CA8 en banc avoids applying Randolph to computer search where defendant refused consent before his wife was asked because he was not present and objecting

Can Randolph be defeated merely by removing the defendant refusing to consent? In the Eighth Circuit, yes. The Eighth Circuit en banc held (8-3) that an owner of a computer who refused consent did not prevent the officers from asking his wife for consent under Randolph because the defendant was not present, what it found to be a critical distinction. United States v. Hudspeth, 518 F.3d 954 (8th Cir. 2008) (en banc) (8-3):

Second, unlike Randolph, the officers in the present case were not confronted with a “social custom” dilemma, where two physically present co-tenants have contemporaneous competing interests and one consents to a search, while the other objects. Instead, when Cpl. Nash asked for Mrs. Hudspeth’s consent, Hudspeth was not present because he had been lawfully arrested and jailed based on evidence obtained wholly apart from the evidence sought on the home computer. Thus, this rationale for the narrow holding of Randolph, which repeatedly referenced the defendant’s physical presence and immediate objection, is inapplicable here.

Third, the Fourth Amendment’s reasonableness requirement did not demand that the officers inform Mrs. Hudspeth of her husband’s refusal. This conclusion is supported by Matlock and Rodriguez, where law enforcement officers bypassed the defendants against whom the evidence was sought, although the defendants were present and available to participate in the consent colloquy. The officers instead sought the consent of an authorized co-tenant. See Rodriguez, 497 U.S. at 180; Matlock, 415 U.S. at 166.

Comment: Whether the objecting defendant is actually present is, to me, a distinction without a difference, and this is a question that the Supremes should take up. The person with an expectation of privacy said “no,” so the police take him away and then ask his wife under the threat of seizing or freezing the house pending getting a search warrant [which here was inevitable]. Therefore, in the Eighth Circuit, all the police have to do is arrest and remove the objecting defendant and ask somebody else for consent who does not know that the defendant already objected.

This is the Eighth Circuit, which is not far behind the Fourth.