Proper interpretation of Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), specifically whether a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously-stated objection, while physically present, to a warrantless search is a continuing assertion of 4th Amendment rights which cannot be overridden by a co-tenant.
Lower court opinion: People v. Fernandez, 208 Cal. App. 4th 100, 145 Cal. Rptr. 3d 51 (Cal. Ct. App. 2012)
Clarification of Randolph is clearly warranted, as lower courts have split into two camps on the question presented:
Courts in the first camp have held that if a tenant who objects to a search is later arrested and removed from the premises, his or her objection remains in force, and is not overridden by the consent of a still-present co-tenant. E.g., United States v. Murphy, 516 F.3d 1117, 1124-25 (9th Cir. 2008) [although the result in this case may be no more than an application of Randolph‘s suggestion, 547 U.S. at 121, that a pretextual arrest to remove the objecting c0-tenant could invalidate another co-tenant’s consent: see United States v. Brown, 563 F.3d 410, 417 (9th Cir. 2009)]; Richardson v. City of Antioch, 722 F.Supp.2d 1133, 1140-41 (N.D. Cal. 2010); Martin v. United States, 952 A.2d 181, 187-88 (D.C. 2008); State v. Caster, 234 P.3d 1087, 1097 (Or. App. 2010).
Courts in the second camp have held that after the objecting tenant is arrested and removed, a co-tenant’s consent to a search overrides the absent tenant’s objection. E.g., United States v. Henderson, 536 F.3d 776 (7th Cir. 2008); United States v. Hudspeth, 518 F.3d 954 (8th Cir. 2008) (en banc).
Fernandez’s cert petition and California’s statement in opposition both put Wisconsin in the second camp, citing State v. St. Martin, 2011 WI 44, 334 Wis. 2d 290, 800 N.W.2d 858. But note that St. Martin is factually different than Fernandez. Fernandez objected to the police entry at the door, and it was only after he was arrested and removed from the scene that the co-tenant consented to a search. 208 Cal. App. 4th at 106. St. Martin, by contrast, did not object when his co-tenant initially let the police into the home; instead, after he was arrested and after his the co-tenant had already consented to a search, though while he was still at the scene, sitting in a police van, he refused consent. 334 Wis. 2d 290, ¶¶9, 22-23. That he was merely “at the scene” (in custody in the police van) as opposed to on the threshold when he objected was not enough to make him “present” for purposes of Randolph in the view of the majority which, as discussed in detail here, read Randolph to require the co-tenant to object at the threshold of the door to the house. 334 Wis. 2d 290, ¶¶20-27.
The reasoning and result in this sort of case often turns on slight variations in the facts, and these factual differences mean the Court’s decision here may or may not affect St. Martin‘s parsimonious reading of Randolph. Either way, though, the decision will clarify an important question left unresolved by Randolph.
Update (11/7/13): Readers following this issue might be interested in this post by Orin Kerr and Rory Little’s response to Kerr.
Further update (11/17/13): And here’s Rory Little’s post about the oral argument held on 11/13/13.
