                         UNITED STATES, Appellee

                                         v.

                  Darrel A. WESTON, Staff Sergeant
                    U.S. Marine Corps, Appellant

                                  No. 08-0594
                        Crim. App. No. 200600985

       United States Court of Appeals for the Armed Forces

                          Argued March 17, 2009

                          Decided June 11, 2009

STUCKY, J., delivered the opinion of the Court, in which BAKER
and RYAN, JJ., joined. EFFRON, C.J., filed a separate opinion
concurring in the result. ERDMANN, J., filed a separate opinion
concurring in the result.


                                     Counsel


For Appellant:    Major Richard D. Belliss, USMC (argued).


For Appellee: Captain Geoffrey S. Shows, USMC (argued); Colonel
Louis J. Puleo, USMC, and Major Tai D. Le, USMC (on brief);
Major Elizabeth A. Harvey, USMC, Commander Paul LeBlanc, JAGC,
USN, and Brian K. Keller, Esq.


Military Judge:    B. W. MacKenzie


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Weston, 08-0594/MC


     Judge STUCKY delivered the opinion of the Court.

     There was something odd about the electric razor in the

bathroom.    Staff Sergeant (SSgt) ME, a female Marine court

reporter, noticed it sitting on the wall locker shelf in the

bathroom she shared with Appellant, the senior court reporter,

whom she knew to be experienced with computers and surveillance

equipment.   SSgt ME typically changed clothes in the bathroom

and for the past year had felt that she was being watched, a

feeling that she attributed to paranoia.   But this time the

circumstances were simply too odd and her suspicions too strong.

SSgt ME took the razor with her when she left work that day.

Her attempt to open the razor’s casing ended at Sears with a

“Torque” T7 screwdriver.   Inside the razor she found a camera.

     We granted review in this case to determine two issues.

First, whether the search of Appellant’s house was reasonable

where Appellant objected to the search, but was not physically

present when the search was conducted pursuant to his wife’s

consent.    Second, if, as Appellant argues, the search was

unreasonable under Georgia v. Randolph, 547 U.S. 103 (2006),

whether the inevitable discovery exception would allow admission

of the seized evidence.    As we find that the search was

reasonable under these circumstances, we do not reach the second

issue.




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United States v. Weston, 08-0594/MC


                            I.   Background

        Following her discovery of the hidden camera, SSgt ME

contacted both the Provost Marshal’s Office (PMO) and

Appellant’s wife to report the discovery.     When Appellant and

his wife arrived at their home that evening, they were met by

military police who, after granting the wife permission to

accompany Appellant, followed them to the PMO where they were

placed in separate rooms.

        Once in the room, agents of the Criminal Investigative

Division informed Appellant of his rights under Article 31,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 831 (2000),

and Military Rule of Evidence (M.R.E.) 305.    Appellant promptly

invoked his right to remain silent and to consult with an

attorney.    When the agent questioning Appellant asked for

consent to search Appellant’s home, Appellant unequivocally

objected.    The agent then left Appellant alone in the room.

Appellant used the time to call a friend, Robert Fricke, who was

a former military judge and Marine Corps judge advocate.      That

conversation was interrupted when the agents took Appellant’s

cellular phone away and placed him incommunicado in a holding

cell.

        Following Appellant’s refusal to consent to a search of the

home, the same agent who asked Appellant for consent asked Mrs.

Weston, who was sitting in a different room, the same question.


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United States v. Weston, 08-0594/MC


Mrs. Weston consented to the search.      She did not ask whether

the investigators had asked her husband to consent, and the

investigators did not inform her that he had refused consent.

     The search of the house Appellant and his wife lived in

proceeded with Mrs. Weston present.      During the search Mr.

Fricke telephoned Mrs. Weston twice.      The first call was to

inquire as to the family’s welfare; the second was to inform

Mrs. Weston that she could, and in Mr. Fricke’s opinion should,

withdraw her consent to the search.      Mrs. Weston did so

immediately.   The agents searching the home gathered up the

materials they had already seized and left the home.      Among

those items was Appellant’s computer.      A subsequent search of

the computer revealed nonconsensual images of SSgt ME changing

her clothes and using the bathroom.      The computer also contained

photos of the interior of SSgt ME’s house.

