United States v. Henderson

ROVNER, Circuit Judge,

dissenting.

There is one and only one reason that this case is not on all fours with Georgia v. *786 Randolph: When Kevin Henderson told the police to “get the fuck 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 , 2 L.Ed.2d 1514 (1958). That privacy interest is at its strongest within the confínes of one’s home. Kyllo v. US., 533 U.S. 27, 31 , 121 S.Ct. 2038, 2041 , 150 L.Ed.2d 94 (2001); Payton v. New York, 445 U.S. 573, 589 , 100 S.Ct. 1371, 1381-82 , 63 L.Ed.2d 639 (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 , 164 L.Ed.2d 208 (2006). Exceptions to this rule are “jealously and carefully drawn.” Ibid, (quoting Jones, 357 U.S. at 499 , 78 S.Ct. at 1257 ).

A search by consent is, of course, one of the recognized exceptions to the warrant requirement, id. at 109, 126 S.Ct. 1515 , 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 consent 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 dis-positive. They see the contemporaneous presence of the objecting tenant, along with his consenting co-tenant, as key to Randolph’s social expectations 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 783. 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 783-84; 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 783-84.

Randolph is a limited holding that “expressly disinvites” any application to cases with materially different facts. United *787 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 permission 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 welcome 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 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 tenant’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 , 39 L.Ed.2d 242 (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 arrangements — 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 his privacy interest — he has told the visitor to leave. He *788 has not assumed the risk that his co-tenant may subsequently 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 , 108 L.Ed.2d 276 (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 , 23 L.Ed.2d 685 (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 objection 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 .

In sum, the fact that Henderson voiced an objection to a search of his home when the police arrived on his doorstep 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 unequivocally 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.