{"id":2392,"date":"2008-12-08T14:01:04","date_gmt":"2008-08-22T11:53:39","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-08-24T12:02:53","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=2392","title":{"rendered":"CA7: Parsing Randolph<\/em> again: Defendant was elsewhere when he refused"},"content":{"rendered":"

Defendant was asked for consent for his house that he shared with his girlfriend where both were on the lease, and he was asked elsewhere. This did not fit within Randolph<\/em><\/a> because defendant was not removed so the police could ask the girlfriend in his absence. United States v. Reed<\/a>, 539 F.3d 595 (7th Cir. 2008):<\/p>\n

As the district court properly concluded, Reed’s case does not fall within the ambit of Randolph<\/em>. First, Reed was absent from the residence at the time Foster consented and the search was conducted. Reed’s absence was a result of a valid arrest, and the police did not execute the arrest for the purpose of removing Reed from the area when the police obtained Foster’s consent. See United States v. Wilburn<\/em>, 473 F.3d 742, 745 (7th Cir. 2007) (concluding that the case did not fall within the narrow line of Randolph<\/em> where the defendant was not physically present when consent was obtained and he was not removed “from the area to avoid hearing him invoke an objection to the search”). See also United States v. DiModica<\/em>, 468 F.3d 495, 499 (7th Cir. 2006) (concluding that there was no Fourth Amendment violation where consent to search was obtained from a wife after her husband was removed from the home during the course of a valid arrest); United States v. Parker<\/em>, 469 F.3d 1074, 1078-79 (7th Cir. 2006) (holding that the co-tenant’s consent to search a house was independent of defendant’s arrest). Further, it is clear from the record that Foster voluntarily consented to the search of 4009 Bonfield, as evinced by her consultation with her sister and an attorney.<\/p>\n

Moreover, had Reed been standing in the doorway and refused to consent to a search because it was not his place, only to be overridden by Foster’s subsequent consent, we might have a closer question under Randolph<\/em>. But we need not answer that question because unlike the defendant in Randolph<\/em>, Reed was not present at the searched residence. <\/p><\/blockquote>\n

Comment:<\/em> This could have been a sufficient alternative ground if the court wanted to go there.<\/p>\n","protected":false},"excerpt":{"rendered":"

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