v. People ( 2019 )

Opinions of the Colorado Supreme Court are available to the
public and can be accessed through the Judicial Branch’s
homepage at http://www.courts.state.co.us. Opinions are also
posted on the Colorado Bar Association’s homepage at
http://www.cobar.org.
ADVANCE SHEET HEADNOTE
December 23, 2019
2019 CO 108
No. 17SC123, Williams v. People—Searches and Seizures—Persons Giving
Consent—Objecting Joint Occupants.
Consent by one resident of jointly occupied premises generally suffices to
justify a warrantless search. But Georgia v. Randolph, 547 U.S. 103 (2006), carved
out a narrow exception to this rule: Consent by one resident is insufficient when
another resident is physically present and objects to the search.
This case requires the supreme court to decide whether the Randolph
exception applies where the defendant’s wife provided police officers consent to
enter the residence, and the defendant, though physically present, did not object
until after the officers had already entered and were in the process of collecting
drugs and paraphernalia. The court concludes that the Randolph exception does
not apply. The Randolph exception applies only if, at the time the officers receive
an occupant’s consent, a co-occupant who is physically present on the premises
objects. Accordingly, the officers were not required to heed the defendant’s
request to leave and did not violate his Fourth Amendment rights.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2019 CO 108
Supreme Court Case No. 17SC123
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 14CA1547
Petitioner:
Kirk Thomas Williams,
v.
Respondent:
The People of the State of Colorado.
Judgment Affirmed
en banc
December 23, 2019
Attorneys for Petitioner:
Megan A. Ring, Public Defender
Andrea R. Gammell, Deputy Public Defender
Denver, Colorado
Attorneys for Respondent:
Philip J. Weiser, Attorney General
Rebecca A. Adams, Senior Assistant Attorney General
Denver, Colorado
JUSTICE SAMOUR delivered the Opinion of the Court.
¶1 It is axiomatic that consent by someone who possesses common authority
over jointly occupied premises generally suffices to justify a warrantless search. 1
But in Georgia v. Randolph, 547 U.S. 103 (2006), the Supreme Court carved out a
narrow exception to this rule: Consent by one resident is insufficient when another
resident is physically present and objects to the search.2 Id. at 122–23. The Court
in Randolph drew a fine line for the sake of clarity, practicality, and
administrability: If a resident is present at the threshold of the premises and objects
as officers propose to conduct a search, a co-occupant’s consent does not suffice;
however, if the objecting resident does not take part in the threshold colloquy
between the officers and his co-occupant, he “loses out.” Id. at 121. Adhering to
this deliberately formalistic rule, in Fernandez v. California, 571 U.S. 292 (2014), the
Court declined to apply the Randolph exception where the defendant was initially
present and objected to the police entering his apartment but neither was present
nor objected approximately an hour later when his co-occupant consented to a
search. Id. at 294–96.
1By “common authority,” we mean mutual use of the property by individuals who
generally have joint access or control for most purposes. See United States v.
Matlock, 415 U.S. 164, 171 n.7 (1974).
2 Throughout this opinion, we use “resident,” “occupant,” and “tenant”
interchangeably to refer to individuals with common authority over premises.
2
¶2 This case is the flip side of the Fernandez coin. Whereas Fernandez dealt with
a defendant who objected before his co-occupant and officers engaged in the
colloquy regarding consent, we deal here with a defendant who did not object
until after his co-occupant had already provided officers consent and they were
inside his residence.
¶3 We reach the same result the Court did in Fernandez and conclude that the
Randolph exception does not apply and that the police officers who entered Kirk
Thomas Williams’s home did not violate his rights under the Fourth Amendment.
Leonora Williams, Mr. Williams’s wife, provided the officers consent and
permitted them to enter so that they could take possession of drugs and drug
paraphernalia she had found in his travel bag and concealed in the garage.
Although Mr. Williams was physically present on the premises, he did not object
as his wife allowed the officers inside. His subsequent objection, after the officers
had already entered his home and were in the process of taking possession of the
drugs and paraphernalia, could not vitiate her previously given consent.
Therefore, the officers were not required to heed his request to leave.
¶4 The court of appeals correctly upheld the district court’s ruling denying Mr.
Williams’s motion to suppress the evidence collected inside his home. But it did
so for different reasons than those we articulate in this opinion. Therefore, we
affirm its judgment on other grounds.
