When officers came to defendant’s house, he said “Get the fuck out of my house.” The police removed him from the premises and then sought consent from his wife, and this violated Randolph–the police cannot simply remove the objecting party and then seek consent from the co-tenant in his absence. “His rather indelicate instruction for them to leave his home surely included a direction that they not only depart but refrain from searching the residence.” United States v. Henderson, 2005 U.S. Dist. LEXIS 44038 (N.D. Ill. November 29, 2006) [Lexis shows this as a 2005 case, but it is obviously a 2006 case because it cites several 2006 authorities, one as late as August 2006]:
While the motion to suppress was being briefed, the United States Court of Appeals for the Sixth Circuit issued its opinion in United States v. Hudspeth, 459 F.3d 922 (August 25, 2006), in which the defendant, who was not present at his residence, refused consent to search the residence. The police went to the home and obtained a voluntary consent to search by the defendant’s spouse, and proceeded to discover incriminating evidence of child pornography on the defendant’s home computer. The Eighth Circuit held that, although Randolph does not directly address the situation in which a co-tenant who refuses consent is not physically present at the search, “the same constitutional principles underlying the Supreme Court’s concerns in Randolph apply regardless of whether the non-consenting co-tenant is physically present at the residence, outside the residence in a car, or, as in our case, off-site at his place of employment. We believe that the Supreme Court has made it clear that the police must get a warrant when one co-occupant denies consent to search.” Id. at 922. The court also noted in passing that “to some degree, the case for respecting the denial of consent by a non-present occupant is stronger than the refusal of the physically-present occupant,” because a physical presence might require the police to enter a dwelling to protect a non-consenting spouse. Id.
In the instant case, this court finds the reasoning of the Eighth Circuit in Hudspeth to be persuasive. Indeed, the facts are even stronger for defendant than for Mr. Hudspeth. Defendant was physically present in his own home when he refused consent to the police. His rather indelicate instruction for them to leave his home surely included a direction that they not only depart but refrain from searching the residence. Having been denied permission to search defendant’s home, under the teaching of Randolph and Hudspeth the police acted unreasonably by conducting a search based upon the later consent of the co-tenant, Patricia, after defendant had been removed from the premises.
In its final brief, the government attempts to distinguish Hudspeth, but in doing so merely reenforces the conclusion that the search of defendant’s home was unreasonable. First, the government argues that unlike Hudspeth, in which the police failed to advise the defendant’s wife of his refusal to consent to search, “that is not the case here ….” But there is no indication in the instant record that Patricia was informed of defendant’s statement, and the Hudspeth court did not base its rationale on any deception by the officers.
District Court affirms Magistrate Judge’s finding of lack of consent because the little bit of audible tape that was available supported the Magistrate Judge’s conclusion that the defendant did not knowingly consent because he did not speak English well enough to know what was going on. Government’s objections to the R&R are overruled, and the motion to suppress is granted. United States v. Trinidad, 2006 U.S. Dist. LEXIS 86971 (D. Mont. November 29, 2006).*
Consent was granted early into a traffic stop before the computer check even came back. The officer looked under the hood and found non-factory screws, and concluded there was a hidden compartment there. Consent was valid. United States v. Palomino, 2006 U.S. Dist. LEXIS 87067 (S.D. Tex. November 29, 2006).*
Pepper spraying a plaintiff who was walking away from officers precluded summary judgment for the officers. There was no showing that plaintiff was armed or posed a danger. Frederick v. Hanna, 2006 U.S. Dist. LEXIS 87037 (W.D. Pa. December 1, 2006).*
Officers arrested defendant at a motel room after she admitted possession of an allegedly stolen truck, claiming that she had permission to drive it. She did not have the keys on her, and the officers asked her boyfriend to look in the room for the keys. He could not find them, and consented to an officer looking, and the officer found drug paraphernalia. The consent was valid. Shuler v. State, 282 Ga. App. 706, 639 S.E.2d 623 (December 4, 2006).*
