{"id":7527,"date":"2012-10-02T14:46:54","date_gmt":"2012-08-04T10:09:21","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-08-04T10:09:21","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=7527","title":{"rendered":"Cal.2: Police can remove defendant and ask for consent from co-tenant; rejecting 9th Cir. authority"},"content":{"rendered":"

Defendant was removed from the premises and then his co-tenant was asked for consent. The court disagrees with the Ninth Circuit in United States v. Murphy, 516 F.3d 1117 (9th Cir. 2008), as have most other courts. People v. Fernandez<\/a>, 208 Cal. App. 4th 100, 145 Cal. Rptr. 3d 51 (2d Dist. 2012):<\/p>\n

We believe that the line we draw is consistent with that drawn by the Supreme Court in Randolph. As in Randolph, the line we draw is a clear one, distinguishing between cases in which a defendant is present and objecting to a search, and those in which a defendant has been lawfully arrested and thus is no longer present when a cotenant consents to a search of a shared residence. It thus preserves the \u201csimple clarity of complementary rules\u201d established by Randolph. (Randolph, supra, 547 U.S. at p. 121.)<\/p>\n

Further, our rule preserves the law enforcement prerogatives recognized by Randolph. As we have said, Randolph expressly reaffirmed the holdings of Matlock and Rodriguez, noting that \u201cit would needlessly limit the capacity of the police to respond to ostensibly legitimate opportunities in the field if we were to hold that reasonableness required the police to take affirmative steps to find a potentially objecting co-tenant before acting on the permission they had already received.\u201d (Randolph, supra, 547 U.S. at p. 122.) We believe that requiring officers who have already secured the consent of a defendant’s cotenant to also secure the consent of an absent defendant would similarly and needlessly limit the capacity of law enforcement to respond to \u201costensibly legitimate opportunities in the field.\u201d (Ibid.)<\/p>\n

We note, as the Seventh Circuit did in Henderson, that the rule advocated by defendant and adopted by the Ninth Circuit in Murphy permits \u201ca one-time objection\u201d by one cotenant to \u201cpermanently disable the other [co-tenant] from ever validly consenting to a search of their shared premises.\u201d (Henderson, supra, 536 F.3d at p. 783.) Like Henderson, we think such a rule \u201cextends Randolph too far.\u201d (Ibid.)<\/p><\/blockquote>\n

Every circuit seems to have rejected Murphy, so the Ninth Circuit en banc may overrule it.<\/p>\n","protected":false},"excerpt":{"rendered":"

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