Consent to Search, Co-Occupant
Consent to search premises given by one occupant overrides refusal to consent by co-occupant when neither is the subject of the search or ensuing arrest (resolving question expressly held open by Georgia v. Randolph, 547 U.S. 103, 120 n. 8 (2006)).
¶9 Lathan argues that the trial court erred when it denied his motion to suppress evidence because police officers did not have consent to search Hewings’s home. Lathan contends that Hewings’s consent did not override Nonchatlon’s refusal to consent and that his resulting arrest was therefore illegal, making the evidence obtained from that arrest inadmissible. We disagree.
¶13 The United States Supreme Court then held that “a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.” Id. at 120. However, the Court expressly refused to address factual situations mirroring Lathan’s in which “the constitutionality of … a search as to a third tenant against whom the government wishes to use evidence seized after a search with consent of one co-tenant subject to the contemporaneous objection of another” is at issue. Id. at 120 n.8. …
¶14 Unlike the issue in Randolph, the issue here involves refusal by one tenant and consent by another tenant to police entry to the upstairs portion of a home to look for a third tenant who is not present to either consent or refuse consent. …
The police were looking to make a warrantless homicide arrest of Lathan, at his grandmother’s (Hewings) house. Lathan’s mother (Nonchatlon) also lived there, but Hewings was the leaseholder. Nonchatlon let the police in (so entry was indisputably consensual) but told them they had to stay in the living room. Hewings, though, told them they could go upstairs and themselves look for Lathan, thereby “overriding” Nonchatlon’s refusal to grant consent to search the house. But does the holding represent a broad rejection of Randolph as applied to “third tenant” searches? Maybe, maybe not. The court’s concluding paragraph on the issue suggests a narrow result, almost an “apparent authority” analysis:
¶16 Randolph acknowledged that “Fourth Amendment rights [with regard to third-party consent] are not limited by the law of property,” but rather, rested on “‘mutual use,’” id. at 110 (citation omitted), and that “there is no societal or legal understanding of superior and inferior as between co-tenants” unless there is a “recognized hierarchy, e.g., parent and child,” id., 547 U.S. at 114. Nonchatlon acknowledged her mother’s authority over the house by waking her mother up after letting the officers into the house. Because the officers were aware that Hewings was the leaseholder of the house, that Nonchatlon had not previously lived there and that Nonchatlon went to wake Hewings up after the officers arrived, it was reasonable for the officers to conclude that Hewings had the authority to consent to them proceeding up the stairs. Lathan was not present to object to the consent. Nonchatlon, who did object, was not the subject of the search.
What if Nonchatlon and Hewings were mere (“non-hierarchical”) co-tenants? The court doesn’t say, but if there is no potential significance to their relationship, the court wouldn’t have placed so much stress on it; or so one might think.
Warrantless Entry, Probable Cause and Exigent Circumstances
The court alternatively concludes that entry was justified by probable cause coupled with exigent circumstances:
¶20 First, we conclude that the officers did have probable cause to arrest Lathan. The trial court found that Darrough’s statements, taken in the context of the circumstances surrounding the dice game the night before Hope’s death, gave the officers sufficient probable cause to arrest Lathan. We agree.
¶21 According to Detective Lough, Darrough stated that he saw Lathan and Baker playing dice and that an argument ensued between the two while Lathan had two guns within his direct reach. Darrough indicated that he recognized the guns as Lathan’s and that Lathan won money from Baker, prompting Baker to say to Lathan: “If you keep cheating me, I’m going to rob you of everything you’ve got.” Lathan responded: “If you do that, better give me the homer domer,” an expression Detective Lough translated as meaning “shoot him in the head.” Darrough further stated that he left the gambling house and was not present when the homicide occurred, but received a phone call the following morning from Howze, informing him that Lathan had shot Baker in the arm and had killed Hope. Darrough’s statements regarding Lathan’s proximity to guns he believed to be Lathan’s, along with Darrough’s statements about Howze’s phone call, as well as the officers’ knowledge of Lathan’s arrest two months prior to Hope’s death, gave the officers probable cause to believe that Lathan committed the crime of being a felon in possession of a firearm. In addition, the officers reasonably suspected Lathan of a homicide.
¶22 Second, we conclude that exigent circumstances justified the officers’ movement up the stairway to look for Lathan. Upon entering the home, Nonchatlon indicated that Lathan “might be” upstairs. When Hewings arrived she said that Lathan “should be” upstairs. The officers acted reasonably in going up the stairway at that point because: (1) Nonchatlon was no longer in the officers’ sight and could have been alerting her son as to their presence and facilitating his escape; (2) the weapon the officers understood to be owned by Lathan and used to kill Hope and shoot Baker had not been recovered, giving officers reason to believe that Lathan was still armed and the safety of themselves and others in the house was endangered; and (3) Lathan’s arrest two months prior to Hope’s death in connection with a double homicide gave additional reason to suspect Lathan of being armed and dangerous. It would be unreasonable to expect the officers to wait in Hewings’s living room and potentially endanger themselves and others during the time it would take to procure a warrant to go up the stairway and look for Lathan.
Test for exigent-circumstances doctrine recited, ¶19. Not clear, though, why the court would reach this issue given that it already upheld the entry. Nor, for that matter, why the court would reach a precedential issue (Randolph and “third tenants”) when the case could be resolved under settled principles (probable cause / exigent circumstances).