3
I
¶5 After Mr. Williams returned home from a trip to North Dakota, his wife
went through his overnight travel bag and discovered what she believed to be
drugs and paraphernalia. She took the contraband items, placed them inside a
soap dish, and hid the soap dish in the garage of their home. Mrs. Williams later
called the Fort Collins Police Department and met with one of its officers, Officer
Thomas Colvin, at her church. She told him that she wanted the police to collect
the drugs and paraphernalia she had taken from her husband’s travel bag and
stored in the garage. Officer Colvin requested assistance, and Officers Jesse Reed
and Stephan Sparacio responded. The three officers then accompanied Mrs.
Williams home.
¶6 Upon arriving home, Mrs. Williams provided consent and allowed the
officers to enter so they could take possession of the drugs and paraphernalia. At
Mrs. Williams’s request, Officer Reed followed her through the house to the
garage. There, Mrs. Williams retrieved the soap dish she had stashed away and
handed it to him. Meanwhile, Officer Colvin continued walking down the
entrance hallway for about ten feet, at which point he saw the kitchen, the living
room, and an open space dividing the two. He headed toward the living room
because he saw Mr. Williams there, sitting on a couch, eating a bowl of cereal, and
watching television.
4
¶7 Officer Colvin viewed his job as keeping the peace between Mr. and Mrs.
Williams. Similarly, Officer Sparacio focused on making sure the situation
remained calm and safe. The officers were concerned because Mr. and Mrs.
Williams were both home and there seemed to be some conflict between them.
¶8 When Officer Colvin entered the living room, he advised Mr. Williams that
officers were conducting a “civil standby” and told him to remain seated.3 At
some point, Mr. Williams told the officers to leave his home.
¶9 Shortly after Officers Colvin and Sparacio contacted Mr. Williams, Mrs.
Williams and Officer Reed returned from the garage. Officer Reed handed Officer
Colvin the soap dish Mrs. Williams had retrieved. Upon opening it, Officer Colvin
discovered it contained methamphetamine and a glass pipe. The officers arrested
Mr. Williams, removed him from the residence, and placed him in a patrol car.
Officer Colvin estimated that “within five minutes, things were pretty much
done.”
¶10 Following a pretrial suppression hearing, the district court issued a written
order denying Mr. Williams’s request to exclude the methamphetamine and the
3It is undisputed that the officers were not conducting a civil standby. But Officer
Colvin apparently felt that it would be quicker, easier, and wiser if he avoided
getting into the real reason for their presence in the home.
5
pipe from the trial. A jury subsequently found Mr. Williams guilty of possession
of more than two grams of methamphetamine, a level 4 drug felony. The district
court then sentenced Mr. Williams to one year in community corrections. Mr.
Williams appealed, and a division of the court of appeals affirmed.
¶11 As relevant here, a majority of the division agreed with the district court’s
determination that the search that yielded the methamphetamine and the pipe was
not a search within the meaning of the Fourth Amendment because Mrs. Williams
had a legitimate interest in removing the contraband from her home, acted on her
own initiative and not as an agent of the state, and the officers’ actions did not
exceed the scope of her private search. People v. Williams, No. 14CA1547,
¶¶ 15–16 (Jan. 5, 2017). The division majority felt it was unclear whether the
exception in Randolph applied because Mr. Williams asked the officers to leave after
they were already inside the house pursuant to his wife’s consent. Id. at ¶ 17. But
since it concluded that the officers entered the residence with Mrs. Williams’s
consent, did not conduct a search inside the house, and the methamphetamine and
the pipe were fruits of Mrs. Williams’s private search and not subject to the
exclusionary rule, it reasoned that it did not have to resolve the Randolph question.
Id. at ¶¶ 17–18. Writing separately, Judge Berger expressed concern about the
soundness of the majority’s analysis but nevertheless concurred in the judgment.
Id. at ¶ 25 (Berger, J., specially concurring).
6
¶12 Mr. Williams then filed a petition for certiorari review, and we granted the
petition in part.4
II
¶13 Before us, Mr. Williams advances three contentions: (1) the division erred in
holding that no search implicating the Fourth Amendment occurred; (2) under
Randolph, his objection was dispositive as to him, regardless of his wife’s consent,
and therefore the officers were not authorized to remain in his residence when he
asked them to leave; and (3) the inevitable discovery exception to the exclusionary
4 We granted certiorari to review three issues:
1. Whether the court of appeals erred in holding that no search
implicating the Fourth Amendment occurred when police officers
entered the defendant’s home, accompanied the defendant’s wife
to retrieve contraband belonging to the defendant that his wife had
hidden, and seized the contraband.
