United States v. Hudspeth , 518 F.3d 954 ( 2008 )

MELLOY, Circuit Judge, with whom WOLLMAN and BYE, Circuit Judges, join,

dissenting.

I believe Mrs. Hudspeth’s consent cannot overrule Hudspeth’s denial of consent. Therefore, I respectfully dissent.

The question presented to the en banc court is whether an officer who was denied consent to search a shared residence by one co-tenant may rely upon consent given by a different co-tenant as grounds for a warrantless search of the shared residence. Although the majority notes that “exigent circumstances support the reasonableness of the officer’s conduct,” ante at 960, whether exigent circumstances justified entry into the Hudspeth home without a warrant is not a question before the court. Nor do we have before us other alternative theories, such as inevitable discovery, that may provide a basis for the admission of evidence discovered on the home computer.⁵ We are faced with a single issue: the ability of a co-tenant to consent to a search of shared premises when a co-tenant of equal status objects to the search. My conclusion that such a search is unreasonable, and therefore is a violation of the Fourth Amendment, stems from the same Supreme Court jurisprudence discussed at length by the majority.

Notably, none of Supreme Court’s relevant co-tenant consent jurisprudence presented a factual scenario identical to that presented in the instant case. The differences between the cases are plain. I believe these differences to be very significant. In Matlock and Rodriguez, the cotenant challenging the admission of the evidence against him never voiced an objection to the warrantless search. Matlock, 415 U.S. at 166, 94 S.Ct. 988; Rodriguez, 497 U.S. at 180, 110 S.Ct. 2793. Randolph, of course, objected to the warrantless search of his home, Randolph, 547 U.S. at 107, 126 S.Ct. 1515, as did Hudspeth. Randolph objected while standing at the threshold of the shared residence, id., whereas Hudspeth’s objection occurred off-site. The question is whether these differences are of constitutional import. The majority glosses over the difference between lack of consent and express objection, and instead focuses on geography, concluding that the location of a defendant, not whether he expressly objects, is determinative. Mindful that the Supreme Court “deeide[s] the case before [it], not a different one,” id. at 120 n. 8, 126 S.Ct. 1515, I reach a contrary conclusion. Based on the principles discussed in these cases, I conclude a warrantless search conducted despite the timely express objection of a co-tenant of equal status cannot be considered reasonable, regardless of where the objection occurs.

Turning first to Matlock, the Court there held: “ ‘the consent of one who possesses common authority over premises or effects is valid against the absent, noncon-senting person with whom that authority is shared.’ ” Ante at 957 (quoting Matlock, 415 U.S. at 170, 94 S.Ct. 988). The majority relies upon this statement in concluding that a co-tenant who expressly objects but is absent may nonetheless be subject to a warrantless search based upon the consent of another co-tenant. This analysis is flawed because “nonconsenting” cannot be read as synonymous with “objecting.” First, the definition of the word “noncon-senting” belies that interpretation. The use of the prefix “non” usually “implfies] mere negation or absence of something (rather than the opposite or reverse of it ...).” Webster’s Unabridged Dictionary 1306 (2d ed.2001). Further, the term “nonconsent” is defined as “[l]ack of voluntary agreement.” Black’s Law Dictionary 1078 (8th ed.2004). Thus, “nonconsenting” would imply absence of consent, not objection. Second, none of the cases cited as consistent with the Matlock Court’s holding involved co-tenants who expressly objected to a search; all of the individuals seeking to suppress the evidence simply were silent or did not have the opportunity to consent or object to the search. See Matlock, 415 U.S. at 169-70 nn. 4-6, 94 S.Ct. 988 (collecting cases). Third, in differentiating between Matlock and Randolph, the Supreme Court highlighted the lack of objection, not the lack of consent by the defendant. See Randolph, 547 U.S. at 120-21, 126 S.Ct. 1515. Neither Matlock nor Randolph consented to the search of his shared residence, but Randolph explicitly objected — a outcome-determinative fact. The majority asks more of Matlock’s holding than it can give; Matlock provides no guidance as to the reasonableness of a search conducted despite explicit objection by a co-tenant of equal status.

The majority also looks to language in Rodriguez dealing with lack of consent in support of its conclusion that explicit objection by a co-tenant may be overcome. The majority highlights the Rodriguez Court’s statement that the Constitution does not guarantee that “ ‘no government search of [a person’s] house will occur unless he consents’ ” only that “ ‘no such search will occur that is unreasonable.’ ” Ante at 958 (quoting Rodriguez, 497 U.S. at 183, 110 S.Ct. 2793) (internal quotation omitted). This proposition is unremarkable and adds little, if any, support to the majority’s conclusion. The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. “The touchstone of the Fourth Amendment is reasonableness,” Samson v. California, 547 U.S. 843, 855 n. 4, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), and “[t]here are various elements, of course, that can make a search of a person’s house ‘reasonable,’ ” Rodriguez, 497 U.S. at 183-84, 110 S.Ct. 2793. For example, a search conducted without a person’s consent, but pursuant to a warrant issued by a neutral and detached magistrate upon a finding of probable cause, is reasonable. The question presented in this case is not whether a search can ever be conducted without the consent of the defendant, but whether a warrantless search of shared premises can be reasonable when based upon contested consent.

