapors

• Difficulty exiting the space in the event of an emergency

• Cramped spaces to work in, resulting in a danger of being caught in/on equipment  

• Poor visibility

• High levels of noise

• Temperature extremes

Regulatory agencies require workplaces to have a plan for working in confined spaces safely. If you work in a confined space, you should know your municipality’s procedures for safely entering the space and working in it. Confined spaces should be identified and classified, and safe entry procedures developed. Some confined spaces are called “permit-required confined spaces,” meaning a permit is required for entry into the confined space. In addition to the normal characteristics of a confined space, permit-required spaces present one or more of these hazards: 

• Has the potential to contain a hazardous atmosphere

• Could contain material capable of engulfing someone entering the space

• Has an internal configuration such that a person could be trapped or asphyxiated by inwardly converging walls or by a floor which slopes downward and tapers off to a smaller cross-section (i.e. grain elevator) 

• Contains any other recognized serious hazard

In general, these are the things you should be aware of before you enter a confined space: 

• Know how to enter it safely

• Know how to exit quickly

• Know that the atmosphere in the space is tested and found to be free of dangerous levels of toxic or flammable vapors, and that there is sufficient oxygen

• Know that the atmosphere within the space is going to remain safe while you are working

• Know the rescue plan in the event of an emergency, and make sure the proper rescue equipment is available and in good condition

• Know that another person outside the confined space is keeping an eye on you as you work, and that they know the rescue plan also

• Know what other procedures are necessary to follow to work safely, such as locking out energy sources

Another very important thing to remember is what to do if someone working in a confined space becomes ill or injured. In the event of such an emergency, you should never enter a confined space to rescue someone without the proper equipment, training, and atmospheric testing. Chances are, whatever caused the illness or injury will get you too! Many confined space accidents claim the lives of multiple victims because the initial ill or injured person is a friend and co-worker. People often react to the situation with poor judgment - they just see their friend is in need and jump in to help them without thinking about the danger to themselves. The next thing you know they succumb to the hazard. 

It is possible to work safely in confined spaces, but it is a task that requires careful planning and preparation. Don’t be tempted to take shortcuts when it comes to confined spaces. Follow all safety precautions and don’t hesitate to speak up if you are unsure of the correct procedures. You play the most important role of all when it comes to working safely. By consistently following safe work procedures and not taking chances, you will be working safely for a long time to come. 

Keeping Solid Waste Workers Safe

It’s dangerous to be a “Trash Man”. According to the Solid Waste Association of North America, there were 7 fatalities to sanitation workers in the first 10 days of 2018.  In addition, the Bureau of Labor Statistics has determined that refuse and recyclable materials collectors have the 5th highest fatal work injury rate among civilian occupations. Then there are the non-fatal injuries; sprains, strains, and over-exertion injuries in solid waste collection are 10 times more likely, due to jumping on/off trucks, handling heavy loads, and being backed over by drivers. Exposure to potentially dangerous materials is another major concern in the solid waste industry.

Although OSHA regulations don’t expressly govern sanitation employees or vehicles, it does inspect industrial employers if fatalities occur. The American National Standards Institute (ANSI) has published Safety Standards for Mobile Refuse Collection and Compaction Equipment, a group of procedures that offers worker guidance:

• Ride only in the vehicle cab or on steps specifically designed for riding

• Remain inside the vehicle cab until the vehicle is completely stopped

• Ensure workers are not using riding steps when the vehicle is backing, exceeding 10mph, or traveling more than 2/10th ‘s of a mile

• Ensure no one rides on the loading sills or in hoppers

• Wear personal protective equipment, high visibility vests, and/or outerwear

• Never use cellphones while driving trucks or at a disposal facility

• Always wear a seat-belt

Equipment makes a difference.  Garbage trucks with automated side-loader systems enhance sanitation worker safety by limiting exposure to hazards outside the truck, as well as those associated with heavy lifting. The same worker can drive the truck and operate the mechanical side arm, which collects refuse containers, dumps contents into the truck and returns the container to the ground. The automated side-loader, from an equipment standpoint, has made a huge difference to worker hazard exposure. No more manual lifting, no being exposed to hazardous waste, and no more being hit by vehicles in the roadway.

