United States v. Henderson, Kevin ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1014
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
KEVIN HENDERSON,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division
No. 04 CR 697—Robert W. Gettleman, Judge.
____________
ARGUED OCTOBER 30, 2007—DECIDED AUGUST 6, 2008
____________
Before MANION, ROVNER, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Police were called to the home of
Patricia and Kevin Henderson on the southwest side of
Chicago to investigate a report of domestic abuse. At the
scene officers met Patricia Henderson standing on the
front lawn; she told them her husband, Kevin, had choked
her and thrown her out of the house. She also warned that
Kevin had weapons in the house and had a history of
drug and gun arrests. Using a key provided by the
Hendersons’ teenage son, officers entered the home and
encountered Kevin Henderson inside. In unequivocal
2 No. 07-1014
terms, he ordered them out. The officers then arrested
Henderson for domestic battery and took him to jail.
After Henderson’s arrest and removal from the scene,
Patricia signed a consent-to-search form and led the
police on a search that uncovered several firearms, crack
cocaine, and items indicative of drug dealing. Henderson
was indicted on federal weapon and drug charges. He
moved to suppress the evidence recovered from his
home, arguing the search was unreasonable under the
Fourth Amendment based on the Supreme Court’s deci-
sion in Georgia v. Randolph, 547 U.S. 103 (2006). The district
court agreed, holding that Henderson’s prior objection
trumped Patricia’s subsequent consent even though he
was no longer present and objecting when she consented.
The government now appeals the court’s suppression
order.
We reverse. Randolph left the bulk of third-party con-
sent law in place; its holding applies only when the defen-
dant is both present and objects to the search of his home.
Although Henderson was initially at home and objected to
the presence of the police when they arrived, his objection
lost its force when he was validly arrested and taken to jail
for domestic battery. At that point Patricia was free to
consent to a search notwithstanding Henderson’s prior
objection; we do not read Randolph as permanently dis-
abling her shared authority to consent to an evidentiary
search of her home. Patricia’s subsequent consent, freely
given when Henderson was no longer present and object-
ing, rendered the warrantless search of their home reason-
able and valid as to him.
No. 07-1014 3
I. Background
On a late November morning in 2003, Chicago police
officers responded to a report of domestic abuse at the
home of Patricia and Kevin Henderson on the southwest
side of the city. At the scene officers found Patricia stand-
ing with a neighbor on the front lawn of her home. She
told the officers that Henderson had choked her and
then threw her out of the house after learning she had
called 911. Patricia had noticeable red marks around her
neck that substantiated her story.
The Hendersons’ teenage son arrived shortly after the
police and gave them a key to the home. Before the police
entered, Patricia told them that Henderson had weapons
in the house and had a history of drug and gun arrests.
Patricia said she was willing to file a complaint against
Henderson and wanted him arrested. The parties dispute
whether or not Patricia also told the officers, prior to
their entering the house, that she wanted the house
searched.
The police used the key to enter the house and found
Henderson in the living room. After a brief exchange,
Henderson told the officers to “[g]et the [expletive] out
of my house”—which the district court reasonably con-
strued as an objection to a search. Henderson was then
arrested for domestic battery and taken to the police
station. Patricia was still outside and did not observe
Henderson’s encounter with the police. A few minutes
after Henderson was taken to the station, Patricia agreed
to a search of the home and signed a consent form.
Patricia led the officers to the attic where they discovered
crack cocaine and drug-dealing paraphernalia, four
handguns, a shotgun, a rifle, a machine gun, and live
4 No. 07-1014
rounds of ammunition. In the basement they found a
machete, a crossbow, and more ammunition, as well as
an M-1000 explosive device. Patricia suggested that the
officers also search the family car, and she signed another
consent form. This search uncovered additional crack
cocaine.
Henderson was charged with possession of crack co-
caine with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1), various firearms-related offenses in violation
of 18 U.S.C. §§ 922 and 924, and possession of an explosive
device in violation of 26 U.S.C. § 5861(d). Henderson
moved to suppress the evidence obtained from the
search of the house and car, arguing that the Supreme
Court’s decision in Randolph required suppression because
he was a present and objecting resident whose express
refusal to allow a search overrode Patricia’s later consent.
The district court agreed as to the search of the house and
suppressed the evidence recovered in that search. The
government appealed.1
II. Analysis
A. Appellate Jurisdiction
Henderson moved to dismiss the government’s appeal
for lack of appellate jurisdiction. In a criminal case, the
United States may appeal “a decision or order of a dis-
trict court suppressing or excluding evidence” so long as
the appeal is “taken within thirty days after the decision,
1
Henderson cross-appealed the district court’s refusal to
suppress the crack cocaine recovered from the car. He has
since voluntarily dismissed the cross-appeal.