2. Whether, under Georgia v. Randolph, 547 U.S. 103 (2006), a police
officer may remain in a residence absent a warrant or an exigency
when one occupant consents but another occupant is physically
present and objects.
3. Whether the inevitable discovery doctrine applies when police
officers are not already pursuing alternative lawful means of
discovery at the time of an unlawful search and seizure.
7
rule does not apply.5 We decline to address the first assertion because we conclude
that, even if a search implicating the Fourth Amendment occurred, under Randolph
and Fernandez, the officers were justified in remaining in the Williams residence
after Mr. Williams asked them to leave. And, because we find that the officers did
not violate the Fourth Amendment, we need not resolve Mr. Williams’s inevitable-
discovery assertion either. Hence, we limit our discussion to the applicability of
the Randolph exception.
A
¶14 Our review of a district court’s suppression order presents “a mixed
question of law and fact.” People v. Allen, 2019 CO 88, ¶ 13, 450 P.3d 724, 728
(quoting People v. Threlkel, 2019 CO 18, ¶ 15, 438 P.3d 722, 727). We defer to the
district court’s findings of fact “and do not disturb them if they are supported by
competent evidence in the record.” Id. But we review de novo the district court’s
legal conclusions. Id. Whether the Randolph exception applies here is a legal
question we review de novo.
5In his concurrence, Judge Berger opined that the inevitable discovery doctrine
supported the district court’s ruling. Williams, ¶¶ 35–38 (Berger, J., specially
concurring).
8
B
¶15 The Fourth Amendment prohibits unreasonable searches and seizures. Id.
at ¶ 15, 450 P.3d at 728. “[T]he text of the Fourth Amendment does not specify
when a search warrant must be obtained.” Kentucky v. King, 563 U.S. 452, 459
(2011). But there is a presumption that when police officers conduct a search of a
home without first securing a warrant, the search is unreasonable and thus
unconstitutional. Brigham City v. Stuart, 547 U.S. 398, 403 (2006). Nevertheless,
because the touchstone of the Fourth Amendment is reasonableness, the Supreme
Court has long recognized certain exceptions to the warrant requirement. Id.
¶16 One such exception is a consent search. This exception makes sense, as it
would be “absurd” to require the police to obtain a search warrant “when the sole
owner or occupant of a house or apartment voluntarily consents to a search.”
Fernandez, 571 U.S. at 298. It is beyond dispute that such an owner or occupant has
a right to allow others to enter and examine her residence, “and there is no reason
why [she] should not be permitted to extend this same privilege to police officers
if that is [her] choice.” Id.
¶17 But the situation gets trickier when two or more occupants share common
authority over a jointly occupied residence. Do they all have to consent to a
search? Or is one occupant’s consent sufficient? And what if one occupant
consents, but the other contemporaneously objects?
9
¶18 Almost a half century ago, in United States v. Matlock, 415 U.S. 164 (1974), the
Supreme Court determined that consent to search provided by an occupant who
possesses common authority over the premises is sufficient and such consent is
valid against the absent, nonconsenting occupant with whom she shares that
authority. Id. at 171. There, after Matlock was indicted for bank robbery, police
officers arrested him in the front yard of a home he shared with a woman named
Graff and her family. Id. at 166. Matlock was then placed in a patrol car. Id. Rather
than ask Matlock for consent to search the room he shared with Graff, police
officers knocked on the front door of the residence and asked Graff for consent to
search the house, which she provided. Id. In the room she and Matlock shared,
officers found incriminating evidence. Id. at 166–67. The trial court later granted
Matlock’s pretrial request to suppress the evidence recovered, and the United
States Court of Appeals for the Seventh Circuit affirmed. Id. at 167–69.
