Federal Judiciary

Surely, this is not valid Fourth Amendment "consent" to a warrantless search?

It is is in the Ninth. United States v. David Brown, No. 08-30040, __ F.3d __, 2009 WL 1025831 (9th Cir. Apr. 17, 2009), decision available here. (Though arguably not for the Supreme Court, under Georgia v. Randolph, 547 U.S. 103 (2006)).

Players: Decision by Judge Tallman (above left), joined by Judges W. Fletcher and Gould.

Facts: Five or six cops and feds, guns drawn, surround Brown and his female friend, Rishel, on a Spokane street. Id. at *1, *4. They bust Brown on an outstanding warrant and take him to jail. Id. at *1. The cops never ask Brown for his consent to search his residence. Id. The woman, Rishel, was cuffed and told that Brown had guns in the residence he shared with her. Id. Rishel testified that ATF Agent Dale Watson threatened to ?tear the place apart? if she forced him to get a warrant (the agent disputed this). Id. at *2. The district court found that Rishel ?spontaneously consented? to a search of the residence. Id. at *2.

The home was searched, guns were found,§ 922(g) was charged, and the suppression motion was denied. Brown took a conditional plea.

[Ed. Note: Why is the N.D. Cal. U.S.A.O. the only office in the United States that categorically bars conditional pleas?]

Issue(s): ?Brown contends that [Rishel?s] consent was not voluntary, and furthermore that her consent was ineffective as to him because officers should have sought his permission pursuant to Georgia v. Randolph, 547 U.S. 103 (2006).?

Held: ?Taking into account all of the circumstances surrounding her encounter with Agent Watson, we conclude that Rishel was not in custody. Although Brown and Rishel were admittedly approached by five or six officers with guns drawn ?and were both ordered to the ground, handcuffed, and patted down for weapons?all these events occurred in a public setting and there is no evidence that police continued to display their weapons after Brown and Rishel were safely secured.? Id. at *4. ?The remaining voluntariness factors do not tip the scales in Brown?s favor.? Id. ?Given these circumstances, the district court did not clearly err in finding that Rishel voluntarily consented to search the East Augusta residence.? Id. at *5.

Of Note: ?In Georgia v. Randolph, the Supreme Court held that an occupant?s consent to the warrantless search of a residence is not valid as to a physically present co-occupant who expressly refuses consent.? Id. at *5. A co-tenant can consent when the subject as absent, [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.? Id. at *5 (quoting Randolph, 547 U.S. at 121-22) (emphasis added in Brown decision).

Here, then, is the real issue: the feds never asked Brown whether he consented to the search of a residence, whisked him out of the picture, then leaned on the woman, Rishel, to get her to consent. Surely this crosses Randolph?s line? Nope, explains Judge Tallman, in reasoning that ? with all respect ? is unpersuasive. Tallman finds no evidence that the feds removed Brown (and neglected to ask him for consent). intentionally. Id. at *5. ?Brown?s claim that he was intentionally removed to avoid his objection during the consent colloquy with Rishel is mere speculation.? Id. at *6.

Judge Tallman also reassures us that ?it is possible that Brown would have granted his consent? to the search, so it is of less concern that he never was actually asked.

How to Use: Brown is a very troubling consent case, particularly because Judge Tallman revisits old (and favorable) Ninth Circuit law on the issue and either limits it or distinguishes it as dicta. Id. at *5-*6 (limiting United States v. Murphy). One way to distinguish and limit Brown in future cases may be the woman?s ?spontaneous consent? to the search ? a fact oft-repeated in the decision. Judge Tallman concedes that Randolph envisions a ?fine line? in these "co-occupant consent" cases: perhaps if the defendant and co-occupant are actually confronted in the home?s threshold, and the consent isn?t spontaneously offered, Brown can be limited to its facts.

For Further Reading: Our worthy non-sequitur is a must-read: United States v. Olhovsky, __ F.3d __, 2009 WL 1014482 (3rd Cir. Apr. 16, 2009). In Olhovsky, Judge McKee reverses a 1) six year child porn sentence that was 2) five years below the guideline range because it was 3) too high, and thus substantively unreasonable!

A remarkable decision, both for post-Booker sentencing and for child porn cases. (Note that our own Judge Tashima, visiting from the Ninth, was on Olhovsky ? adding to his long line of intriguing sentencing decisions).

For a particularly thoughtful and in-depth discussion of Olhovsky, visit the Third Circuit's blog at http://circuit3.blogspot.com/ . AFPD Sarah Gannett explains the important case in detail (and, just below the Olhovsky post, describes an interesting en banc sentencing decision on the "gilded cage" for white collar defendants). Id. (discussing United States v. Tomko, __ F.3d __, 2009 WL 1025876 (3d Cir. April 17, 2009) (en banc)).

Image of Judge Tallman from http://www.uscourts.gov/ttb/2007-09/newLeadership/index.html

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Full post as published by Ninth Circuit Blog on April 18, 2009 (boomark / email).