Cotenants trumping cotenants: the Eighth Circuit takes a diverse stance on cotenants' authority under the Fourth Amendment: United States v. Hudspeth.

• Author: Johnston, Benjamin M.

1. INTRODUCTION

   Reluctantly, John Adams mailed the envelope addressed to his wife, Abigail, knowing the contents could bring about his death. This letter, mailed to his "dear friend," contained a description of his pleas for independence to the Continental Congress, a description that if located by the British, would most certainly subject him to charges of treason. Immediately after Mr. Adams dispatched his letter, he was approached by a British intelligence officer requesting to review the letter. Mr. Adams denied the officer's request and sent him on his way. Later, when the letter arrived to the unsuspecting Abigail, it was accompanied by a British officer who asked if he could examine the letter. Ignorant as to the letter's contents, Abigail consented to the request and the officer discovered the treasonous materials, resulting in the seizure of the letter and the subsequent arrest of Mr. Adams. Would our founding fathers have considered this particular exercise of police power beyond reproach?

   While this fictional illustration is distinguishable from the more disturbing factual scenario presented in United States v. Hudspeth, it nevertheless embodies the same question: If two individuals have common authority over a piece of property, can government officials purposely ignore one party's express refusal to search and instead accept the consent of the other party? Hudspeth asks this question in the unforgiving light of the despicable acts of a pedophile; where a computer containing child pornography takes the place of John Adams' rebellious letter. In light of its deplorable factual setting, Hudspeth is a case which must be viewed with an objective eye. In doing so, it is helpful to keep the analogy of John Adams's letter in mind, as one may be, albeit unconsciously, predisposed to the persecution of pedophiles. Because Hudspeth is a case which not only implicates the rights of a pedophile, but the rights of all citizens who wish to object to governmental searches and seizures of their property, objectivity is essential to arriving at the correct conclusion.

2. FACTS AND HOLDING

   On July 25, 2002, the Missouri State Highway Patrol, in cooperation with the Combined Ozarks Multi Jurisdictional Enforcement Team, executed a valid search warrant on Handi-Rak Service, Inc. ("Handi-Rak"). (2) During the process of executing the search warrant, law enforcement officers were confronted by Handi-Rak's CEO, Roy J. Hudspeth ("Hudspeth"). (3) Hudspeth was promptly briefed on the situation and informed of his Miranda rights by Corporal Daniel Nash ("Cpl. Nash"). (4) Initially, Hudspeth was more than cooperative--answering all the officers' questions and waiving his right to an attorney. (5) Further, when one of the officers, operating outside of the scope of the warrant, identified pornographic images on a compact disc next to Hudspeth's office computer, Hudspeth gave Cpl. Nash verbal and written consent to have the computer searched. (6) When the sanctioned search produced child pornography, Hudspeth explained that he had obtained the images over the internet and copied them onto the compact discs next to the computer. (7) He then pleaded ignorance to the officers, claiming he was unaware his actions constituted an illegal act. (8) The officers then inquired as to whether Hudspeth accessed child pornography on his home computer but Hudspeth refused to answer the officers' questions and explicitly denied Cpl. Nash's request to search his home computer. (9) Upon Hudspeth's refusal, Cpl. Nash placed him under arrest based solely on the evidence already obtained. (10)

   Pursuant to his belief that Hudspeth's home computer also contained child pornography, Cpl. Nash and three additional officers proceeded to Hudspeth's residence. (11) Upon arrival, Cpl. Nash was greeted by Georgia Hudspeth ("Mrs. Hudspeth"), Hudspeth's wife, and the couple's two children. (12) After proper introductions were made and the children were ushered away, Cpl. Nash explained to Mrs. Hudspeth that her husband had been arrested for possession of contraband, but neglected to tell her that Hudspeth refused to give Cpl. Nash consent to search the family's home computer. (13) Cpl. Nash then asked for permission to search the home, which Mrs. Hudspeth promptly denied. (14) Immediately following her denial, Cpl. Nash confined his request to permission to confiscate the couple's home computer. (15) Mrs. Hudspeth seemed unsure as to what to do and Cpl. Nash responded to her tentativeness by informing her that if she denied his request he would leave an armed uniformed officer at the house to ensure evidence was not destroyed while he obtained a search warrant for the computer. (16) Still unsure as to the proper course of action, Mrs. Hudspeth unsuccessfully attempted to contact her lawyer. (17) After a period of approximately thirty minutes, Mrs. Hudspeth consented to Cpl. Nash's request to seize the computer. (18) Upon returning to the station with the computer, but prior to obtaining a valid search warrant, officers searched the computer disks and discovered prolific amounts of child pornography. (19) In addition to the images of unidentified children, police also uncovered a video file which Hudspeth had surreptitiously recorded of his stepdaughter undressing. (20)