                      II.    Procedural Posture

     Appellant was charged with three violations of the Uniform

Code of Military Justice (UCMJ).       The first two charges were for

assault and housebreaking, under Articles 128 and 130, UCMJ, 10

U.S.C. §§ 928, 930 (2000).    The third charge involved two

specifications of invasion of privacy and one specification of

wrongfully impeding an investigation.      Article 134, UCMJ, 10




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United States v. Weston, 08-0594/MC


U.S.C. § 934 (2000).   A general court-martial with members found

Appellant guilty of housebreaking and of the two specifications

of invasion of privacy.

     Prior to trial, Appellant moved to suppress the evidence

that was seized from his home.     The military judge denied this

motion.   On appeal, a panel of the United States Navy-Marine

Corps Court of Criminal Appeals (CCA) held that the search of

Appellant’s home was unreasonable and violated Appellant’s

Fourth Amendment rights.    United States v. Weston, 65 M.J. 774,

785 (N-M. Ct. Crim. App. 2007).     The Government moved for a

rehearing en banc.   On rehearing, the CCA reversed the panel,

holding that the military judge did not abuse his discretion in

denying the defense motion to suppress.        United States v.

Weston, 66 M.J. 544, 546-47 (N-M. Ct. Crim. App. 2008).

                           III.   Discussion

     Appellant argues that the search of his home was

unreasonable under Georgia v. Randolph, and, therefore, the en

banc CCA opinion must be overturned.     We disagree.    The facts of

this case are distinguishable from those of Randolph, and are

more like those of the cases Randolph specifically preserved.

     We review a military judge’s decision to admit evidence for

an abuse of discretion.    United States v. Gallagher, 66 M.J.

250, 253 (C.A.A.F. 2008).    We review findings of fact for clear




                                   5
United States v. Weston, 08-0594/MC


error and conclusions of law de novo.      Id. at 253 (citing United

States v. Flores, 64 M.J. 451, 454 (C.A.A.F. 2007)).

     The Fourth Amendment provides:

     The right of the people to be secure in their persons,
     houses, papers, and effects, against unreasonable searches
     and seizures, shall not be violated, and no Warrants shall
     issue, but upon probable cause, supported by Oath or
     affirmation, and particularly describing the place to be
     searched and the persons or things to be seized.

U.S. Const. amend. IV.

     Ordinarily, warrantless entry into a person’s house is

unreasonable per se.   Randolph, 547 U.S. at 109.      While the rule

against warrantless entry is vigilantly guarded, the voluntary

consent of an individual possessing authority is one “carefully

drawn” exception.   Jones v. United States, 357 U.S. 493, 499

(1958); see Illinois v. Rodriguez, 497 U.S. 177, 181 (1990).

Voluntary consent to search may be obtained from the person

whose property is to be searched or from a fellow occupant who

shares common authority over the property.      United States v.

Matlock, 415 U.S. 164, 171 (1974); United States v. Gallagher,

66 M.J. 250, 253 (C.A.A.F. 2008).

     In Matlock, consent to search was granted by the co-

occupant, who was on the premises while the defendant was

detained in a police car nearby.       Matlock, 415 U.S. at 166;

Randolph, 547 U.S. at 109-10.   Ultimately, the Court determined

that “the consent of one who possesses common authority [or



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United States v. Weston, 08-0594/MC


other sufficient relationship] over premises or effects is valid

as against the absent, nonconsenting person with whom that

authority is shared.”    Matlock, 415 U.S. at 170-71; see

Gallagher, 66 M.J. at 253; United States v. Rader, 65 M.J. 30,

30-31 (C.A.A.F. 2007).     Common authority over a home extends to

all items within the home, unless the item reasonably appears to

be within the exclusive domain of the third party.    Gallagher,

66 M.J. at 253-54 (holding that an unlocked briefcase located

within an attached garage, which had been converted into a den,

fell within the common authority of Appellant’s wife).

