Federal Judiciary

En Banc Eighth Limits Georgia v. Randolph

By Robert Loblaw

U.S. v. Hudspeth, 05-3316 (8^th Cir., March 11, 2008)

The en banc Eighth Circuit has just reversed a panel holding in an interesting Fourth Amendment consent case. From my earlier coverage:

This Eighth Circuit appeal addresses whether a wife?s consent allowed police to search her husband?s computer after the defendant, then in custody, had refused consent. Officers found child pornography during an unrelated search of defendant Roy Hudspeth?s business computer. They asked for permission to search his home computer as well, but he refused. The officers arrested Hudspeth and then proceeded to his home where they convinced his wife to allow them to search her husband?s computer. More child pornography was found, leading to his conviction.

Hudspeth appealed, raising various Fourth Amendment arguments against the second search, including a challenge to the legality of asking his wife to consent to the search after Hudpseth had refused. The majority sides with Hudspeth on this issue, explaining that the officers should have obtained a warrant after Hudspeth refused to consent. Drawing on the Supreme Court?s 2006 decision in Georgia v. Randolph, the majority concludes that the officers? decision to sidestep Hudspeth by seeking his wife?s consent was unlawful.

Judge Riley dissents, arguing that Randolph addressed the lawfulness of obtaining consent from a co-tenant in the presence of a non-consenting suspect. He does not believe that the same analysis applies to the facts of the present case. He also explains that today?s decision will create incentives for the cops to avoid asking for a suspect?s consent at all, and instead go straight to the unsuspecting spouse.

By a vote of 8-3, the en banc Eighth has sided with Judge Riley. Indeed, Judge Riley writes the majority opinion, which pretty much tracks his earlier dissent. The majority focuses on the fact that Mr. Hudspeth was not physically present when he refused to consent to a search, whereas the Supreme Court?s decision in Randolph emphasized the defendant?s physical presence and immediate objection to a search.

Judge Melloy leads the dissenters, arguing that the issue of the objecting cotenant’s location is a red herring.  He writes,

It seems inconceivable to me that a core value of the Fourth Amendment, the expectation of privacy in one?s own home, would be dependent upon a tape measure. The objecting co-tenant in Randolph was at the front door. At what point does that co-tenant lose his or her right to object to the search? At the front porch? In the front yard? At the curb? I cannot believe the Supreme Court intended to make one?s expectation of privacy dependent upon the happenstance of location. 

Full post as published by Decision of the Day on March 11, 2008 (boomark / email).