   Stemming from the evidence obtained from the search of Hudspeth's home computer, Hudspeth was charged with possession of child pornography and later indicted for producing and attempting to produce child pornography. (21) After the United States District Court for the Western District of Missouri denied Hudspeth's motion to suppress the evidence obtained from his home computer, he entered a conditional guilty plea to possession of child pornography but reserved the right to appeal the court's denial of his suppression motion. (22)

   On February 15, 2006, Hudspeth filed an appeal with the United States Court of Appeals for the Eighth Circuit. (23) He contended that the district court should have granted his motion to suppress because, pursuant to the Fourth Amendment, his express denial of consent to search his home computer could not be overruled by his wife's later consent. (24) In ruling on August 25, 2006, the Eighth Circuit reviewed the case de novo, applying the holdings of United States v. Matlock (25) and Georgia v. Randolph, (26) both of which stand for the proposition that "police must get a warrant when one co-occupant denies consent to search." (27) Reversing the lower court, the Eighth Circuit held that Mrs. Hudspeth's later consent could not effectively waive Hudspeth's Fourth Amendment rights after Hudspeth had previously refused to consent. (28) However, on January 4, 2007, in response to the U.S. Attorney's petition, the Eighth Circuit vacated its August 25 decision and granted a rehearing en banc. (29)

   On rehearing, the Eighth Circuit emphatically recognized that the case before the court was one of first impression. (30) This being the case, the court reexamined the cases of Randolph and Matlock as they related to the present case, reinstated the district court's denial of Hudspeth's motion to suppress, and reversed its own previous decision. (31) The court held that the consent of one who possesses common authority over shared property trumps the previous denial of consent by an absent cotenant. (32) Thus, "the Fourth Amendment was not violated when the officers sought Mrs. Hudspeth's consent despite having received Hudspeth's previous refusal." (33)

3. LEGAL BACKGROUND

   A "search," as referred to in the United States Constitution, is commonly understood to occur when a citizen's reasonable expectation of privacy is infringed upon by the police. (34) In order for a search or a seizure to be lawful it must not impinge upon the rights guaranteed by the Fourth Amendment, namely the right of citizens "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (35) Reasonableness, therefore, is the "touchstone" of the Fourth Amendment. (36) Thus, not only should any search or seizure made by police officers be reasonable within the intent of the constitution, adjudicators should construe the aforementioned Fourth Amendment guarantees liberally in favor of the citizens in order to protect their guaranteed right to privacy. (37) In keeping with this maxim and in order to protect the "'security of one's privacy against arbitrary intrusion by the police,'" (38) a search or seizure devoid of a warrant, absent "a few well-established exceptions," has been deemed per se unreasonable. (39)

   These Fourth Amendment foundational principles have produced the Fourth Amendment exclusionary rule. (40) This rule dictates that any evidence obtained in an unreasonable manner, and therefore in contravention of the Fourth Amendment, is inadmissible at a trial against the accused if a motion to suppress such evidence is filed. (41) Despite this rule, however, the Fourth Amendment and its accompanying exclusionary rule are not devoid of loopholes. To the contrary, many exceptions and exigent circumstances permit warrantless searches or seizures under the Fourth Amendment, making the exclusionary rule inapplicable. (42)

   One such exception to the warrant requirement exists where the lawful owner, possessor, or custodian of property consents to a search or seizure made by police officers. (43) So long as this consent is given knowingly and voluntarily, no warrant is required because the citizen is, in effect, waiving his or her Fourth Amendment rights. (44) This exception raises questions as to whether a search or seizure of property held or occupied by more than one person may be lawfully consented to by only one of the holders without tainting the search as unreasonable and thus inadmissible via the exclusionary rule. Upon a careful reading of relevant case law, it becomes apparent that each time courts attempt to define what is reasonable under the...