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Under the U.S. Supreme Court's ruling in Georgia v. Randolph, when a wife consents to a police search of the marital home but the husband objects, can the police validly rely on the wife's consent to search after the husband is arrested and taken to jail?

Under the U.S. Supreme Court's ruling in Georgia v. Randolph, when a wife consents to a police search of the marital home but the husband objects, can the police validly rely on the wife's consent to search after the husband is arrested and taken to jail? A divided three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued this decision today.

Circuit Judge Diane S. Sykes wrote the majority opinion, in which Senior Circuit Judge Daniel A. Manion joined. According to the majority's holding, the husband's objection to the search no longer precluded a valid search based solely on the wife's consent once the husband had been arrested and taken from the scene.

Circuit Judge Ilana Diamond Rovner dissented. Her dissenting opinion begins:

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).

Here's hoping that the Seventh Circuit grants rehearing en banc to consider further this very interesting legal issue.

Full post as published by How Appealing on August 06, 2008 (boomark / email).