Friday, November 14, 2008

Uninformed Consent

United States v. Lopez, No. 081269-cr (2d Cir. November 13, 2008) (McLaughlin, Leval, Pooler, CJJ)

Albert Lopez violated his supervised release by failing a drug test, and marshals went to his house to arrest him. After he was cuffed, the marshals took his girlfriend upstairs to get clothes for him. Once there, they asked the girlfriend if they could search the bedroom. She gave consent and the marshals found a loaded gun under a pillow. Lopez was charged with possessing the gun, and moved to suppress arguing that the search of the bedroom was unreasonable because, although the girlfriend consented, the marshals did not seek his consent.

On appeal, the circuit disagreed. Under the relevant Supreme Court precedents, the Fourth Amendment permits searches consented to by a co-occupant. Nor did Lopez’ case present a situation like that in Georgia v. Randolph, 547 U.S. 103 (2006), which held that where one occupant consents to the search but the other objects, the search is unreasonable as to the objector. Rather, “having obtained the consent of one co-occupant, the officers are under no obligation to inquire of the other occupant whether he consents, even when the other occupant is present at the premises when the consent is given.” Indeed, dictum in Randolph specifically noted that officers are not required to seek consent from potential objectors.

Here, the girlfriend’s consent was voluntary, and there was no claim that the marshals separated her from Lopez to hide the fact that they were going to solicit her consent. Nor did it matter that the marshals would not have to “find” Lopez because he was right downstairs. Consent by a co-occupant suffices even when a potentially objecting co-occupant is readily accessible.

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