{"id":2344,"date":"2008-12-08T00:03:13","date_gmt":"2008-08-08T07:27:28","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-08-08T07:27:28","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=2344","title":{"rendered":"CA7 & circuit split: Randolph<\/em> distinguished; objector arrested and removed and his wife asked for consent"},"content":{"rendered":"

Once an objecting party is removed, it may be permissible under Randolph<\/em><\/a> to ask his spouse for valid consent. Court notes a conflict in the Circuits. United States v. Henderson<\/a>, 536 F.3d 776 (7th Cir. 2008) (2-1):<\/p>\n

Our decision in Groves<\/em> did not address the precise question presented here; the two circuits to have done so are split. In United States v. Hudspeth<\/em>, 518 F.3d 954 (8th Cir. 2008), an en banc majority of the Eighth Circuit determined that Randolph<\/em>‘s holding is case specific and extends no further than its particular facts. In Hudspeth<\/em>, police uncovered child pornography on the defendant’s business computer while executing a search warrant. Believing that Hudspeth’s home computer contained more illicit material, police asked him for consent to search it. Hudspeth refused and was taken to jail. In the meantime, other officers went to Hudspeth’s home and spoke with his wife, Georgia. She refused to allow the officers to search the home after being told why Hudspeth had been arrested. Officers then requested permission to take the home computer, and Georgia asked what would happen if she refused. The officers explained that they would obtain a search warrant and leave an armed guard in the home to ensure no evidence was destroyed. Georgia relented and consented to the seizure and search of the home computer, on which police later discovered more child pornography. Id<\/em>. at 955-56.<\/p>\n

Discussing the effect of Randolph<\/em> on existing consent-search law, the Eighth Circuit noted that Randolph<\/em> relied on two factors to distinguish its holding from Matlock<\/em> and Rodriguez<\/em>: the defendant’s physical presence and immediate objection to the search. Id<\/em>. at 959. Hudspeth was neither present nor immediately objecting when Georgia gave her consent to take the home computer. Accordingly, the Eighth Circuit concluded, “the narrow holding of Randolph<\/em>, which repeatedly referenced the defendant’s physical presence and immediate objection, is inapplicable here.” Id<\/em>. at 960. The court noted the Matlock principle that a tenant who chooses to share premises necessarily relinquishes some privacy and risks that in his absence a cotenant may allow authorities to search–even if he preemptively objected. “[T]he absent, expressly objecting co-inhabitant has assumed the risk that another co-inhabitant might permit the common area to be searched.” Id<\/em>. at 961 (internal quotation marks omitted).<\/p>\n

The Ninth Circuit reached the opposite conclusion in United States v. Murphy<\/em>, 516 F.3d 1117 (9th Cir. 2008). There, the police followed two methamphetamine dealers to a rental-storage facility; they knew the defendant, Stephen Murphy, was living in one of the units with the permission of the renter, Dennis Roper. When police arrived at the unit, Murphy opened the door, and the officers could see an operating meth lab in plain view. After performing a limited protective sweep, the officers asked Murphy for consent to search, which he refused. Murphy was then arrested and taken to jail, and Roper appeared on the scene. Denying any knowledge of the lab, Roper consented in writing to a search of the unit. Citing Randolph<\/em>, Murphy moved to suppress the evidence obtained from the search. The district court denied the motion, but the Ninth Circuit agreed with Murphy and reversed. Id.<\/em> at 1119-20.<\/p>\n

