Defendant asleep inside had no veto power over consent, and the police did not have to ask him first

Defendant’s live-in girlfriend consented to a search of the premises while defendant was in the bedroom asleep. Randolph has no application, and the trial court erred in applying it trying to give the defendant veto power when he was unavailable to consent. People v. Parker, 325 Ill. Dec. 768, 898 N.E.2d 1047 (2007):

Here, we find that the warrantless search of defendant’s home was reasonable and did not violate his fourth amendment rights where police had secured a voluntary consent to search the premises from the co-tenant in defendant’s absence. Similar to the defendant in Rodriguez, defendant in this case was sleeping in the bedroom when Grisham, his live-in girlfriend, gave police her consent to enter and search the home that they shared. Although defendant was present nearby, he was not present at the threshold colloquy where Grisham gave her voluntary consent. Due to his absence at that point, defendant could not object when police entered his home and began their search. Following the reasoning of the Randolph court, defendant “lost out” on his opportunity to do so. We further note that the record contains no evidence that defendant ever expressly voiced an objection to the search, even after being confronted by police in the bedroom.

In addition, we reject defendant’s argument that the search was unreasonable because he was deprived of his opportunity to object. In order for defendant to override Grisham’s consent, it was necessary for him to be present “at the door” and expressly object to the search when police entered his home. There is no evidence in the record that the police removed him from the “entrance” to avoid his possible objection. Randolph, 547 U.S. at 121, 164 L. Ed. 2d at 227, 126 S. Ct. at 1527.

In New Mexico, Randolph came down while defendant’s case was pending, and the defense put the state on notice of the case. The state, however, apparently never read the case, and it failed to preserve its argument for appellate review when the defense won his motion to suppress under Randolph. State v. Janzen, 2007 NMCA 134, 142 N.M. 638, 168 P.3d 768 (2007):

[*14] Moreover, we disagree with the State’s claim that because Randolph was relatively new at the time of the hearing and because the prosecutor did not fully understand the basis of Defendants’ argument, the State’s failure to properly preserve the issue is somehow excused. We observe that Defendants filed their motion to suppress some three months before the suppression hearing. The motion made clear that Defendants would rely heavily on Randolph in arguing that the evidence should be suppressed. Defendants provided sufficient notice of their arguments, and the State certainly had adequate time to review Randolph and develop an argument in response. We therefore disagree with the State’s assertion that we should somehow relax our preservation rules in the present case due to prosecutorial ignorance. Thus, we decline to address the State’s argument that the search was valid as to Defendant Janzen.