No. 07-1014 5
judgment or order has been rendered.” 18 U.S.C. § 3731.
The district court announced its decision orally on June 26,
2006, and the government did not file this appeal until
December 29. It did, however, move the district court to
reconsider its order on July 21, within the 30-day period,
and then filed its notice of appeal within 30 days of the
district court’s denial of the motion to reconsider.
After both parties filed briefs addressing appellate
jurisdiction, a motions panel of this court denied the
motion to dismiss. Decisions by motions panels do not
“resolve definitively the question of our jurisdiction, and
we are free to re-examine” the question when the merits
panel hears the case. United States v. Lilly, 206 F.3d 756,
760 (7th Cir. 2000). Often a motions panel must decide an
issue “on a scanty record,” and its ruling is “not entitled to
the weight of a decision made after plenary submission.”
Johnson v. Burken, 930 F.2d 1202, 1205 (7th Cir. 1991).
Nevertheless, when the merits panel is no better
equipped to make a decision than the motions panel—
particularly regarding questions of appellate jurisdiction—
“honoring the original jurisdictional decision is the more
prudent course.” Moss v. Healthcare Compare Corp., 75
F.3d 276, 280 (7th Cir. 1996).
Both parties were given the opportunity to fully brief
the jurisdictional issue before the motions panel, and
under the circumstances here, we are no better situated
than the motions panel to decide the issue of appellate
jurisdiction. In any event, the decision of the motions panel
was manifestly correct; the Supreme Court’s decision in
United States v. Healy squarely controls the question. 376
U.S. 75, 78 (1964) (holding that “criminal judgments are
nonfinal for purposes of appeal so long as timely rehearing
petitions are pending”); see also United States v. Ibarra,
6 No. 07-1014
502 U.S. 1, 6-8 (1991) (per curiam); United States v. Dieter,
429 U.S. 6, 7-8 (1976) (per curiam). The government’s
notice of appeal was timely.2
B. Application of Georgia v. Randolph
The sole issue on appeal is whether Randolph requires
exclusion of evidence obtained in a warrantless search of
a home after a present and objecting occupant is arrested
and removed from the home and a co-occupant with
authority consents to the search. The district court held
that it does and granted Henderson’s motion to suppress.
Our review of the court’s legal conclusions is de novo;
factual findings and mixed questions of law and fact are
reviewed for clear error. United States v. Parker, 469 F.3d
1074, 1077 (7th Cir. 2006).
A warrantless search of a home is considered per se
unreasonable and a violation of the Fourth Amendment
unless an established exception applies. Katz v. United
States, 389 U.S. 347, 357 (1967). One such exception is
2
Henderson argues that Healy, Ibarra, and Dieter are “no
longer . . . good law” after the Supreme Court’s decision in
Bowles v. Russell, 127 S. Ct. 2360 (2007). Bowles considered
whether a court may make an exception to a statutorily imposed
time limit for filing an appeal; it did not involve the separate
question of when such a time limit begins to run. The Court’s
opinion in Bowles did not mention Healy, Ibarra, or Dieter.
Henderson asks us to “reexamine” these decisions in light of
Bowles, but that is the Supreme Court’s prerogative, not ours.
Heidelberg v. Ill. Prisoner Review Bd., 163 F.3d 1025, 1026 n.1 (7th
Cir. 1998) (citing Rodriguez de Quijas v. Shearson/Am. Express,
Inc., 490 U.S. 477, 484 (1989)).
No. 07-1014 7
voluntary consent given by a person with authority.
Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). This
includes the defendant as the occupant of the home or
premises as well as any third parties who have “common
authority over or other sufficient relationship to the
premises or effects sought to be inspected.” United States v.
Matlock, 415 U.S. 164, 171 (1974); see also United States v.
Fields, 371 F.3d 910, 914 (7th Cir. 2004) (finding consent
may be obtained “either from the person whose property
is searched, or from someone, such as a spouse, with
actual or apparent authority over the premises”) (citations
omitted).
Henderson contends that his objection to the search,
like that of the defendant in Randolph, overrode the con-
sent given by Patricia. In Randolph the defendant’s
wife, Janet Randolph, called police and told them her
husband, Scott Randolph, had taken their son away after a
domestic dispute. The couple had recently separated,
and when officers arrived at the family home, Janet told
them she had just returned with her son after an extended
stay with her parents in Canada and that her husband
was a cocaine user. Randolph arrived shortly thereafter
and explained that he took his son to a neighbor’s so that
Janet couldn’t take him away again. He denied cocaine
use and refused an officer’s request to search his home. The
officer then turned to Janet and asked for her consent
to search, which she granted. The search turned up evi-
dence of drug use, and Randolph was charged with
possession of cocaine. Randolph, 547 U.S. at 106-07.