Some workers, however, still manually load garbage into trucks despite the emergence of more widespread automated collection. Municipalities may want to establish weight limits for garbage, but these must be rigorously enforced. Workers don’t know by looking at a bag how heavy it is until they lift it. The contents of the bag may not immediately be apparent, putting workers at risk of chemical or bio-hazards.

Many garbage trucks these days are equipped with rearview cameras and other technology to augment the mirrors on both sides of the truck. It should be stressed to drivers to look back and forth between mirrors and cameras when driving and backing the vehicle, to establish good awareness of the environment and to be sure they know where ground workers, other people, vehicles, buildings, and other hazards are at all times. Although maintaining focus remains the goal of drivers, industry experts find that complacency can still develop. There is truth to the concern that workers will become complacent and distracted after having done the same thing day after day, week after week, month after month, without anything bad happening. That is why we need to train and retrain on safety and communicate why it is important and everybody’s job. In addition, drivers should participate in extended training on a Focus 6 Program, designed to help them maintain the skills to eliminate the six most frequent types of sanitation industry incidents: backing, rollover, rear collision, intersection, pedestrian/bicycle, and push-pull-and lift.

Although hazards are also present during post-collection operations at landfills, transfer stations, and recycling centers, these are more fixed facilities and the hazards are more defined and can be adjusted. Observing people is easier because of the controlled environments at these facilities.

Communication between workers and supervisors is a key element to sanitation safety. Supervisors should remain aware of new techniques and industry standards by subscribing to waste management periodicals. It takes collaboration, leadership, and teamwork to make the industry safer.

Is 911 your confined space rescue plan? If so, here's what you should know.

The dangers of confined space work have been written about since Roman times, when the Emperor Trajan was noted to have sentenced criminals to clean sewers, an occupation considered one of the worst.  Working conditions have improved vastly since Trajan’s time, but the same hazards persist and result in workplace injuries and fatalities each year.  According to the Bureau of Labor Statistics nearly 100 work fatalities occur in permit-required confined spaces.  In addition, for every victim who dies in a confined space, 3 would-be rescuers lose their lives trying to rescue a victim.  

Even though you’ve met all the requirements for a safe confined space entry: you have an attendant, an entrant, and a supervisor, you have the space clearly marked and protected as a confined space, you are monitoring atmospheric conditions, you’ve made sure the entrant has a harness, tripod, tag-line and winch in place, and you have a correctly completed confined space entry permit, you aren’t done.  The only requirement remaining is completion of the rescue plan.  Most municipalities usually complete the rescue plan by writing “CALL 9-1-1.” That is not sufficient. 

Relying solely on 9-1-1 as your means of emergency rescue is essentially planning for a body recovery, not a rescue.  To prevent injuries and fatalities, the Occupational Safety & Health Administration (OSHA) requires a specific plan of operation for confined space rescue. These operations must be established by the employer (municipality)¹. If 9-1-1 is part of your emergency plan, the employer is to, among other things, do the following: 

• Evaluate the emergency responder’s ability to respond in a timely fashion 

• OSHA expects emergency care to be administered to the victim in 3-4 mins² 

• Ensure the responder has the equipment and training to enter the specific confined space you are working in 

• Even though you are in a small community and the fire station is just around the corner, that doesn’t necessarily mean that your local firefighters have the training and equipment to respond to a confined space rescue 

• Ensure the responder is proficient in performing the needed rescue services 

• OSHA standards require that the owner of the confined space ensure that the emergency responders are proficient at conducting rescues from the specific types of spaces 

• OSHA lists 24 types of confined spaces depending on the size of the opening, shape of the opening, and location with respect to the space 

• The OSHA term “Proficient” means the employer has certified the responder as being proficient in conducting rescues from the specific type of confined space encountered 

Municipalities, like private employers, have two options when considering permit-required confined space rescue, since for most, “9-1-1” is not a viable option for emergency confined space response and rescue operations.  

• Train your employees to conduct permit-required confined space rescue operations and provide medical assistance, or 

• Hire a third-party Rescue and Response company to provide those services for your municipality. 

