{"id":8480,"date":"2013-10-15T07:02:21","date_gmt":"2013-03-12T08:03:44","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2013-03-12T08:03:44","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=8480","title":{"rendered":"E.D.Mich.: Noting conflict in circuits, co-tenant objecting to consent may leave without police shopping for consent with another"},"content":{"rendered":"

Noting a conflict in the circuits on the scope of Randolph<\/a>, this court holds that a tenant\u2019s refusal to consent is binding on the co-tenant, and he can leave voluntarily without having to stay there to insure the police don\u2019t shop for consent with another. United States v. Phillips, 931 F. Supp. 2d 783 (E.D. Mich. 2013):<\/p>\n

<\/p>\n

The Randolph Court emphasized that “customary social usage” has a substantial bearing on the Fourth Amendment reasonableness analysis in this context. Randolph, 547 U.S. at 121. The Supreme Court applied this analysis to the question of whether “customary social understanding” provides a consenting tenant with sufficient authority to override the objection of a co-tenant. An analysis of customary social usage is equally applicable to the issue of whether a person’s objection to a search remains valid if the person then leaves the residence and a co-tenant consents to the search.<\/p>\n

The Court concludes that customary social understanding supports the view that a person’s objection to a search remains valid under those circumstances. If a resident forbids a third party from entering his home, and if, after the resident leaves, a co-occupant then tells a third party he may enter the premises, there is no clear social custom that would allow the third party to enter. If anything, social custom would point against allowing the third party to enter in these circumstances. It is not typically understood that a co-resident’s objection has been withdrawn simply because the objector has left the premises. Nor is it typically understood that the objector has subordinated his objection to the will of his co-resident who might wish to allow the third party to enter the premises. Under these circumstances, consent to enter a home remains disputed, and as the Randolph Court stated, “nothing in social custom or its reflection in private law argues for placing a higher value on delving into private premises to search for evidence in the face of disputed consent, than on requiring clear justification before the government searches private living quarters over a resident’s objection.” Randolph, 547 U.S. at 120. Therefore, customary social usage supports this Court’s conclusion that a person’s objection to a search of his residence remains in effect unless that person affirmatively withdraws his objection.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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