Assessing the reasonableness of the search in the face
of the disputed consent by husband and wife, the Su-
preme Court emphasized the “great significance given to
widely shared social expectations, which are naturally
8 No. 07-1014
enough influenced by the law of property, but not con-
trolled by its rules.” Id. at 111. The Court observed that
cotenants who disagree over the use of common quarters
must resolve their disputes “through voluntary accom-
modation, not by appeals to authority.” Id. at 113-14. This
“want of any recognized superior authority among dis-
agreeing tenants” suggested to the Court that the reason-
ableness of a disputed consent search should be evaluated
from the standpoint of the social expectations of a third
party faced with an invitation from one cotenant to enter
and an order from another to remain outside. Id. “[I]t is
fair to say that a caller standing at the door of shared
premises would have no confidence that one occupant’s
invitation was a sufficiently good reason to enter when
a fellow tenant stood there saying, ‘stay out.’ ” Id. at 113.
The Court noted that a police officer, as an agent of the
state seeking to enter a private home, would have “no
better claim to reasonableness in entering than the officer
would have in the absence of any consent at all” and, like
any other third party in this situation, would not sensibly
enter the premises given the conflict between the tenants.
Id. at 114. “We therefore hold 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.
The Randolph majority endeavored to preserve the
Court’s previous ruling in Matlock, which held that a third-
party consent search is reasonable even if a tenant with
an interest in avoiding the search is nearby but does not
in fact object. 415 U.S. at 170. In Matlock, the defendant
was arrested in the front yard of the house where he
lived with his girlfriend, Gayle, and her family members.
No. 07-1014 9
He was placed in a nearby squad car and was not asked
for his consent to a search of the bedroom he shared
with Gayle. She, however, agreed to the search, which
turned up evidence of Matlock’s involvement in a bank
robbery. Noting that a tenant of shared premises assumes
the risk that cotenants may allow common areas to be
searched by the police, the Court held: “[T]he consent of
one who possesses common authority over premises or
effects is valid as against the absent, nonconsenting per-
son with whom that authority is shared.” Id. The rationale
of Matlock was later extended to home searches con-
ducted with the consent of a co-occupant whom the police
reasonably, but mistakenly, believe to possess shared
authority over the premises. Illinois v. Rodriguez, 497 U.S.
177, 186 (1990). The defendant in Rodriguez was present
but asleep in the next room when his co-occupant gave
police consent to search. Id. at 180.
The Randolph Court conceded that to maintain Matlock
and Rodriguez, it was required to “draw[ ] a fine line”
between a defendant who is both present and objecting
and one who is either not present (though nearby) or
present but not objecting: “[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, near-
by but not invited to take part in the threshold colloquy,
loses out.” Randolph, 547 U.S. at 121.
Justice Breyer concurred in Randolph, viewing the
Court’s holding as “case specific.” Id. at 127 (Breyer, J.,
concurring). Fourth Amendment reasonableness, he said,
admits of no bright-line rules and is governed by the
“totality of the circumstances,” so if “the circumstances
[were] to change significantly, so should the result.” Id. at
10 No. 07-1014
125-26. Justice Breyer emphasized the majority’s acknowl-
edgment that police may properly enter a home, despite
a present occupant’s objection, in order to protect a vic-
tim from an ongoing or imminent crime and in certain
other exigent circumstances. Id. at 126-27. Beyond high-
lighting the availability of exceptions for exigencies, Justice
Breyer’s concurrence declared the outer limits of the
Court’s holding: “The Court’s opinion does not apply
where the objector is not present and objecting.” Id. at 126(internal quotation marks omitted). “[W]ith these under-
standings,” Justice Breyer joined the Randolph majority.3
Id. at 127.
Among the questions left unanswered by Randolph is
the one presented here: Does a refusal of consent by a
“present and objecting” resident remain effective to bar
the voluntary consent of another resident with authority
after the objector is arrested and is therefore no longer
“present and objecting”? We recently declined to extend
Randolph in a somewhat different context—that of a third-
party consent search conducted in the defendant’s ab-
sence a few weeks after the defendant refused a request
to search his home. In United States v. Groves, 530 F.3d 506(7th Cir. 2008), police responded to a 911 call regarding
shots fired in Daniel Groves’s neighborhood. They located
spent shotgun shells on the ground outside Groves’s
home and questioned him about the gunshots; he denied
having a gun and “unequivocally refused” the officers’
3
Justice Stevens also filed a separate concurrence. See Randolph,
547 U.S. at 123-25. Chief Justice Roberts, joined by Justice
Scalia, dissented. Id. at 127-45. Justice Thomas also filed a
dissent. Id. at 145-49. Justice Alito did not participate, making
the final vote 5-3.