---

¹OSHA Confined Space Regulations for General Industry: 1910.146(k)(1) – 1910.146(l)(2)

²OSHA Confined Space Regulations for Construction 29 CFR 1926.1211(a) – 1926.1211(d)  

License and Permit Fees for Medical Marijuana

Will Medical Marijuana open a new revenue stream for municipalities? Early indications are that some OMAG members believe that it will, and in more areas than just sales tax collections. OMAG cautions its members against enacting excessive permit or licensing fees as those fees cannot be used for revenue generation.

License and Permit Fees Cannot Be Revenue Generators

Oklahoma municipalities may exercise police powers and the power to tax. The power to tax is restrictive and typically requires a vote of the people. The power to protect the health and welfare of the public, on the other hand, is largely left to the discretion of the municipality.

The Courts have upheld the charging of permit and license fees as a valid exercise of police powers when the municipality is seeking to defray or recover its actual costs in issuing licenses or permits and any costs directly associated with regulating the occupation.[i] If the amount of the fee is not limited to the "necessary or probable expenses of issuing the licenses and the necessary supervision and regulation of the business", it will not be considered a valid exercise of police powers and will be invalidated.[ii] 

A common, pre-election objection to SQ 788 was that Medical Marijuana would lead to an increase in crime necessitating an increase in the cost of law enforcement. The increase in the cost of general criminal law enforcement cannot be considered as a cost of regulation for the purpose of recovering that cost via a fee.[iii] Unless the cost relates to the issuance, investigation or enforcement of business regulations, it is not recoverable in a fee. If a given business attracts a criminal element that results in a greater need (and associated cost) for law enforcement, that is not a cost that can be recovered by a license or permit fee.

SQ 788 vests jurisdiction for the regulation and ongoing inspection of the commercial marijuana industry in the Department of Health. Little room is left for independent municipal regulation of the industry. It is thus difficult to identify what costs a municipality will incur above the normal costs for licensing a routine business that would justify the charging of higher (or, in some cases, much higher) license or permit fees for marijuana Growers, Processors or Dispensaries.

OMAG strongly recommends against the charging of higher permit fees for the marijuana industry unless your municipality can show what added costs it expects to incur that directly relate to the issuing of a license or permit and the lawful investigative and enforcement efforts related to that industry. If marijuana is to become a cash crop for Oklahoma municipalities, it will have to be by way of sales tax and not license or permit fees.

Marijuana and Sales Tax

There remains a serious question as to whether municipalities may impose a sales tax on Medical Marijuana. 63 O.S. §426 created a special sales tax for the State without any language making that tax the exclusive tax applicable to Medical Marijuana. The issue remains whether this section merely created a special (higher) rate for Medical Marijuana or whether it created a new kind of tax that municipalities are not currently charging. OMAG believes the most logical reading of this section is that it merely imposes a higher sales tax rate at the State level and that, absent express language to the contrary, the retail sale of marijuana would also be subject to existing municipal sales tax rates. OML has noted on their website that they are " currently working with the Oklahoma Tax Commission to verify municipalities' ability to immediately collect sales tax once SQ 788 becomes effective."

Footnotes:
i. City of Shawnee v. Reid Bros. Plumbing Co., 1949 OK 82, 207 P.2d 779 quoting McQuillin-Municipal Corporations Revised, Sec. 1089.
ii. City of Hartshorne v. Marathon Oil Co., 1979 OK 48, 593 P.2d 97.
iii. Red Slipper Club, Inc. v. City of Oklahoma City, 1979 OK 118, 599 P.2d 406 distinguishing Jack's Supper Club v. City of Norman, 1961 OK 82, 361 P.2d 291 by noting that, in Jack's, cops engaging in routine regulatory (not law enforcement) inspections - the cost of which could be recovered in a license fee.

DISCLAIMER:  The process leading up to the implementation of medical marijuana in Oklahoma has been a long one and is still on-going. OMAG attorneys have sought to keep updating this webpage with the most up-to-date information possible. OMAG members seeking advice on the medical marijuana statutes should be aware that there may not be clear-cut answers on some of the issues. OMAG offers this guidance to help your municipality make informed decisions about policies and procedures, directly or indirectly related to medical marijuana, until some of the issues can be decided by the Legislature or the Courts. If you have questions or concerns about the information contained in these articles, please email one of the attorneys in the OMAG Legal Department at omaglegal@omag.org.

