{"id":1545,"date":"2007-11-25T16:44:09","date_gmt":"2007-11-22T16:48:55","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-11-22T17:06:55","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1545","title":{"rendered":"Brooklyn court distinguishes Randolph<\/em> because defendant’s removal after his denial of consent was arrest, not just to find another person to consent"},"content":{"rendered":"

Defendant was arrested and asked for consent to search his apartment for a gun which he allegedly pointed at his landlord, which he denied. He was taken in for questioning. His wife was called to come and get their child that an aunt had when defendant was taken away. When she got there, she granted consent, and she could effectively consent when presented with facts by the police, even though defendant had refused consent before leaving. Randolph<\/em><\/a> is [incredibly] distinguished. People v. Olmo, 2007 NY Slip Op 27474, 2007 N.Y. Misc. LEXIS 7652 (Kings Co. November 19, 2007):<\/p>\n

The distinction in Olmo<\/em> is that defendant was not actually present when his wife gave her consent to search their apartment because he had already been taken to the precinct to begin processing his lawful arrest. The question for this Court is whether Olmo<\/em> presents a necessary application of Randolph<\/em>, requiring suppression, or rather would amount to an unwarranted extension of Randolph<\/em>, inappropriate for a trial court to make, especially in New York State, which has traditionally upheld the right of the police to rely on a co-occupant’s consent. … The answer turns on whether the Randolph<\/em> decision necessarily elevated the importance of defendant’s refusal to consent at the entrance to his apartment–enough to trump the subsequent consent of his companion, who returned home to the waiting police while defendant remained at the precinct where he had just been taken. <\/p>\n

I conclude that, until and unless a controlling appellate authority should subsequently extend or apply Randolph<\/em> to an Olmo<\/em> situation, Randolph does not require suppression. The rationale of the Randolph<\/em> decision was based on society’s customary expectations regarding privacy in one’s home. And the Randolph<\/em> Court was emphatic about avoiding unseemly confrontations between disputing occupants, when both are physically present at the same time. The facts in Olmo<\/em> presented no such risk. Here, I see no good reason in law, custom, policy or precedent why defendant’s wife should not, when she returned home and learned about what happened, have the right to cooperate with the police to have a firearm removed as expeditiously as possible from the home she also shared with a young child. I hold that, as long as the police had a valid purpose in removing defendant from his residential building apart from avoiding his objection to the search, his wife retained her authority to consent and the police could reasonably rely [on] it.<\/p><\/blockquote>\n

Comment:<\/em> This case cannot be so readily distinguished from Randolph<\/em>. It can be assumed, based on the crime victim’s report, that the police had probable cause for menacing the victim with a gun. After all, that was the basis for taking him in. He refused consent, and then they asked the wife when she got there for her consent. The effort made to distinguish Randolph<\/em> is lame and convoluted. This should be reversed on appeal.<\/p>\n","protected":false},"excerpt":{"rendered":"

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