No. 07-1014 11
request to search his home. Id. at 508. A few weeks later,
officers returned to the home at a time when they knew
Groves would be at work but his girlfriend was likely to be
there. They obtained the girlfriend’s consent to search and
located ammunition in Groves’s nightstand. Groves was
convicted of possession of a firearm and ammunition by a
felon. We affirmed, rejecting Groves’s argument that his
girlfriend lacked authority to consent to the search and his
claim that her consent was involuntary. Id. at 510-11, 512-
13. Addressing Randolph, we noted that the search took
place several weeks after Groves’s initial refusal, he was
not present when his girlfriend gave her consent, and the
police “had no active role in securing [his] absence.” Id. at
512. These facts, we held, made the case “readily distin-
guishable” from Randolph, which we characterized as
“expressly disinvit[ing] anything other than the nar-
rowest of readings.” Id.
Our decision in Groves did not address the precise
question presented here; the two circuits to have done
so are split.4 In United States v. Hudspeth, 518 F.3d 954 (8th
Cir. 2008), an en banc majority of the Eighth Circuit
determined that Randolph’s holding is case specific and
extends no further than its particular facts. In Hudspeth,
police uncovered child pornography on the defendant’s
business computer while executing a search warrant.
Believing that Hudspeth’s home computer contained
4
We have previously declined to apply Randolph to third-party
consent searches where the defendant was not asked for—and
therefore never refused—permission to search. See United States
v. Wilburn, 473 F.3d 742, 745 (7th Cir. 2007); United States v.
Parker, 469 F.3d 1074, 1077-78 (7th Cir. 2006); United States v.
DiModica, 468 F.3d 495, 500 (7th Cir. 2006).
12 No. 07-1014
more illicit material, police asked him for consent to
search it. Hudspeth refused and was taken to jail. In the
meantime, other officers went to Hudspeth’s home and
spoke with his wife, Georgia. She refused to allow the
officers to search the home after being told why Hudspeth
had been arrested. Officers then requested permission to
take the home computer, and Georgia asked what would
happen if she refused. The officers explained that they
would obtain a search warrant and leave an armed guard
in the home to ensure no evidence was destroyed. Georgia
relented and consented to the seizure and search of the
home computer, on which police later discovered more
child pornography. Id. at 955-56.
Discussing the effect of Randolph on existing consent-
search law, the Eighth Circuit noted that Randolph relied
on two factors to distinguish its holding from Matlock and
Rodriguez: the defendant’s physical presence and im-
mediate objection to the search. Id. at 959. Hudspeth was
neither present nor immediately objecting when Georgia
gave her consent to take the home computer. Accordingly,
the Eighth Circuit concluded, “the narrow holding of
Randolph, which repeatedly referenced the defendant’s
physical presence and immediate objection, is inapplicable
here.” Id. at 960. The court noted the Matlock principle
that a tenant who chooses to share premises necessarily
relinquishes some privacy and risks that in his absence a
cotenant may allow authorities to search—even if he
preemptively objected. “[T]he absent, expressly ob-
jecting co-inhabitant has assumed the risk that another
co-inhabitant might permit the common area to be
searched.” Id. at 961 (internal quotation marks omitted).
The Ninth Circuit reached the opposite conclusion in
United States v. Murphy, 516 F.3d 1117 (9th Cir. 2008). There,
No. 07-1014 13
the police followed two methamphetamine dealers to a
rental-storage facility; they knew the defendant, Stephen
Murphy, was living in one of the units with the permission
of the renter, Dennis Roper. When police arrived at the
unit, Murphy opened the door, and the officers could
see an operating meth lab in plain view. After performing
a limited protective sweep, the officers asked Murphy for
consent to search, which he refused. Murphy was then
arrested and taken to jail, and Roper appeared on the scene.
Denying any knowledge of the lab, Roper consented in
writing to a search of the unit. Citing Randolph, Murphy
moved to suppress the evidence obtained from the search.
The district court denied the motion, but the Ninth Circuit
agreed with Murphy and reversed. Id. at 1119-20.
The government’s position in Murphy was that Randolph
was distinguishable because Murphy was no longer
present when Roper signed the consent-to-search form,
and therefore his prior objection no longer held any force.
The Ninth Circuit found this distinction immaterial,
holding that “when a co-tenant 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.”
Id. at 1124. The court cited a passage from Randolph iden-
tifying (but not resolving) the potential problem of
pretextual arrests carried out “ ‘for the sake of avoiding
a possible objection’ ” to search. Id. (quoting Randolph,
547 U.S. at 121). The Ninth Circuit took this inchoate
concern from Randolph a step further, however; the court
threw out an otherwise valid third-party consent search
based on the prior objection of a co-occupant whose
arrest and removal from the scene was legitimate, not a
14 No. 07-1014
pretext to evade the objection.5 The court held that “[o]nce
a co-tenant has registered his objection, his refusal to grant
consent remains effective barring some objective manifesta-
tion that he has changed his position and no longer
objects.” Id. at 1125.
