{"id":4214,"date":"2011-01-11T14:04:26","date_gmt":"2010-05-24T08:33:16","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-05-24T08:33:16","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4214","title":{"rendered":"NH: Cotenant with somebody on probation or parole is subject to searches under the prior consent"},"content":{"rendered":"

Defendant and his girlfriend lived together in a hotel room. She was on probation and had previously signed blanket consent to search. When the PO came to the motel room to search, defendant did not specifically object to it. Randolph<\/a> was not violated by his body language when he did not specifically object. State v. Tarasuik<\/a>, 160 N.H. 323, 999 A.2d 409 (2010):<\/p>\n

The defendant argues that he presented non-verbal cues that he was uncomfortable with the search, and if either officer had asked him for consent to search, he would have refused. Even if we assume that the defendant’s body language implied that he did not consent to the search, the defendant’s argument under Randolph fails. Randolph<\/a> applies only when an occupant \u201cexpressly refuses to consent,\u201d which did not occur here. Id. at 106. Additionally, the Supreme Court has acknowledged that officers do not have to ask all potential objectors whether they are willing to consent to the search:<\/p>\n

[W]e have to admit that we 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.<\/p><\/blockquote>\n

Id. at 121. Here, the officers were not required to ask the defendant for his permission to search the hotel room.<\/p><\/blockquote>\n

[The larger question unanswered here is whether a cotenant of a person on probation or parole is subject to searches under the probationer’s or parolee’s consent or can the cotenant veto consent. This case answers this question purely as a matter of pre-given third party consent. If the defendant was going to object, it had to be express. If, however, he did expressly object, was this good enough under Randolph<\/a>? In Randolph<\/a>, the defendant refused consent, effectively vetoing it before<\/em> the police asked his girlfriend. If she grants consent first and he is found there, is his objection valid at all? Maybe not, but, again, this case does not answer that precise question.]<\/p>\n","protected":false},"excerpt":{"rendered":"

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