Additionally, common authority can be obtained via mutual use of

the property by a person with joint access or control.      Rader,

65 M.J. at 33-34 (quoting Matlock, 415 U.S. at 171 n.7) (holding

that a roommate with shared access to another’s computer has

common authority over the computer and can grant consent to

search).

     Appellant wishes us to find that the search of his home was

unreasonable in light of Randolph.     In Randolph, the Supreme

Court addressed the application of the Matlock rule where the

nonconsenting occupant was “physically present” when he refused

permission to search.    Randolph, 547 U.S. at 109.   The Supreme

Court held that express refusal by a physically present co-

occupant renders a warrantless search unreasonable and invalid

as to him.   Id. at 106.    The specific combination of the


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United States v. Weston, 08-0594/MC


physical presence of the cotenant at the scene, plus the

cotenant’s “immediate challenge” renders the warrantless search

unreasonable and invalid.    Randolph, 547 U.S. at 111, 113.

       The distinction between an objection to a search lodged by

a cotenant who is physically present and one who is not is a

formal one, but it is the one explicitly drawn by the Supreme

Court in Randolph:

         If those cases [Matlock and Rodriguez] are not to
         be undercut by today’s holding, we have to admit
         that we are drawing a fine line; if a potential
         defendant with self-interest in objecting is in
         fact at the door and objects, the co-tenant’s
         permission does not suffice for a reasonable
         search, whereas the potential objector, nearby but
         not invited to take part in the threshold
         colloquy, loses out.

         This is the line we draw, and we think the
         formalism is justified.

Randolph, 547 U.S. at 121.

       In his separate opinion, Judge Erdmann distinguishes a

“nonconsenting” cotenant, such as Matlock (sitting in the squad

car) and Rodriguez (asleep in another room), from an “objecting”

one.   United States v. Weston, __ M.J. __ (7) (C.A.A.F. 2008)

(Erdmann, J., concurring in the result).   This distinction is

not compelled by Supreme Court precedent, and we are unwilling

to draw it.   The term “nonconsenting” is general and inclusive.

It encompasses all who do not expressly consent, including those

who refuse, those who remain silent, and those who are not



                                  8
United States v. Weston, 08-0594/MC


asked.   Reasonableness of a warrantless search due to voluntary

consent is a simple binary proposition; either there is consent

or there is not.    Matlock determined that a cotenant can provide

consent to search, and Randolph merely laid out the limited

circumstances under which a cotenant’s objection can overrule

that consent.

     Appellant urges us to extend the holding of Randolph and

adopt the reasoning of the United States Court of Appeals for

the Ninth Circuit in United States v. Murphy, where the court

discounted the significance of the physical presence and

immediate challenge of the party not consenting to the search.

516 F.3d 1117, 1123-24 (9th Cir. 2008).    Appellant further

argues that we should look more generally to society’s widely

shared social expectations in determining the reasonableness of

consent searches.   We decline to do so.

     While “widely shared social expectations” underlie the

reasoning in Randolph, 547 U.S. at 111 (“The constant element in

assessing Fourth Amendment reasonableness in the consent cases,

then, is the great significance given to widely shared social

expectations . . .”), the Supreme Court specifically declined to

overrule Matlock and drew the line with the physical presence at

the threshold.   See id. at 120-22.   We decline to adopt the

Ninth Circuit’s reasoning and thus do not expand the holding of

Randolph at the expense of Matlock.


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United States v. Weston, 08-0594/MC


     Where one party has joint access and control to a property

and voluntarily consents to a search, the warrantless search is

reasonable.   Rather than Murphy, we find more persuasive the

approach adopted by the United States Courts of Appeals for the

Seventh and Eighth Circuits, which held that Randolph did not

“permanently disabl[e] [a cotenant’s] shared authority to

consent to an evidentiary search of her home.”   United States v.

Henderson, 536 F.3d 776, 777 (7th Cir. 2008); see United States

v. Hudspeth, 518 F.3d 954, 960-61 (8th Cir. 2008).