5
Our dissenting colleague, like the Ninth Circuit, concludes
that a third-party consent search conducted after the valid
arrest of an objecting co-occupant violates the rule of Randolph.
See infra p. 24 (“As the Ninth Circuit has rightly pointed out,
if police may not remove a tenant in order to prevent him
from objecting to a search of his home, as Randolph makes
clear, 547 U.S. at 121, 126 S. Ct. at 1527, then ‘surely they cannot
arrest a co-tenant and then seek to ignore an objection he has
already made.’ ” (quoting Murphy, 516 F.3d at 1124-25)). For
reasons we will explain, see infra pp. 15-19, we think this extends
Randolph beyond its terms. As we have noted, the Supreme
Court alluded to the potential problem of sham arrests in
explaining the “fine line” it was drawing in Randolph. 547 U.S. at
121 (“This is the line we draw, and we think the formalism is
justified. So long as there is no evidence that the police have
removed the potentially objecting tenant from the entrance for
the sake of avoiding a possible objection, there is practical value
in the simple clarity of complementary rules . . . .”) The facts of
Randolph, however, did not require the Court to address the
matter further, and it did not do so. This passing reference to
pretextual arrests carried out for the purpose of evading an
objection to search was not a holding. In any event, the Court’s
dicta should not be overread to require the invalidation of an
otherwise valid third-party consent search where the objecting
tenant is removed from the home based on a legitimate,
nonpretextual arrest. Here, Henderson was validly arrested
based on probable cause to believe he had committed a domestic
battery; there is no evidence to suggest he was removed from the
home “for the sake of” evading his objection to the search. Id.
at 121-22; Groves, 530 F.3d at 511-12.
No. 07-1014 15
Hudspeth and Murphy are materially indistinguishable
from each other and from this case. The facts here, like
those in Hudspeth and Murphy, begin like Randolph but
end closer to Matlock and Rodriguez. Henderson was in fact
present and objecting when police entered his home. After
he was validly arrested and taken to the police station,
however, Patricia—who unquestionably had shared
authority over the home—voluntarily gave her consent
and led the police on a search for evidence. Henderson
argues that his objection remained in force to override
Patricia’s subsequent consent. He, like the Ninth Circuit,
interprets Randolph as not confined to its circumstances,
that is, as not limited to a disputed consent by two contem-
poraneously present residents with authority. On this
broader reading of Randolph, a one-time objection by one
is sufficient to permanently disable the other from ever
validly consenting to a search of their shared premises. We
think this extends Randolph too far. Randolph itself, we
observed in Groves, “expressly disinvites” any reading
broader than its specific facts.
Like the Eighth Circuit, we see the contemporaneous
presence of the objecting and consenting cotenants as
indispensable to the decision in Randolph. Indeed, the
fact of a conflict between present co-occupants plays a
vital role in the Randolph majority’s “social expectations”
premise; a third party, attuned to societal customs re-
garding shared premises, would not, “[w]ithout some
very good reason,” enter when faced with a disputed
invitation between cotenants. Randolph, 547 U.S. at 113. The
calculus shifts, however, when the tenant seeking to deny
entry is no longer present. His objection loses its force
because he is not there to enforce it, or perhaps (if we
understand the Court’s rationale correctly) because the
16 No. 07-1014
affront to his authority to assert or waive his privacy
interest is no longer an issue. As between two present
but disagreeing residents with authority, the tie goes to
the objector; police may not search based on the consent
of one in the face of “a physically present inhabitant’s
express refusal of consent” to search. Id. at 122. We do not
read Randolph as vesting the objector with an absolute
veto; nothing in the majority opinion suggests the Court
was creating a rule of continuing objection.
Neither the Eighth nor the Ninth Circuit considered
the limiting effect of Justice Breyer’s concurrence on the
scope of the majority opinion. As we have noted, Justice
Breyer joined the other four members of the majority
with the understanding that the Court’s opinion was “case
specific” and “does not apply where the objector is not
present and objecting.” Id. at 126-27 (Breyer, J., concurring)
(internal quotation marks omitted). That, and the
specific limiting language in the majority opinion itself,
convince us that Randolph’s holding ought not be ex-
tended beyond the circumstances at issue there. See id.
at 106 (“We hold that, in the circumstances here at issue,
a physically present co-occupant’s stated refusal to per-
mit entry prevails, rendering the warrantless search
unreasonable and invalid as to him.”) (emphasis added).