¶19 But the Supreme Court reversed. It held that a warrantless search is
generally valid if it is based on the consent of a third party with common authority
over the premises. Id. at 170–71. Therefore, concluded the Court, Graff’s consent
was sufficient to justify the warrantless search. Id. at 177. In assessing the
reasonableness of the search, the Court looked to the “commonly held
understanding about the authority that co-inhabitants may exercise in ways that
affect each other’s interests.” Randolph, 547 U.S. at 111 (discussing Matlock). It
10
likened this understanding of shared tenancy to a resident’s “assumption of risk”
that a guest who is obnoxious to her may be admitted by a co-occupant. Id. This
notion, observed the Court, is concordant with the significant role that widely
shared social expectations play in evaluating the reasonableness of consent
searches. Id. at 111–12.
¶20 A couple of decades later, the Court applied Matlock in Illinois v. Rodriguez,
497 U.S. 177 (1990). In Rodriguez, Fischer, a woman who showed signs of a severe
beating, told police officers that Rodriguez had assaulted her in “our” apartment
(where she had clothes and furniture), that he was asleep in the apartment, and
that she was willing to take them there in order to unlock the door with her key so
that they could arrest him. Id. at 179. The officers followed Fischer to the
apartment and, without knocking, entered after she unlocked the door and
allowed them inside. Id. at 180. They proceeded to the bedroom, where they woke
Rodriguez up and arrested him. Id. In plain view in the apartment, they saw
contraband, which they collected and which prosecutors later used to charge
Rodriguez with possession of a controlled substance with intent to deliver. Id.
Before trial, Rodriguez sought to suppress the evidence seized from the apartment.
Id. To that end, he showed that Fischer lacked authority to consent to the officers’
entry because she was no longer living in the apartment at that time. Id. The
circuit court granted his motion and the appellate court upheld the ruling. Id.
11
¶21 As in Matlock, the Supreme Court reversed. Id. at 189. It held that if the
officers reasonably believed that Fischer lived in the apartment and had common
authority over it, her apparent authority sufficed and the warrantless entry was
lawful. Id. at 183–84, 189. It thus remanded the matter so that the circuit court
could consider whether the officers reasonably believed that Fischer had authority
to consent. Id. at 189.
¶22 In 2006, Randolph required the Court to assay the relevant legal landscape
when a physically present resident objected to a search but his co-occupant
contemporaneously provided consent. See Randolph, 547 U.S. at 106. In that case,
police officers responded to the Randolph residence after Mrs. Randolph reported
a domestic dispute. Id. at 107. When the officers arrived, she informed them that
her estranged husband was a cocaine user and that there were “items of drug
evidence” in the house. Id. The officers asked Mr. Randolph for permission to
search the house, but he unequivocally refused. Id. They then turned to Mrs.
Randolph and asked for her consent to search, which she provided without delay.
Id. A subsequent search revealed evidence that was eventually used to convict Mr.
Randolph of possession of cocaine. Id.
¶23 On appeal, the Supreme Court explained that the issue of whether Mrs.
Randolph had the right to admit the officers despite Mr. Randolph being
physically present and objecting turned on “whether customary social
12
understanding accord[ed] the consenting tenant authority powerful enough to
prevail over the co-tenant’s objection”—a question left unanswered by Matlock. Id.
at 121. Although continuing to recognize the rule shepherded by Matlock and
reaffirmed in Rodriguez—that the police may generally search a jointly occupied
residence if one of the occupants consents—the Court created a narrow exception:
“[A] physically present inhabitant’s express refusal of consent to a police search
[of his residence] is dispositive as to him, regardless of the consent of a fellow
occupant.” Id. at 122–23. The Court thus concluded that Mr. Randolph’s “stated
refusal to permit entry prevail[ed]” over his wife’s consent, “rendering the
warrantless search unreasonable and invalid as to him.” Id. at 106.
¶24 The Randolph Court explicitly acknowledged that in order to avoid
undercutting Matlock and Rodriguez, it had to draw “a fine line.” Id. at 121. After
all, noted the Court, while Matlock was not physically present on the premises
with the opportunity to object when Graff gave officers her consent, he was sitting
in a nearby police car; and, though Rodriguez was asleep in his apartment, the
officers easily could have awakened him by knocking on the front door before
entering pursuant to Fischer’s consent. Id. Here is the line the Court drew in order
to avert overturning Matlock and Rodriguez:
13
[I]f a potential defendant with self-interest in objecting is in fact at the
door and objects, the co-tenant’s permission does not suffice for a
reasonable search, whereas the potential objector, nearby but not
invited to take part in the threshold colloquy, loses out.
Id.
¶25 The Court unapologetically conceded that this was a “formalis[tic]” line. Id.