. . .<\/p>\n

Like the Eighth Circuit, we see the contemporaneous presence of the objecting and consenting cotenants as indispensable to the decision in Randolph<\/em>. Indeed, the fact of a conflict between present co-occupants plays a vital role in the Randolph<\/em> majority’s “social expectations” premise; a third party, attuned to societal customs regarding shared premises, would not, “[w]ithout some very good reason,” enter when faced with a disputed invitation between cotenants. Randolph<\/em>, 547 U.S. at 113. The calculus shifts, however, when the tenant seeking to deny entry is no longer present. His objection loses its force because he is not there to enforce it, or perhaps (if we understand the Court’s rationale correctly) because the affront to his authority to assert or waive his privacy interest is no longer an issue. As between two present but disagreeing residents with authority, the tie goes to the objector; police may not search based on the consent of one in the face of “a physically present inhabitant’s express refusal of consent” to search. Id<\/em>. at 122. We do not read Randolph<\/em> as vesting the objector with an absolute veto; nothing in the majority opinion suggests the Court was creating a rule of continuing objection.<\/p>\n

Neither the Eighth nor the Ninth Circuit considered the limiting effect of Justice Breyer’s concurrence on the scope of the majority opinion. As we have noted, Justice Breyer joined the other four members of the majority with the understanding that the Court’s opinion was “case specific” and “does not apply where the objector is not present and objecting.” Id<\/em>. at 126-27 (Breyer, J., concurring) (internal quotation marks omitted). That, and the specific limiting language in the majority opinion itself, convince us that Randolph’s holding ought not be extended beyond the circumstances at issue there. See id<\/em>. at 106 (“We hold that, in the circumstances here at issue, a physically present co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him.”) (emphasis added).<\/p>\n

The Ninth Circuit’s decision in Murphy<\/em> essentially reads the presence requirement out of Randolph<\/em>, expanding its holding beyond its express terms and giving rise to many questions with no readily identifiable principles to turn to for answers. If an objecting co-occupant’s presence is not required, are there any limits to the superiority or duration of his objection? What circumstances (if any) operate to reinstate a co-occupant’s authority to consent to a search? May an occupant arrested or interviewed away from the home preemptively object to a police request to search and effectively disable his co-occupants from consenting even in his absence? Murphy<\/em>‘s answer–that the objecting occupant’s objection is binding until he, and only he, objectively manifests his consent to a search–ignores Randolph<\/em>‘s social-expectations foundation. A prior objection by an occupant who is no longer present would not be enough to deter a sensible third party from accepting an invitation to enter by a co-occupant who is present with authority to extend the invitation. Under these circumstances even an initially reluctant guest would feel confident he was not breaking any unwritten social rules by entering. Just as a tenant’s mere presence is not enough to override his cotenant’s consent, see Rodriguez<\/em>, 497 U.S. at 170 (tenant asleep in the next room), so too his objection is not enough if he is absent from the later entry by authorities with the voluntary consent of his cotenant.<\/p>\n

Our dissenting colleague suggests that this view of social expectations is Hobbesian: “Only in a Hobbesian world would one person’s social obligations to another be limited to what the other is present and able to enforce.” Infra<\/em> p. 22. This rather overstates our analysis, which is limited to the present, narrow context of an outsider confronted with a contemporaneous disagreement between two residents with equal authority to consent to entry. In this situation, a visitor who relies on the express permission given by one resident after the departure of the objecting resident is not necessarily opportunistic, nor always a social outlaw. True, “adjourn[ing] to a nearby coffee shop rather than risk[ing] the wrath of the absent tenant” is one way to resolve the dilemma, id<\/em>., but it is hardly the only socially acceptable option. See Randolph<\/em>, 547 U.S. at 129-30 (Roberts, C.J., dissenting) (“The fact is that a wide variety of differing social situations can readily be imagined, giving rise to quite different social expectations. … The possible scenarios are limitless, and slight variations in the fact pattern yield vastly different expectations about whether the invitee might be expected to enter or to go away.”). We know of no social convention that requires the visitor to abstain from entering once the objector is no longer on the premises; stated differently, social custom does not vest the objection with perpetual effectiveness.<\/p><\/blockquote>\n

This is an issue to be resolved en banc by the Seventh Circuit or a cert grant may be brewing.<\/p>\n","protected":false},"excerpt":{"rendered":"

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