IV Consent Versus "search" or "seizure"

• Library: Illinois Decisions on Search and Seizure (2017 Ed.)

IV. CONSENT VERSUS "SEARCH" OR "SEIZURE"

Fernandez v. California, ___ U.S. ___ , 134 S.Ct. 1126 (2014) (Officers, responding to a gang-related robbery, were led to defendant's apartment by an eyewitness. Prior to knocking on the defendant's apartment door, they heard sounds of screaming and fighting coming from the building. When officers knocked on the door, a woman answered holding a baby. The officers observed that her face was red, that she had a large bump on her nose, and that she had blood on her shirt and hand from what appeared to be a fresh injury. When asked about her injuries, the woman responded that she had been in a fight. When the officer asked the woman to step out of the apartment so that he could perform a protective sweep, the defendant appeared at the door. It was at that time that the defendant said, "You don't have any right to come in here, I know my rights." Suspecting that the defendant had assaulted the woman, the officer's removed the defendant from the apartment and placed him under arrest. The defendant was subsequently identified by the victim of the earlier robbery, and taken to the police station for booking. Approximately one hour after the defendant's arrest, detectives returned to his apartment and informed the woman that he had been arrested. It was at that time that the detectives received written and oral consent from the woman to search the apartment. In the apartment officers found gang paraphernalia, a butterfly knife, clothing worn by the robbery suspect, and ammunition. The woman's young son also showed the officers where the defendant had hidden a sawed-off shotgun. The defendant was later charged with robbery, infliction of corporal injury and several felony firearms offenses. After the defendant's motion to suppress was denied, he pled nolo contendere to the firearms charges and was later found guilty on the remaining charges. The California Court of Appeals subsequently affirmed the trial court's denial of the defendant's motion and the California Supreme Court denied the defendant's petition for review. In appealing the lower court's decisions to the United States Supreme Court, the defendant argued that his absence should not have invalidated his objection because the police were responsible for it, and that his initial objection to the search of the residence, prior to his arrest, should have remained in effect until he withdrew it. HELD: In order for an objection against a cohabitant's consent to search a residence to remain in effect, the defendant must be physically present. This remains true even if the defendant is later legally arrested and removed from the premises by the police. The consent of someone who has common authority over property is as valid as the consent of the non-consenting person with whom the authority is shared. United States v. Matlock, 415 U.S. 164 (1974). That ruling was extended and reaffirmed in Illinois v. Rodriguez, 497 U.S. 177 (1990), where this Court held that even if an individual consenting to a search of a residence does not have actual common authority over that residence, the search remains lawful so long as the police reasonably believed that the individual was a resident at the time that they consented. An exception to that rule, however, was recognized when this Court held that "a physically present inhabitant's express refusal of consent to a police search [of his home] is dispositive as to him, regardless of the consent of the fellow occupant." Georgia v. Randolph, 547 U.S. 103 (2006). In that opinion, this Court went to great lengths to make clear that its holding was limited to situations in which the objecting occupant is present. Furthermore, the Court's Fourth Amendment cases have repeatedly rejected a subjective approach to evaluating officer's actions. In other words, outside of limited contexts, this Court has never held that an officer's motive invalidates objectively justifiable behavior under the Fourth Amendment. In the case at bar, the defendant's removal was proper given the injuries sustained by the women and the likelihood that she was a domestic abuse victim. As such, an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason. Furthermore, this Court refuses to extend the exception found in Randolph to include instances in which the objecting inhabitant expressly withdraws his objection. The extension of that exception would be improper because it is inconsistent with the "widely shared social expectations" or "customary social usage" on which the Randolph decision is based. When the objecting occupant is standing at the threshold saying "stay out," a friend or visitor invited to enter by another occupant can expect at best an uncomfortable scene and at worst violence if he or she tries to brush past the objector. But when the objector is not on the scene (and especially when it is known that the objector will not return during the course of the visit), the friend or visitor is much more likely to accept the invitation to enter. In short, because it is far more likely that a regular invited visitor would ignore a cohabitant telling him to stay out if that cohabitant was not present during their visit when the other party extended consent, then it is proper to only enforce the cohabitant's objections over the other party's consent when he is present. Also, extending the exception found in Randolph, even for only a reasonable amount of time, would create too many practical complications and questions. Finally, allowing the cohabitant's objection to remain even once he has left the premises interferes with the other cohabitant's right to consent to the search. As such, the appellate court's affirmation of the trial court's decision to deny the defendant's motion to suppress is affirmed).

Pearson v. Callahan, 555 U.S. 223 (2009) (The Utah Court of Appeals vacated respondent's conviction for possession and distribution of drugs, which he sold to an undercover informant he had voluntarily admitted into his house. The defendant then brought a 42 U.S.C. § 1983 civil rights action in federal court, alleging that petitioners, the officers who supervised and conducted the warrantless search of the premises that led to his arrest after the sale, had violated the Fourth Amendment. In this case, although the state argued the police entry was consistent with the consent-once-removed doctrine, the defendant argued the informant's entry into his residence was unconstitutional because the consent-once-removed doctrine had not been approved in the Tenth Circuit. However, the federal district court granted summary judgment in favor of the officers. Noting that other courts had adopted the "consent-once-removed" doctrine - which permits a warrantless police entry into a home when consent to enter has already been granted to an undercover officer who has observed contraband in plain view - the district court concluded that the officers were entitled to qualified immunity because they could reasonably have believed that the doctrine authorized their conduct. HELD: Petitioners were entitled to qualified immunity "because it was not clearly established at the time of the search that their conduct was unconstitutional. When the entry occurred, the consent-once-removed doctrine had been accepted by two State Supreme Courts and three Federal Courts of Appeals, and not one of the latter had issued a contrary decision. Petitioners were entitled to rely on these cases, even though their own Federal Circuit had not yet ruled on consent-once-removed entries"). See also United States v. Herrera-Corral, 2002 WL 69491 (N.D. Ill. 2002) (The doctrine "consent once removed" exists where an undercover agent or government informant (1) enters at express invitation of someone with consent; (2) at that point establishes the existence of probable cause to arrest or search; and (3) immediately summons help from other officers. Here, informant left premises where he saw illicit drugs with no intent to reenter and agents reentered without informant. "Consent once removed" doctrine is partially based on concern of protecting informant within premises, which was not present here. DEA could have procured anticipatory search warrant or warrant via telephone); People v. Finley, 293 Ill. App. 3d 377, 687 N.E.2d 1154 (5th Dist. 1997) (holding that the warrantless entry into defendant's residence was not justified by the "consent once removed" doctrine where the informant was recruited to be an informant shortly after his arrest and consequently officers had no knowledge of his reliability as an informant, the details of the drug purchase such as amount or price were not predetermined, there is no evidence that any money was exchanged between the informant and defendant, defendant never specifically invited the informant into his trailer for the purpose of making a drug sale, and defendant was highly intoxicated at the time of informant's entry into the trailer, thereby undermining any consent given).

Georgia v. Randolph, 547 U.S. 103 (2006) (Despite the defendant's strenuous objections, the defendant's estranged wife granted permission to the police to search the marital residence for evidence of drug use by the defendant. HELD: A warrantless search of a shared dwelling based on consent by one resident is not valid if a physically present co-resident expressly refuses to consent to the police search. A "cotenant's...disputed invitation, without more, give a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all").

Kaupp v. Texas, 538 U.S. 626 (2003) (per curiam) (At least five police officers arrived at defendant's home at 3:00 a.m., were permitted inside by defendant's father, went to defendant's room with a flashlight, and a detective identified himself and stated, "we need to go and talk," to which...