     Appellant also argues that the Criminal Investigative

Division (CID) agents removed him from his home in order to

prevent him from voicing an effective objection to the search.

Randolph recognizes an exception to its holding in cases where

there is evidence “that the police have removed the potentially

objecting tenant from the entrance for the sake of avoiding a

possible objection.”   Randolph, 547 U.S. 121.   In such cases, a

search consented to by the remaining tenant may not be

reasonable.   Id.   In this case, however, there is no evidence

that the agents removed Appellant from his home so that he could

not effectively object to its search; the objection was not

lodged until Appellant was at the PMO and there were no

circumstances that should have led the police to anticipate it.

     Here, the search was reasonable; the CID obtained consent

from Appellant’s wife who possessed common authority over the


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United States v. Weston, 08-0594/MC


premises.   As in Matlock, Appellant was a nonconsenting party

who shared authority over the premises, but was not present to

provide immediate challenge to his wife’s consent to search.

The “fine line” drawn by the Supreme Court in Randolph indicates

that physical presence and immediate challenge is required for

the nonconsenting tenant’s objection to nullify the

reasonableness of the search.    That was not the case here, thus

the holding of Randolph does not apply and the search was

reasonable.

                           IV.   Decision

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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United States v. Weston, 08-0594/MC


      EFFRON, Chief Judge (concurring in the result):

      I agree with that portion of Judge Erdmann’s separate

opinion highlighting the distinctions between the present case

and the guidance of Georgia v. Randolph, 547 U.S. 103 (2006),

and United States v. Matlock, 415 U.S. 164 (1974).      See __ M.J.

__ (3-7) (Erdmann, J., concurring in the result).    In that

context, I have reservations about the majority opinion’s

attempt to define the Randolph-Matlock relationship, see __ M.J.

__ (6-10), particularly in view of the uncertain contours of

“widely shared social expectations” and “immediate challenge[s]”

under Randolph, 547 U.S. at 111, 113.   Instead, I would resolve

the present appeal under the established principles of

inevitable discovery.

      As a general matter, “[e]vidence obtained as a result of an

unlawful search or seizure made by a person acting in a

governmental capacity is inadmissible against the accused . . .

.”   Military Rule of Evidence (M.R.E.) 311(a).   Among the

exceptions to this general rule, the inevitable discovery

doctrine provides that evidence from an otherwise unlawful

search or seizure “may be used when the evidence would have been

obtained even if such unlawful search or seizure had not been

made.”   M.R.E. 311(b)(2); see Nix v. Williams, 467 U.S. 431, 444

(1984); United States v. Wallace, 66 M.J. 5, 10 (2008); Manual

for Courts-Martial, United States, Analysis of the Military
United States v. Weston, 08-0594/MC


Rules of Evidence 311(b)(2) app. 22 at A22-17 (2008 ed.).      In

applying the inevitable discovery doctrine, we bear in mind that

it is an exception that must be interpreted narrowly so that it

does not subsume the general prohibition on the use of evidence

obtained from unlawful searches.       See 6 Wayne R. LaFave, Search

and Seizure, §11.4(a) (4th ed. 2004).       Assuming that the search

of Appellant’s home was unlawful, see __ M.J. __ (1, 4-8)

(Erdmann, J., concurring in the result), the present case falls

well within the narrow confines of the inevitable discovery

exception.

     To demonstrate inevitable discovery, the prosecution must

establish by a preponderance of the evidence that “when the

illegality occurred, the government agents possessed, or were

actively pursuing, evidence or leads that would have inevitably

led to the discovery of the evidence and that the evidence would

inevitably have been discovered in a lawful manner had not the

illegality occurred.”   United States v. Kozak, 12 M.J. 389, 394

(C.M.A. 1982).   Alternatively, a military judge may deny a

defense suppression motion under the inevitable discovery

doctrine if assured that “the routine procedures of a law

enforcement agency would inevitably find the same evidence, . .

. even in the absence of a prior or parallel investigation.”

United States v. Owens, 51 M.J. 204, 210-11 (C.A.A.F. 1999).




