CA4: Randolph requires the objecting defendant be actually present; objecting elsewhere not enough.

Randolph requires the objecting defendant be actually present. Objecting elsewhere not enough. The court thus joins CA7 and CA8. United States v. Shrader, 675 F.3d 300 (4th Cir. 2012)

Shrader urges us, however, to expand the holding of Randolph and conclude that his earlier refusal vitiates his aunt’s later consent, even though he was absent from the premises. Physical presence may not be dismissed as a mere function of the facts of Randolph, however. That presence reflected the “widely shared social expectations” that informed the Court’s ruling. Randolph, 547 U.S. at 111. The Court noted that “a caller standing at the door of shared premises would have no confidence that one occupant’s invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, ‘stay out.'” Id. at 113; see also id. at 114 (“[T]he co-tenant wishing to open the door to a third party has no recognized authority in law or social practice to prevail over a present and objecting co-tenant.”) The Court plainly gave careful thought to the scope of the physical presence requirement that it articulated:

[W]e are drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out. This is the line we draw, and we think the formalism is justified. Id. at 121.

This case falls squarely on the permissible side of the line. Because Shrader was absent from the premises, and there was no evidence that he was arrested for the purpose of nullifying his refusal to consent to the search, his aunt’s consent provided adequate permission for the police to search the house, notwithstanding his earlier objection.

In so holding, we join the Seventh and Eighth Circuits in adhering to the clearly drawn rule of Randolph and giving effect to the Supreme Court’s explicit requirement that the defendant be physically present to dispute his cotenant’s consent. See United States v. Henderson, 536 F.3d 776 (7th Cir. 2008); United States v. Hudspeth, 518 F.3d 954 (8th Cir. 2008) (en banc). We decline to adopt the more expansive view of the Ninth Circuit which permits a defendant’s refusal to operate indefinitely, “barring some objective manifestation that he has changed his position and no longer objects.” United States v. Murphy, 516 F.3d 1117, 1125 (9th Cir. 2008). This latter approach raises practical problems. How broadly is constructive knowledge of a suspect’s prior refusal to consent to be imputed to other officers? Must a suspect expressly indicate that he has changed his mind in the future, or may that be assessed from the totality of the circumstances? Is there some point at which the passage of time renders a prior objection inoperative? The Murphy interpretation of Randolph would involve courts in such questions, diverting attention from the basic social expectations that underlie not only the opinion in Randolph, but the larger corpus of Fourth Amendment jurisprudence. Careful observance of the requirement that an objecting cotenant be physically present thus not only shows fealty to the Supreme Court’s precedent, but also focuses police and courts on the customary norms that form the basis for this area of law.