CA3: Defendant’s live-in girlfriend validly consented, and Randolph doesn’t apply to an absent “objector”

Defendant’s girlfriend with whom he lived mistakenly believed she was his wife, but he wasn’t yet divorced from his first wife. Nevertheless, she had common authority to consent to a seizure and search of his computers. He was not present so Randolph-type revocation did not apply. Defendant’s claim that the government acted unreasonably in waiting three months to search the computer was undercut by the fact he didn’t ask for return of the hard drives for 18 months. United States v. Stabile, 633 F.3d 219 (3d Cir. 2011)*:

Here, Deetz had authority to consent and voluntarily consented. Deetz had common authority to consent to a search of the house because, as a cohabitant, she mutually used the property along with Stabile and exercised joint access and control over the house. See Matlock, 415 U.S. at 172 n.7. Deetz’s mistaken belief that she was married to Stabile does not alter the analysis because an unmarried cohabitant has authority to consent to a search of shared premises. See id. at 176. Finally, we note that at the time Deetz granted consent, Stabile was not present. Stabile’s absence distinguishes this case from Georgia v. Randolph, which applies only when a “physically present resident” refuses consent. 547 U.S. at 120. Therefore, because Deetz exercised her access and control over the premises absent any contemporaneous refusal by a co-resident, she had authority to consent at the time of the search. [¶] We also conclude that Deetz’s consent was voluntary. …

[Note: Of course an absent defendant is going to object after evidence of a crime is found. Randolph would be a nullity with the exception that the defendant sought to impose here.]