The Ninth Circuit’s decision in Murphy essentially reads
the presence requirement out of Randolph, expanding
its holding beyond its express terms and giving rise to
many questions with no readily identifiable principles to
turn to for answers. If an objecting co-occupant’s presence
is not required, are there any limits to the superiority or
duration of his objection? What circumstances (if any)
operate to reinstate a co-occupant’s authority to consent
to a search? May an occupant arrested or interviewed
No. 07-1014 17
away from the home preemptively object to a police
request to search and effectively disable his co-occupants
from consenting even in his absence? Murphy’s answer—
that the objecting occupant’s objection is binding until
he, and only he, objectively manifests his consent to a
search—ignores Randolph’s social-expectations founda-
tion. A prior objection by an occupant who is no longer
present would not be enough to deter a sensible third
party from accepting an invitation to enter by a
co-occupant who is present with authority to extend the
invitation. Under these circumstances even an initially
reluctant guest would feel confident he was not breaking
any unwritten social rules by entering. Just as a tenant’s
mere presence is not enough to override his cotenant’s
consent, see Rodriguez, 497 U.S. at 170 (tenant asleep in
the next room), so too his objection is not enough if he is
absent from the later entry by authorities with the volun-
tary consent of his cotenant.
Our dissenting colleague suggests that this view of
social expectations is Hobbesian: “Only in a Hobbesian
world would one person’s social obligations to another be
limited to what the other is present and able to enforce.”
Infra p. 22. This rather overstates our analysis,
which is limited to the present, narrow context of an
outsider confronted with a contemporaneous disagree-
ment between two residents with equal authority to
consent to entry. In this situation, a visitor who relies on
the express permission given by one resident after the
departure of the objecting resident is not necessarily
opportunistic, nor always a social outlaw. True, “ad-
journ[ing] to a nearby coffee shop rather than risk[ing] the
wrath of the absent tenant” is one way to resolve the
dilemma, id., but it is hardly the only socially acceptable
18 No. 07-1014
option. See Randolph, 547 U.S. at 129-30 (Roberts, C.J.,
dissenting) (“The fact is that a wide variety of differing
social situations can readily be imagined, giving rise
to quite different social expectations. . . . The possible
scenarios are limitless, and slight variations in the fact
pattern yield vastly different expectations about whether
the invitee might be expected to enter or to go away.”).
We know of no social convention that requires the visitor
to abstain from entering once the objector is no longer
on the premises; stated differently, social custom does not
vest the objection with perpetual effectiveness.
The dissent also suggests, with a nod to Hobbes, that a
visitor in this situation would disregard his host’s express
invitation out of fear of retaliation from the absent objector.
Infra p. 22-23. To the contrary, if the circumstances
provide reason for such fear, the visitor might be well
justified in accepting the subsequent invitation to en-
ter—notwithstanding the now-absent objector’s wishes—
in order to be of assistance to his host. Failing that, if
domestic abuse was suspected and a real risk of retaliation
present, the visitor might himself call the authorities,
setting up a new round of questions about the continued
effectiveness and transferability of the absent tenant’s
objection.
In the end, we need not resolve the philosophical ques-
tion. Though we may disagree about the application
of Randolph’s underlying social-expectations theory, the
Court went out of its way to limit its holding to the cir-
cumstances of the case: a disputed consent by two then-
present residents with authority. It is worth noting as
well that consent searches are in no general sense con-
stitutionally disfavored; recognized as “standard investiga-
tive techniques of law enforcement agencies,” consent
No. 07-1014 19
searches are “a constitutionally permissible and wholly
legitimate aspect of effective police activity.” Schneckloth,
412 U.S. at 228.
Our conclusion, like the Eighth Circuit’s, implements
Randolph’s limiting language and the Court’s stated intent
to maintain the vitality of Matlock and Rodriguez. Absent
exigent circumstances, a warrantless search of a home
based on a cotenant’s consent is unreasonable in the face
of a present tenant’s express objection. Once the tenant
leaves, however, social expectations shift, and the tenant
assumes the risk that a cotenant may allow the police to
enter even knowing that the tenant would object or con-
tinue to object if present. Both presence and objection by
the tenant are required to render a consent search unrea-
sonable as to him.
Here, it is undisputed that Henderson objected to the
presence of the police in his home. Once he was validly
arrested for domestic battery and taken to jail, however,
his objection lost its force, and Patricia was free to autho-
rize a search of the home. This she readily did. Patricia’s
consent rendered the warrantless search reasonable
under the Fourth Amendment, and the evidence need not
have been suppressed.6 We REVERSE the district court’s
order suppressing evidence seized from Henderson’s
home and REMAND the case for further proceedings.
6
Given our decision, there is no need to address the factual
dispute of whether Patricia asked the police to search the
home before they entered and confronted Henderson. All that
matters is that she voluntarily consented after he had been
arrested and removed from the scene.
