Today’s training bulletin will discuss consent searches at homes. The bulletin will discuss United States Supreme Court, 10th Circuit Court of Appeals, and Colorado court decisions concerning such searches. Before getting started, as always, I am going to read this disclaimer:
Bulletin Disclaimer:
I am not an attorney and make no claim to be an attorney. I developed this scenario/training bulletin based on my 38 years of law enforcement experience, my professional application of the Fourth Amendment (based on case law) in the field as a law enforcement officer, and my extensive study of case law pertaining to search and seizure.
I developed and am providing this training bulletin for information only. I make no claim that my interpretations and perceptions of case law provided in the answers to the scenarios are correct in any or all circumstances. All government agents and any other person gathering information from this presentation should consult their respective law enforcement agencies, City Attorney’s Office, District Attorney’s Office, State Attorney General’s Office, or United States Attorney’s Office for their interpretation and application of this information.
Let’s Begin
I field a lot of questions concerning an officer’s ability to seek a consent search of a residence, specifically when two people with standing (authority to grant consent) are at the home. As such, for this bulletin, I am providing two common scenarios officers face when going to a home to conduct a knock and talk and seek consent to search the home. The answer, analysis, and case law information follow each scenario.
Scenario #1:
Officers go to a residence to conduct a “knock and talk” on a home that they suspect the occupants to be selling illegal narcotics from. Upon contacting the two residents of the location, both of which have unlimited access to anywhere in the home, the officers are invited in, at which time the officers observed some crack cocaine on a coffee table in the living room in plain view. Upon the officers seeing the crack cocaine, one of the residents spontaneously stated “Oh shit, that’s my crack cocaine.” The officers arrested the resident. The officers asked the in-custody resident if they could search the residence for additional narcotics and the resident said “no.” One of the officers escorted the in-custody resident to a patrol car while the other officer began talking to the other resident. During the course of the conversation, the other resident granted consent to the officers to search the home. The officers found additional narcotics. Was the consent/search valid or did the searching of the home constitute a violation of the Fourth Amendment?
The search is valid. According to the Court in Georgia v. Randolph (2006), “a physically present co-occupant’s stated refusal to permit entry renders warrantless entry and search unreasonable and invalid to him.”
However, in Fernandez v. California (2014), the Court further clarified that if one party revokes consent and officers have a valid reason to remove the individual from the residence (e.g., probable cause to arrest), after the suspect is removed, officers can go back up to the residence and contact the other party. If that person consents to the search the residence, officers can proceed. The key is that the suspect is no longer present when consent is granted.
What happens if the individual that officers believe will not grant consent is present at the residence, but officers do not ask the individual for consent (rather they ask another person with standing for consent to search and that person grants consent) and the individual fails to tell the officers they cannot search?
The consent is valid. According to the Court in Georgia v. Randolph:
[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 . . . [s]o 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 . . . .
This position was further clarified in the 11th Circuit Court’s United States v. Morales decision. According to the 11th Circuit, “had Morales objected to the search, it might be different. But he didn’t. And his failure to do so rests on him. “[A] man who does not speak when he ought, shall not be heard when he desires to speak.”
Case Law: Georgia v. Randolph (2006); Fernandez v. California (2014); United States v. Morales (11th Cir., 2018).
Scenario #2:
Officers responded to a home concerning found property. Upon arriving, officers contacted a woman in the driveway of the residence. The woman lives in the home with her husband. The woman, who has unlimited access to anywhere in the home, tells officers that she was in the master bedroom when she opened a duffle bag belonging to her husband and found methamphetamine and drug paraphernalia inside the bag. The woman invited the officers inside the home to retrieve the meth and drug paraphernalia. As the officers entered the home and walked into the living room, the officers saw the husband sitting in the living room watching television. Two of the officers stood in the living room with the husband while one of the officers accompanied the woman to the master bedroom to recover the drugs and paraphernalia. One of the officers in the living room told the husband the officers were there to assist in a civil standby. The husband told the officers they could not search and to leave the residence. While the officers were talking to the husband and after the husband told the officers to leave, the woman handed the officer (who accompanied the woman to the master bedroom) the open duffle bag and the officer recovered the drugs and paraphernalia. The officers subsequently arrested the husband for possession of methamphetamine and drug paraphernalia. Was the recovery of the drugs and paraphernalia and arrest of the husband legal, or did the recovery of the drugs and paraphernalia (and the husband’s arrest) violate the husband’s Fourth Amendment rights because the husband, who also has unlimited access to anywhere in the home, told the officers to leave the location prior to the officer’s recovery of the drugs and paraphernalia?
The recovery of the drugs and paraphernalia, and arrest of the husband is legal. The husband, although present at the residence, was not present when the consent was granted by the wife. The husband’s objection had to be contemporaneous with the wife’s consent to the officers in order for the objection to trump the consent.
The United States Supreme Court, in its Georgia v. Randolph (2006) decision drew a fine line concerning the consent to search a residence when two parties are present and one consents while the other objects. The Court opined that the objecting party (the husband in the above scenario) must object at the door in order for the objection to overrule the consent. The Court wrote the following:
We have to admit that we are drawing a fine line; if 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.
The Colorado Supreme Court, in its People v. Williams (2019) decision reiterated the Court’s Georgia v. Randolph opinion. Additionally, the Colorado Supreme Court provided further clarification and guidance concerning a consent objector’s presence on the premises and when the objector’s objection is applicable:
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 objected as officers “propose[d] to make a consent search.”
Case Law: People v. Williams (Colo. 2019), Georgia v. Randolph (2006), Fernandez v. California (2014).
Takeaways
The federal and state court decisions provided in this training bulletin highlight the importance of officers knowing, understanding, and following case law concerning asking for and gaining consent to search a home.
- Randolph’s narrow exception concerning gaining consent to search a home applies only if two requirements are satisfied: (1) the objecting occupant must be physically present on the premises as officers “propose[d] to make a consent search”; and (2) the objecting occupant must object as officers “propose[d] to make a consent search.”
- If one party revokes consent and officers have a valid reason to remove the individual from the residence (e.g., probable cause to arrest), after the suspect is removed, officers can go back up to the residence and contact the other party. If that person consents to the search the residence, officers can proceed.
- Officers cannot remove a potential objector from the home without a valid reason. If there is evidence officers removed a potentially objecting tenant from the entrance for the sake of avoiding a possible objection, the consent search (following the removal) will be suppressed.
- A potential objector who is present and fails to object/speak up when officers ask for consent, cannot contest the granted consent. “[A] man who does not speak when he ought, shall not be heard when he desires to speak.”
I hope you found this information helpful. Please let me know if you have any questions on this topic or other topics.