certification; for St. Martin: Michael K. Gould, SPD, Milwaukee Appellate; Resp.; Reply
Consent to Search – Georgia v. Randolph
The court of appeals certifies to the supreme court the following question:
Whether the rule regarding consent to search a shared dwelling in Georgia v. Randolph, 547 U.S. 103 (2006), which states that a warrantless search cannot be justified when a physically present resident expressly refuses consent, applies where the physically present resident is taken forcibly from his residence by law enforcement officers but remains in close physical proximity to the residence such that the refusal is made directly to law enforcement on the scene?
St. Martin lived with Latoya, who made a domestic abuse complaint against him. The cops came to the apartment, and forcibly took him outside. Latoya then said she thought St. Martin dealt drugs out of the apartment. Though St. Martin, who remained just outside the apartment in a police van, refused to give consent to search, Latoya was more compliant. You can guess the rest (there are certainly factual wrinkles that might make the case interesting, but they’re not necessarily relevant to the certified question).
Someone with shared authority over the premises (Latoya) may consent to its search, with the proviso established by Randolph that refusal to consent from a “physically present resident” trumps another resident’s consent. But an “absent party’s” refusal to consent has no effect, and Randolph itself anticipated that: “the potential objector, nearby but not invited to take part in the threshold colloquy, loses out,” 547 U.S. at 121. Was St. Martin “physically present”? Or merely “nearby”? Not only was he close enough that the police sought consent from him first, but the only reason he wasn’t inside his residence is because the police forcibly removed him. As the certification notes, Randolph has been “construed very narrowly.” However, the facts in this case may test the limits of that assumption. Back to the certification:
The interpretation of Randolph in this context implicates the constitutional right to be free from unreasonable search and seizure. This right is eroded when law enforcement can manipulate a situation in a way that invalidates a resident’s refusal to consent to a search. Likewise, the state’s ability to investigate and prosecute criminal activity is restrained when police officers are provided insufficient guidance regarding the proper execution of their duties. Because Randolph has not been interpreted or applied in the context of a resident who is removed from his residence but remains nearby and refuses consent when asked, law enforcement officers and the bench and bar would benefit from guidance on the issue. We respectfully certify the question to the Wisconsin Supreme Court.
Does Randolph arguably impose a duty upon police in the St. Martin fact scenario to actually ask him (though he’s in custody) for consent? Or was that totally unnecessary on their part? I have almost an identical scenario except they didn’t bother asking so I figured Randolph was a pointless argument. Might St. Martin offer me a ray of hope?
Very good question, John, one I haven’t researched, but I am aware of relatively significant unfavorable authority, and if nothing else that’s a starting (hopefully not ending) point, United States v. Brown, 563 F.3d 410, 418 (9th Cir. Wash. 2009):
“Agent Watson’s decision not to seek consent from Brown does not invalidate the consent spontaneously volunteered by Rishel. Cf. United States v. Lopez, 547 F.3d 397, 400 (2d Cir. 2008) (“[W]e hold that the marshals had no duty to ask Lopez whether he consented to the search, no matter how easy or convenient it might have been to do so.”), cert. denied, 129 S. Ct. 1636, 173 L. Ed. 2d 1014, 2009 U.S. LEXIS 2045, 2009 WL 357581 (Mar. 23, 2009); United States v. Ayoub, 498 F.3d 532, 540 (6th Cir. 2007) (upholding validity of co-occupant’s consent even though the court “f[ou]nd it curious that the officers never asked Ayoub for consent to search, though they had every opportunity–especially when they pulled him over as he left the house”), cert. denied, 129 S. Ct. 37, 172 L. Ed. 2d 49 (2008).”