But it reasoned that such a line was justified. Id. It pointed to the “practical value”
that exists “in the simple clarity of complementary rules, one recognizing the
co-tenant’s permission when there is no fellow occupant on hand, the other
according dispositive weight to the fellow occupant’s contrary indication when he
expresses it.” Id. at 121–22. Then, harkening back to its rationale in Rodriguez
—that it was “unjustifiably impractical” to require officers “to take affirmative
steps to confirm the actual authority” of a co-tenant with apparent authority—the
Court decided that it was “[b]etter to accept the formalism of distinguishing
Matlock” than to “needlessly limit the capacity” of officers “to respond to
ostensibly legitimate opportunities in the field” by requiring them “to take
affirmative steps to find a potentially objecting co-tenant before acting on the
permission . . . already received.” Id. at 122.
¶26 Recently, the Court had occasion to revisit the Randolph exception, this time
to consider if it applied where the defendant was initially present on the premises
and objected to the police entering his apartment but neither was present nor
objected when his co-occupant subsequently consented to a search. Fernandez,
14
571 U.S. at 294. In Fernandez, police officers responded to a report of a street
robbery with a knife. Id. at 295. While officers were on scene, a witness pointed
out an apartment building to them and told them that “the guy” was in there. Id.
The officers then saw a man run through an alley and into that building. Id. Just
a minute or two later, they heard sounds consistent with screaming and fighting
coming from one of the apartment units in the building. Id. The officers knocked
on the door of that apartment unit and a woman named Rojas answered. Id. She
was holding a baby, appeared to be crying, had a large bump on her nose, redness
on her face, and blood on her shirt and hand from what seemed to be a fresh injury.
Id. Rojas indicated that she had been in a fight. Id. When the officers asked if
anyone else was in the apartment, she responded that her four-year-old son was
the only other person there. Id. As the officers asked Rojas to exit the apartment
so that they could conduct a protective sweep, Fernandez emerged from inside
and addressed the officers: “You don’t have any right to come in here. I know my
rights.” Id. at 296. Because the officers suspected that he had assaulted Rojas, they
removed him from the apartment and arrested him. Id.
¶27 Shortly thereafter, the victim of the street robbery identified Fernandez as
his attacker and Fernandez was then transported to the police station. Id. About
an hour after Fernandez’s removal from the apartment, a detective sought and
received oral and written consent from Rojas to search the apartment. Id. During
15
the search, the officers seized evidence that was later used against Fernandez to
obtain convictions at trial for robbery and infliction of corporal injury. Id. at
296–97.
¶28 On appeal, Fernandez invoked the Randolph exception. Id. at 301–02. But
the Supreme Court was unpersuaded because he neither was physically present
nor objected when the officers requested and Rojas provided consent to search the
apartment. Id. at 302–06.
¶29 In terms of the physical presence requirement, the Court mentioned that
Randolph went “to great lengths to make clear that its holding was limited to
situations in which the objecting occupant is present.” Id. at 301. The Court noted
that Randolph emphasized “this controlling factor” “[a]gain and again.” Id. In fact,
stated the Court, Randolph “could hardly have been clearer on this point.” Id.
¶30 Notably, the Court in Fernandez clarified that the requirement of physical
presence is not restricted to presence at “the threshold” of the residence, id. at 304;
it refers instead to “presence on the premises to be searched,” id. at 306. This
clarification notwithstanding, the Court admitted that the physical presence
requirement is not without risk of ambiguity because there may be cases in which
the parties dispute the outer boundary of the premises. Id. But the Court
nevertheless remained faithful to the line drawn in Randolph. Id. Rather than stray
off the path mapped by Randolph, the Court followed in the footsteps of Bailey v.
16
United States, 568 U.S. 186 (2013), which faced a similar challenge in a different
context and embraced “a rule that applies only when the affected individual is near
the premises being searched.” Fernandez, 571 U.S. at 306.6
¶31 Turning to Fernandez’s assertions, the Court disagreed that his absence
when Rojas provided consent should not be held against him because it was
caused by the officers when they removed him from the apartment and arrested
him. Id. at 302. It held that “an occupant who is absent due to a lawful detention
or arrest stands in the same shoes as an occupant who is absent for any other
reason.” Id. at 303. Because it was uncontested that the officers had both probable
cause to arrest Fernandez and reasonable grounds to remove him from the
residence so that they could speak with Rojas “outside of [his] potentially
intimidating presence,” the Court saw no need to broaden the Randolph exception.
