D.Neb.: Defendant handcuffed in backseat of police car yelling to mother not to consent was a denial of consent under Randolph

A defendant handcuffed in the back of a police car yelling to his mother not to consent, which the officers could hear and ignored, was a sufficient objection under Randolph to bypassing him to ask his mother for consent. Consent suppressed. United States v. Mass, 2011 U.S. Dist. LEXIS 108122 (D. Neb. September 16, 2011):

In this case, Mass, while handcuffed in the back of a police vehicle, was yelling at Gibson not to let the officers inside the residence. The officers heard his objections and Gibson even made light of it to Officer Gassaway. The government argues that in order to have objected to the search, Mass had to have interacted with police directly, to come forward and say “no you cannot search,” which he did not do. The court rejects that argument. “[T]he standard for measuring the scope of a person’s consent under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?” McMullin, 576 F.3d at 815. The court “examine[s] the totality of the circumstances, which includes the language of a person’s consent and his actions during the officers’ search.” Id. (alteration added). While in the present case Mass did not interact with the officers directly, an objectively reasonable person would understand Mass yelling at his mother not to let the officers inside to mean Mass is objecting to the search. Mass was physically present, expressly refusing consent. The court therefore finds the search to be a violation of the Fourth Amendment, and the contents of the search should be suppressed.