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CA8 en banc avoids applying Randolph to computer search where defendant refused consent before his wife was asked because he was not present and objecting

By John Wesley Hall, Jr.

Can Randolph be defeated merely by removing the defendant refusing to consent? In the Eighth Circuit, yes. The Eighth Circuit en banc held (8-3) that an owner of a computer who refused consent did not prevent the officers from asking his wife for consent under Randolph because the defendant was not present, what it found to be a critical distinction. United States v. Hudspeth, 2008 U.S. App. LEXIS 5157 (8th Cir. March 11, 2008) (en banc) (8-3): Second, unlike Randolph, the officers in the present case were not confronted with a "social custom" dilemma, where two physically present co-tenants have contemporaneous competing interests and one consents to a search, while the other objects. Instead, when Cpl. Nash asked for Mrs. Hudspeth's consent, Hudspeth was not present because he had been lawfully arrested and jailed based on evidence obtained wholly apart from the evidence sought on the home computer...continue to full post

Full post as published by Fourth Amendment on March 12, 2008 (boomark / email).