Id.
¶32 More apropos to the issue here, Fernandez also claimed that he satisfied the
contemporaneous objection requirement. Id. According to Fernandez, his
objection at the threshold of the apartment, before officers initially entered,
6The issue in Bailey was whether Bailey’s seizure was reasonable, considering that
“he was stopped and detained at some distance away from the premises to be
searched when the only justification for the detention was to ensure the safety and
efficacy of the search” of the premises. 568 U.S. at 189–90.
17
remained effective when Rojas provided consent to search approximately an hour
later. Id. In fact, Fernandez asserted that his objection was effective unless he
withdrew it. Id. For two reasons, the Court was unmoved.
¶33 First, the Court determined that Fernandez’s position could not be
reconciled with the “widely shared social expectations” or “customary social
usage” upon which Randolph is rooted. Id. (quoting Randolph, 547 U.S. at 111, 121).
To illustrate the point, the Court took a page out of Randolph and contrasted two
hypothetical factual scenarios:
When the objecting occupant is standing at the threshold saying “stay
out,” a friend or visitor invited to enter by another occupant can
expect at best an uncomfortable scene and at worst violence if he or
she tries to brush past the objector. But when the objector is not on
the scene (and especially when it is known that the objector will not
return during the course of the visit), the friend or visitor is much
more likely to accept the invitation to enter.
Id. at 304. The Court impliedly determined that since Fernandez had not objected
at the time officers requested and Rojas granted consent to search, the Randolph
exception did not apply. See id.
¶34 Second, the Court discerned that Fernandez’s stance would lead to the very
types of practical and administrative complications that Randolph specifically
attempted to ward off. Id. Among the plethora of difficulties the Court anticipated
were the following:
• The indefinite duration of an objection if no withdrawal is ever uttered
would be problematic. And requiring that an objection remain effective
18
for a “reasonable” time would not solve the problem. What would be
“reasonable”?
• The police and the courts would have to decide whether an objector
continues to have “common authority” over the premises even if, after
incarceration, he stops paying rent or is no longer on the lease.
• How would a continuing objection be registered? Could an objection be
made preemptively in advance or posted in front of the house?
• Which police officers would be bound by an objection?
Id. at 304–06. But, concluded the Court, “all of these problems disappear” if we
take “Randolph . . . at its word” and apply it “only when the objector is standing in
the door saying ‘stay out’ when officers propose to make a consent search.” Id. at
306.
C
¶35 Mr. Williams urges us to hold that after Fernandez, the Randolph exception
applies if the objector was “present on the premises,” even if he was not actually
at the threshold of the residence. Although we agree that the requirement of
physical presence refers to being present on the premises—whether at the
threshold of the premises, elsewhere on the premises, or near the premises—Mr.
Williams’s reading of Fernandez is incomplete and thus incorrect. Randolph’s
narrow exception applies only if two requirements are satisfied: (1) the objecting
occupant must have been physically present on the premises as officers
“propose[d] to make a consent search”; and (2) the objecting occupant must have
19
objected as officers “propose[d] to make a consent search.” Fernandez, 571 U.S. at
306; see also id. at 294 (framing the issue as “whether Randolph applies if the
objecting occupant is absent when another occupant consents” (emphasis added)); id.
at 301 (“In this case, [Fernandez] was not present when Rojas consented . . . .”
(emphasis added)); id. at 296, 301–02 (characterizing as unsound Fernandez’s
assertion “that it was sufficient that he objected to the search while he was still
present,” which occurred approximately an hour before Rojas provided officers
consent). In other words, both of the requirements that the objecting occupant
must fulfill are anchored to the timeframe during which police officers request and
receive a co-occupant’s consent to search.
¶36 In the vast majority of cases, the colloquy between the police and an
objector’s co-occupant regarding consent to search will take place at the threshold
of the residence. Not surprisingly, then, Randolph alluded to the objecting
occupant standing at the threshold saying “stay out.” 547 U.S. at 113. And, while
Fernandez clarified that the requirement of physical presence is not limited to
presence at the threshold, we do not read that opinion as dispensing with the
contemporaneous objection requirement. The objecting occupant must still speak
up and object as a co-occupant grants officers consent to search. Otherwise, the
Court would have reached the opposite result in Fernandez. Fernandez was
physically present and objected—at the threshold of his apartment no less—when
20
officers first arrived. But the Court nevertheless refused to extend the Randolph
exception because Fernandez neither was physically present on the premises nor
objected as officers and Rojas had a colloquy regarding consent to search
(wherever on the premises that colloquy may have taken place).