20 No. 07-1014
ROVNER, Circuit Judge, dissenting. There is one and only
one reason that this case is not on all fours with Georgia
v. Randolph: When Kevin Henderson told the police to
“get the fuck out” out of his house, the officers arrested and
removed him instead. Until that moment, Henderson was
both a present and actual objector to the search of
his home. Had he remained on the premises, his objection
would have foreclosed the police from searching the
house regardless of his wife’s consent; only a warrant
would have broken the tie and permitted the search. My
colleagues conclude that Henderson’s valid arrest and
removal from the scene sapped his objection of its force
and allowed the police to search the house with Patricia
Henderson’s consent. In my view, this interprets the
admittedly limited Randolph decision too narrowly. I
would hold that Henderson’s objection survived his
involuntary removal from the home, thus precluding the
search in the absence of a warrant. See United States v.
Murphy, 516 F.3d 1117, 1124-25 (9th Cir. 2008); see also
United States v. Hudspeth, 518 F.3d 954, 963-64 (8th Cir.
2008) (en banc) (Melloy, J., dissenting).
The essential purpose of the Fourth Amendment is to
protect the individual from unwarranted intrusions upon
his privacy. Jones v. U.S., 357 U.S. 493, 498, 78 S. Ct. 1253,
1256 (1958). That privacy interest is at its strongest within
the confines of one’s home. Kyllo v. U.S., 533 U.S. 27, 31, 121
S. Ct. 2038, 2041 (2001); Payton v. New York, 445 U.S. 573,
589, 100 S. Ct. 1371, 1381-82 (1980). Ordinarily, then, a
warrantless entry and search of a home is considered
unreasonable per se and thus contrary to the Fourth
Amendment. E.g., Georgia v. Randolph, 547 U.S. 103, 109,
126 S. Ct. 1515, 1520 (2006). Exceptions to this rule are
“jealously and carefully drawn.” Ibid. (quoting Jones, 357
U.S. at 499, 78 S. Ct. at 1257).
No. 07-1014 21
A search by consent is, of course, one of the recognized
exceptions to the warrant requirement, id. at 109, 126 S. Ct.
at 1520, and where two people share a home, one may
consent in the absence of the other, id. at 109-12, 126 S. Ct.
at 1520-22. Randolph, however, makes clear that when
both tenants are present at the time the police seek con-
sent to search, and one of the tenants objects, the consent
of the other does not suffice to permit the search. Id. at 113-
17, 120, 121, 126 S. Ct. at 1522-25, 1526, 1527. The particular
question that we must resolve is whether a co-tenant’s
objection to a search of his residence survives that
tenant’s arrest and removal from the home.
My colleagues treat the objecting tenant’s departure
from the residence as dispositive. They see the contempora-
neous presence of the objecting tenant, along with his
consenting co-tenant, as key to Randolph’s social expecta-
tions premise. The Randolph majority emphasized that
a person calling at a residence shared by two people
ordinarily would not think himself entitled to enter the
premises over the express objection of a tenant standing
in the doorway upon the caller’s arrival, notwithstanding
the invitation of the objector’s co-tenant. Id. at 113-14, 126
S. Ct. at 1522-23. My colleagues conclude that once the
objecting tenant leaves the premises, “[t]he calculus
shifts[.]” Ante at 15. Once the objecting tenant has left
the premises, they reason, “[h]is objection loses its force
because he is not there to enforce it,” ante at 15; at
the same time, a visitor poses no affront to the absent
tenant’s authority to assert or waive his privacy interest
by relying, in his absence, on the invitation of his co-tenant
to enter the premises, ante at 15-16.
Randolph is a limited holding that “expressly disinvites”
any application to cases with materially different facts.
22 No. 07-1014
United States v. Groves, 530 F.3d 506, 512 (7th Cir. 2008).
I therefore agree (and have written) that even after one
tenant of a shared residence has denied the police permis-
sion to search his residence, the police may return in his
absence on another occasion and search the premises on
the authority of his co-tenant’s consent, so long as the
police played no role in securing his absence. Id. But
where the police are responsible for the objecting tenant’s
removal from the premises, his objection ought to be
treated as a continuing one that trumps his co-tenant’s
consent and so precludes a search of the premises unless
and until the police obtain a warrant.
