N.-M. Ct. App. en banc reverses Weston; husband’s objection to consent at CID office did not prevent CID from asking wife without telling her

The Navy-Marines Court of Appeals en banc reverses United States v. Weston, 65 M.J. 774 (N.-M. Ct. App. 2007), [somehow] distinguishing Randolph on its facts, recognizing that its narrow interpretation is part of a split in the Circuits. Husband’s objection to consent at CID office did not prevent CID from asking his wife without telling her that he refused. They had voluntarily come to the CID office for an interview, and they were separated. He refused to consent, so the investigator went to the other room and asked his wife without telling her he had refused. The court found critical that the objection in Randolph occurred at home and Randolph’s wife heard it. The court separately finds inevitable discovery because the investigation had progressed to the point that the evidence would have been found anyway. United States v. Weston, 66 M.J. 544 (N.-M. Ct. App. 2008) (en banc):

In the instant case, we note that the appellant and his wife were not arrested but rather voluntarily drove themselves to CID in order to provide what they perceived as proof of his innocence. There is no evidence that CID agents purposefully drew the appellant away from his home in order to deny him the opportunity to object to a search at the threshold. CID had a legitimate investigatory interest in speaking with the appellant and his wife about the victim’s allegations. We further note that the CID agents twice contacted the duty trial counsel to verify that they were proceeding in a lawful manner. Finally, we note that separating potential witnesses for questioning is a routine police practice. Having carefully reviewed the record, we find no evidence that the CID agents removed the appellant from his home or that they separated him from his wife at the CID office for an improper ulterior motive.

The appellant also asserts in his brief that Mrs. Weston was “unaware that her husband had refused consent” when she granted her consent to the search of her home. Appellant’s Brief at 7. The implication of the appellant’s argument is that CID’s failure to inform his wife somehow rendered her consent involuntary. We disagree.

. . .

It is important to note that the majority opinion in Randolph declared the continued viability of Matlock and Rodriguez. It is also important to observe that, unlike Randolph, the CID agents in the instant case were not faced 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.” The social custom dilemma in Randolph arose from an open and very public verbal dispute between a husband and wife at the threshold of their home and in the presence of the police. This is a far different situation from the case at bar where the appellant and his wife were interviewed separately and did not engage in a public dispute on their doorstep.

The lack of an open and public dispute between the appellant and his wife significantly diminishes the social custom rationale articulated in Randolph. There is no widely-shared social expectation that a reasonable third party, invited into a home by one of the residents, would decline that invitation merely because he or she was aware that an absent co-tenant objected to their presence. While some reasonable people might think better of visiting a residence if they knew an absent co-tenant did not want them, other reasonable people would have no such qualms. Consequently, it cannot be said there exists a widely-shared social expectation that the reasonable invitee would not accept the invitation. In this regard, we note that Justice Breyer in his concurrence expressly observed that the Court’s opinion “does not apply where the objector is not present and objecting” and that “were the circumstances to change significantly, so should the result.” We conclude that the Court in Randolph was carefully carving out a narrow exception to the general rule of “assumed risk” in third-party consent cases stated in Matlock.

Our narrow interpretation of Randolph appears to be shared by our superior court as well as a majority of federal courts that have considered Randolph in a variety of factual scenarios. We acknowledge, however, that only two of the federal circuit cases involved defendants who, like the appellant, actively objected to the search of their home. These circuit courts split on the issue.

Comment: I don’t buy this for a minute, and I certainly hope that the Court of Appeals for the Armed Forces fixes this on Randolph. (The court is wrong on Randolph and right on inevitable discovery.)