¶37 Whereas Fernandez objected before Rojas gave officers consent to search, we
deal here with the other side of the picture because Mr. Williams objected after his
wife gave officers consent and invited them inside so that they could take
possession of the drugs and paraphernalia. For reasons similar to those articulated
by the Court in Fernandez, we decline to stretch the Randolph exception to cover
this situation.
¶38 First, the application of Randolph in this case is not compatible with the
“widely shared social expectations” or “customary social usage” in which that
decision is embedded. When the officers arrived at the Williams residence and
Mrs. Williams invited them in, no “fellow tenant stood there saying, ‘stay out.’”
Randolph, 547 U.S. at 113. Under these circumstances, a friend or visitor would
have likely accepted the invitation to enter, as he or she would have had no reason
to expect “an uncomfortable scene,” much less “violence.” Fernandez, 571 U.S. at
303–04.
¶39 Mr. Williams insists, though, that “[n]o sensible person” would have felt
“confident to remain” in his residence in the face of his “command to ‘get out.’”
21
However, this contention misses the mark because it mistakenly focuses on the
moment the officers contacted him in the living room, as opposed to the moment
his wife provided consent and permitted them to enter the residence. The inquiry
is whether, at the time Mrs. Williams provided consent and allowed the officers
inside the residence, “a caller” standing in their shoes “would have [had] no
confidence” that the invitation “was a sufficiently good reason to enter.” Randolph,
547 U.S. at 113. To make the focal point of the analysis the subsequent interaction
between the officers and Mr. Williams would allow the exception to swallow the
rule whenever the objecting occupant is simply present on the premises. Put
differently, it would eliminate the requirement that the objecting occupant must
object as officers request and the co-occupant grants consent to search.
¶40 Second, the rule for which Mr. Williams advocates would bring about
myriad practical problems. For example:
• How long after officers enter a residence pursuant to an occupant’s
consent could a co-occupant revoke that consent? Requiring an occupant
to revoke a co-occupant’s consent within a “reasonable” time would not
solve the problem. What would be “reasonable”?
• Would it make a difference if, at the time of the revocation, officers have
started searching the residence? And, if they have already recovered
something incriminating, would they have to stop or could they continue
their search or obtain a search warrant?
• Would the exclusionary rule apply to items collected before the
revocation? Would it apply to plain view observations already made?
Would it apply to evidence derived from those items or observations?
22
• Finally, would the proposed rule cause officers to rush and to be less
cautious while conducting consent searches for fear that a co-occupant
could show up at any moment and revoke the consent provided?
¶41 Of course, to borrow from Fernandez, “all of these problems disappear” if
we take Randolph at its word. Fernandez, 571 U.S. at 306. Because we do, we hold
that the Randolph exception, as clarified in Fernandez, applies only if, at the time the
officers receive an occupant’s consent to search, a co-occupant who is physically
present on the premises objects.7
¶42 In this case, Mr. Williams was physically present on the premises when the
officers arrived and Mrs. Williams invited them inside to collect the drugs and
paraphernalia she had hidden in the garage. However, he did not object at that
time. Therefore, the Randolph exception does not apply. Mr. Williams’s
subsequent objection, after the officers had already entered his home and were in
the process of taking possession of the drugs and paraphernalia, could not vitiate
the consent previously provided by his wife.
7 We recognize that Mrs. Williams initially consented at the church when she met
with the officers in Mr. Williams’s absence. Today’s decision is not grounded in
Mr. Williams’s failure to object during that colloquy or sometime before the
officers arrived at his home. Mrs. Williams could have changed her mind and
taken back her consent before she returned home. She did not do so. Instead, she
continued to consent and, upon reaching her residence, invited the officers to cross
the threshold of her home and enter. Had Mr. Williams stood at the door and said
“stay out” or otherwise objected to the officers’ entry, we would find that the
Randolph exception applies.
23
III
¶43 We conclude that the division correctly upheld the district court’s
suppression order. However, because our rationale differs from the division’s, we
affirm on other grounds.
24