Returning to Randolph’s social expectations paradigm,
I very much doubt that a social visitor would feel wel-
come in a shared residence once the visitor has been told
by one of the tenants to stay out, especially in the
profanity-laced manner employed by Henderson. Whether
the objecting tenant remains standing in the doorway or
proceeds to leave, the visitor now knows that in entering
the residence he will be acting contrary to the express
wishes of one of the occupants. True, once the objecting
tenant leaves, he can no longer enforce his objection by
barring the doorway. That does not mean that the visitor
will disregard the objection, however. Only in a Hobbesian
world would one person’s social obligations to another
be limited to what the other is present and able to
enforce. Precisely because one regards his own home as
his castle, see Randolph, 547 U.S. at 115, 126 S. Ct. at 1523-
24, he will be reluctant to enter someone else’s home
when he knows—when he has just been told to his face—
that one of its occupants does not wish him to be there.
However much another tenant might wish him to enter,
he cannot do so without disregarding the wishes of the
No. 07-1014 23
absent tenant and in doing so defying convention by
entering without complete permission. And—to give
Hobbes his due—even a visitor of limited social aptitude
will harbor concern about what might occur (either to
himself or to his host) if the objector later discovers that
his wishes have been ignored. The ordinary social guest,
I submit, would suggest that he and his host adjourn to
a nearby coffee shop rather than risk the wrath of the
absent tenant.
Moreover, the involuntary nature of the objecting ten-
ant’s removal from the premises cannot be ignored in our
analysis. Courts presume that one who shares his residence
with another person realizes that, in his absence, his co-
tenant may invite others—including the police—into the
residence. Randolph, 547 U.S. at 111-12, 126 S. Ct. at 1521-22
(citing United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988(1974)). We say that such a person, when he chooses to
leave his residence in the custody and care of his co-tenant,
assumes the risk that his co-tenant may admit someone that
he does not wish to be there. Ibid. That risk is made plain to
him when he opens the door to find a police officer or any
other unwelcome visitor summoned there by his co-tenant.
He may bar the door to that visitor so long as he himself
remains on the premises, but at some level he must know
that should be choose to leave, the obnoxious visitor may
be admitted in his absence. See ibid. And if he finds the risk
to his privacy unacceptable, he is free to make alternate ar-
rangements—to opt for a solitary abode, to choose a
roommate more attuned to his own interests, or to
secure any items that he does not wish a stranger to see.
But when the tenant is forcibly removed from the premises
after objecting to the visitor’s entry, he can take no such
action. He has already done all that he can do to protect
24 No. 07-1014
his privacy interest—he has told the visitor to leave. He
has not assumed the risk that his co-tenant may subse-
quently admit the visitor, because all choice has been
taken from him in his involuntary removal from the
premises.
That Henderson’s arrest and removal from his home
was lawful does not alter the analysis. If the arrest were
invalid, that might be an additional reason to deem the
ensuing search of the home unlawful. See Randolph, 547 U.S.
at 121, 126 S. Ct. at 1527. But the fact that police had
a legitimate basis on which to take Henderson into
custody does not mean that they were entitled to ignore
his refusal to permit a search of his home. An individual
does not lose all of his Fourth Amendment rights upon
his arrest. See Maryland v. Buie, 494 U.S. 325, 336, 110 S. Ct.
1093, 1099 (1990) (acknowledging that individual
arrested at home retains privacy interest in the house that
ordinarily precludes a “top-to-bottom” search of the
premises without a warrant) (citing Chimel v. California,
395 U.S. 752, 89 S. Ct. 2034 (1969)). Before being carted
off to jail, Henderson had already told the police to get out
of his home and in so doing had made known his objec-
tion to a search of the premises. His arrest meant only
that he was no longer present to enforce his objection, and
for the reasons I have just mentioned, his involuntary
absence should not be viewed as sufficient to nullify
his objection. As the Ninth Circuit has rightly pointed
out, if police may not remove a tenant in order to prevent
him from objecting to a search of his home, as Randolph
makes clear, 547 U.S. at 121, 126 S. Ct. at 1527, then “surely
they cannot arrest a co-tenant and then seek to ignore
an objection he has already made.” Murphy, 516 F.3d
at 1124-25.
No. 07-1014 25
In sum, the fact that Henderson voiced an objection to
a search of his home when the police arrived on his door-
step was sufficient under Randolph to preclude the ensuing
search. Mrs. Henderson’s subsequent consent to the search
merely produced the tie between co-tenants that Randolph
deems insufficient to authorize a search. In the face of that
tie, the police were obligated to obtain a warrant before
searching the home. Given what Mrs. Henderson had told
the police, I have little doubt that they could have secured
such a warrant. How long Henderson’s objection would
have remained valid as against Mrs. Henderson’s consent
to search the home, and whether the police would have
been entitled to return to the home at a later date during
his incarceration and search the premises with
her consent, are difficult questions, but not ones that
we need to answer in this case. Mr. Henderson unequivo-
cally refused to consent to a search on the very same
occasion that police did search the premises, and his
contemporaneous objection was enough to render the
search invalid.
I respectfully dissent.
USCA-02-C-0072—8-6-08