In contrast to the passages from Mat-lock and Rodriguez emphasized by the majority, the language of the Randolph Court demonstrates the significance of express objection by a co-tenant, as opposed to mere lack of consent. Throughout the opinion, the Court repeatedly refers to “objecting” co-tenants, not “nonconsent-ing” co-tenants. See, e.g., Randolph, 547 U.S. at 114, 115, 117 n. 6, 121, & 122, 126 S.Ct. 1515. In fact, the holding assumes there will be nonconsenting co-tenants— co-tenants who do not affirmatively assent to the search — and that those co-tenants will “lose[] out.” Id. at 121, 126 S.Ct. 1515. By carefully “drawing a fine line,” between the defendants in Rodriguez, Matlock, and Randolph, the Randolph Court highlighted the importance of express objection by a co-tenant. Id. This is evident in the Court’s conclusion that “there is practical value 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, 126 S.Ct. 1515 (emphasis added). The Ninth Circuit recently emphasized the importance of express objection by a co-tenant, relying upon Randolph and holding “that when a cotenant objects to a search and another party with common authority subsequently gives consent to that search in the absence of the first co-tenant the search is invalid as to the objecting co-tenant.” United States v. Murphy, 516 F.3d 1117, 1124 (9th Cir.2008).

The majority treats the Court’s repeated reference to physical presence as creating a necessary prerequisite for a finding that a search based upon contested consent is unreasonable. I do not believe the Supreme Court’s language reflects a geographic mandate, but rather a conscious effort to “decide the case before [it], not a different one.” Id. at 120 n. 8, 126 S.Ct. 1515. In this case, we are required to decide the issue the Supreme Court left unanswered: Is the express denial of consent by a co-tenant dispositive or is the physical location, i.e., at the front door, controlling? In my view, the Randolph Court’s primary focus was on legitimate expectations of privacy. See United States v. Cos, 498 F.3d 1115, 1126 (10th Cir.2007) (discussing Randolph and concluding that “whether the defendant’s reasonable expectation of privacy was infringed by the third party’s consent to the search is a paramount concern”). Relying upon Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990), the Court found the legitimate expectation of privacy of the objecting co-tenant is at least as strong, or stronger, than an objecting overnight houseguest. Randolph, 547 U.S. at 113, 126 S.Ct. 1515.

It seems inconceivable to me that a core value of the Fourth Amendment, the expectation of privacy in one’s own home, would be dependent upon a tape measure. The objecting co-tenant in Randolph was at the front door. At what point does that co-tenant lose his or her right to object to the search? At the front porch? In the front yard? At the curb? I cannot believe the Supreme Court intended to make one’s expectation of privacy dependent upon the happenstance of location.

The Supreme Court’s discussion of the implications of a ruling contrary to the holding in Randolph also demonstrates the search in the instant case was unreasonable. In explaining its holding, the Court stated:

For the very reason that Rodriguez held it would be unjustifiably impractical to require the police to take affirmative steps to confirm the actual authority of a consenting individual whose authority was apparent, we think it would needlessly limit the capacity of the police to respond to ostensibly legitimate opportunities in the field if we were to hold that reasonableness required the police to take affirmative steps to find a potentially objecting co-tenant before acting on the permission they had already received.... The pragmatic decision to accept the simplicity of this line is, moreover, supported by the substantial number of instances in which suspects who are asked for permission to search actually consent, albeit imprudently, a fact that undercuts any argument that the police should try to locate a suspected inhabitant because his denial of consent would be a foregone conclusion.

Randolph, 547 U.S. at 122, 126 S.Ct. 1515. Here, officers were not responding to an “ostensibly legitimate opportunit[y] in the field.” Id. They were attempting to create an opportunity despite actual knowledge that the target of their investigation had already foreclosed the option of a consent search. The Court’s concern about the need for a dragnet to find “potential objectors” is non-existent because Hudspeth had already expressed his objection; his “denial of consent” was “a foregone conclusion.” Id.

“[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, 126 S.Ct. 1515. I believe that the Supreme Court has made it clear that the government must get a warrant when one co-tenant expressly denies consent to search a shared residence. In this case, that would not have been a significant burden. As the majority explained, the information gathered at the Handi-Rak “provided probable cause for Cpl. Nash to believe the home computer contained additional contraband.” Ante at 959-60.

Thus, I conclude the warrantless search conducted based upon Mrs. Hudspeth’s consent was unreasonable as to Hudspeth. At the time Cpl. Nash sought Mrs. Hud-speth’s consent, Hudspeth had already explicitly denied consent to search his home. His opposition to a warrantless search of his home was unequivocal. The subsequent consent of Mrs. Hudspeth could not overcome that express denial of consent. I respectfully dissent.

5 . The panel opinion remanded the case to allow the government to attempt to show alternate grounds, other than consent, would support admission of the evidence. As the majority notes, Randolph was decided after initial briefing in this case. The panel majority indicated that because the factual predicate for any alternative theory of admissibility had not been developed in the district court, the government and defense should have the opportunity to present evidence related to any such theory.