Consent to Search When There Are Co-occupants of a Residence

The Supreme Court has long held that police officers may search a jointly occupied residence if one of the occupant’s consents.  United States v. Matlock, 415 U.S. 164 (1974).  In 2006 the Court recognized a narrow exception to this rule, holding that consent of one occupant is insufficient when another occupant is present and objects to the search.  Georgia v. Randolph, 547 U.S. 103 (2006).  On February 25, 2014 the Court clarified Randolph by ruling that the police can search a home without a warrant, even if one co-tenant objects, as long as, the objecting co-tenant is no longer on the scene and another co-tenant gives consent. Fernandez v. California, 571 U.S. 292 (2014).

In Fernandez, police officers responding to a call about a violent robbery observed Fernandez run into an apartment building and heard screams coming from the apartment.  Officers knocked on the apartment door, which was answered by a woman who appeared to be battered and bleeding.  The suspect then came to the door and objected to the officers entering the apartment.  The officers removed the suspect from the apartment, arrested him, and took him to the police station on suspicion he had assaulted the female. An officer returned to the apartment an hour later and, after obtaining the female’s oral and written consent, searched the premises where he found several items linking Fernandez to the robbery.

Fernandez’s attorney, citing Georgia v. Randolph, attempted to have the items found in the apartment suppressed from evidence, arguing that Fernandez had objected to the search of the apartment before he was taken into custody. The Court refused to suppress the evidence and stated that Randolph was strictly limited to situations when the objecting co-tenant is physically present. The only case in the 10th Circuit that has addressed this issue is the United States District Court for the District of New Mexico.  of the New Mexico Court has adhered to the strict limitation of Randolph and found that consent to search will not be invalidated by a defendant’s objections if the defendant is either (1) not present while consent was given, or (2) has been lawfully removed. United States v. Montoya, 2016 U.S. Dist. LEXIS 152828 (D.N.M., Nov. 2, 2016).

The lawful tenant of a residence has the right to invite law enforcement to enter and conduct a search.  In fact, the Court explained that if a lawful tenant wants to invite police inside her house, police shouldn't have to first get permission from a magistrate before accepting the invitation. Requiring officers to obtain a warrant when a warrantless search is justified may interfere with law enforcement strategies and impose an unmerited burden on the person willing to consent to an immediate search.

A third party may consent to a search of property if that third party has either (1) mutual use of the property by virtue of joint access, or (2) control for most purposes over it. United States v. Guillen, 2018 U.S. Dist. LEXIS 75832 (D.N.M., Sept. 8, 2017). When a third-party consents to a search, officers must inquire into the relationship between the defendant and the consenter to determine whether the third party has apparent authority to consent and whether that relationship is the type where it could be presumed that the consenter has control over the property. Unless facts demonstrate that the defendant and the third party had some sort of agreement—leading to an expectation of privacy in his room—the third party’s authority to consent is presumed. And when a third-party consents to a search, and the defendant fails to object to the search, the court will treat the failure to object as a “good” indicator that consent existed.

The court in Guillen denied a defendant’s motion to suppress evidence that was seized from a child’s room after the father had consented to the search. After entering the home and questioning the child, who was a suspect in a criminal investigation, the child’s father returned home, and upon his arrival officers asked for his consent to search the home. Although the child was a very private person and had a previous agreement with his father that he could not enter his room without his permission, the court found that police officers did not violate the child’s expectation of privacy because it was reasonable for them to believe that his father had apparent authority to consent to the search and were unaware of any agreements made between the child and his father.

To sum it up, the Court’s opinion focuses on the physical presence of the objecting co-tenant.  If the objecting co-tenant is physically present and objects to a search, then the police cannot search the residence.  If the objecting co-tenant has been lawfully removed from the scene then the police may search if there is consent from a co-tenant. 

“Fernandez v. California— Consent Required for a Warrantless Search” was written by Suzanne D. Paulson, OMAG Associate Counsel and updated by Alan Taylor, legal intern. You may contact the author at spaulson@omag.org. The information in this Risk Alert is intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinions with respect to specific situations, since such advice requires an evaluation of precise factual circumstances by an attorney.

                                                                                                                                                                                                                    March 2014 (updated 7/2018)