CAAF: Matlock and Randolph must be read together; CA9 rejected, CA7,8 followed

Appellant’s wife consented to a search of defendant’s computer looking for pictures of video voyeurism. He did not show that he was removed from the premises so he could not object to the search. It was valid under Randolph. United States v. Weston, 67 M.J. 390 (C.A. A.F. 2009), rev’g 66 M.J. 544 (N-M. Ct. Crim. App. 2008):

Appellant urges us to extend the holding of Randolph and adopt the reasoning of the United States Court of Appeals for the Ninth Circuit in United States v. Murphy, where the court discounted the significance of the physical presence and immediate challenge of the party not consenting to the search. 516 F.3d 1117, 1123-24 (9th Cir. 2008). Appellant further argues that we should look more generally to society’s widely shared social expectations in determining the reasonableness of consent searches. We decline to do so.

While “widely shared social expectations” underlie the reasoning in Randolph, 547 U.S. at 111 (“The constant element in assessing Fourth Amendment reasonableness in the consent cases, then, is the great significance given to widely shared social expectations …”), the Supreme Court specifically declined to overrule Matlock and drew the line with the physical presence at the threshold. See id. at 120-22. We decline to adopt the Ninth Circuit’s reasoning and thus do not expand the holding of Randolph at the expense of Matlock.

Where one party has joint access and control to a property and voluntarily consents to a search, the warrantless search is reasonable. Rather than Murphy, we find more persuasive the approach adopted by the United States Courts of Appeals for the Seventh and Eighth Circuits, which held that Randolph did not “permanently disabl[e] [a cotenant’s] shared authority to consent to an evidentiary search of her home.” United States v. Henderson, 536 F.3d 776, 777 (7th Cir. 2008); see United States v. Hudspeth, 518 F.3d 954, 960-61 (8th Cir. 2008).