                                   2
United States v. Weston, 08-0594/MC


     In the present case, the Government established that at the

time of the alleged unlawful search, law enforcement officers

possessed evidence that would have inevitably led to the

discovery of the evidence pursuant to a valid probable cause

search under M.R.E. 315(a).   Prior to searching the Weston home

under the now-disputed consent provided by Appellant’s wife, law

enforcement officials possessed the following information, more

than sufficient to establish probable cause, that would

inevitably have led to discovery of the evidence at issue:    (1)

Staff Sergeant (SSgt) ME -- the victim of Appellant’s concealed

photography -- reported to the military police the highly

unusual fact that in the shared restroom attached to the office

she occupied with Appellant, she had located a micro-camera

hidden inside an electric razor; (2) based upon her personal

knowledge of Appellant, she identified the razor with the

concealed camera as Appellant’s property and presented it to the

military police; (3) upon presentation of the razor and

concealed camera, SSgt ME informed agents in the Criminal

Investigation Division (CID) that Appellant had “an extensive

knowledge of computers” and that she had seen similar

surveillance cameras in his home on prior occasions; (4) SSgt ME

told the military police that after discovering the concealed

camera, she contacted Appellant’s wife, warned his wife of her

suspicions, and was told by his wife that Appellant had locked


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United States v. Weston, 08-0594/MC


himself in the home computer room for approximately one hour

after work that day; (6) law enforcement officials then

determined that in view of Appellant’s extensive knowledge of

computers, they needed “to get to his computer as soon as

possible”; (7) a law enforcement officer stationed at the Weston

residence met Appellant and his wife outside their home and they

accompanied the officer to the CID office; (8) at the CID

office, Mrs. Weston presented the officers with two items -- a

working electric razor and an adaptor used to download images

taken by the micro-camera -- in effort to show that Appellant

must have accidentally taken the micro-camera razor to work

instead of the operating razor.

     This evidence, which was presented to the military judge in

the course of the suppression motion, demonstrated that law

enforcement authorities had ample probable cause to search and

seize Appellant’s home computer -- particularly as it was more

likely that he would have viewed any images on his home computer

rather than on the routinely-monitored government computer he

used at work.   As we noted in United States v. Leedy, 65 M.J.

208, 213 (C.A.A.F. 2007), probable cause “requires more than

bare suspicion, but something less than a preponderance of the

evidence.”   The evidence available to the law enforcement

officials readily met that standard and provided probable cause

to believe that Appellant used an electric razor to hide a


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United States v. Weston, 08-0594/MC


micro-camera in the restroom that he shared with SSgt ME; that

the micro-camera was used to take pictures of SSgt ME during her

private use of the bathroom; that Appellant used an adaptor to

download images from the hidden micro-camera; that he brought

the adaptor to his home; and that he used the adaptor and his

home computer to view images of SSgt ME during her private use

of the bathroom.   Combined, these facts “lead one to believe

that it [was] more probable than not that contraband [would] be

present” in Appellant’s marital home.   Leedy, 65 M.J. at 213.

     In light of this information, the evidence presented by the

Government at trial established that the military police

possessed knowledge that would have led to a lawful search of

the Weston home in compliance with routine police practices.

See Owens, 51 M.J. at 210-11; Kozak, 12 M.J. at 394.

     Appellant suggests that discovery was not inevitable

because the evidence could have been intentionally or

inadvertently destroyed during the period in which the law

enforcement officials would have sought issuance of a search

authorization.   The speculative possibility that a suspect might

have destroyed evidence, however, does not preclude application

of the inevitable discovery doctrine in view of the fact that

law enforcement officials may institute a temporary, warrantless

seizure of the premises in such circumstances.   Illinois v.

McArthur, 531 U.S. 326, 331-34, 337 (2001) (finding permissible


                                 5
United States v. Weston, 08-0594/MC


temporary seizures of property supported by probable cause and

designed to prevent the loss of evidence while police obtain

search authorization).

     In view of these considerations, I would affirm on the

basis that the record establishes facts under which the evidence

at issue was admissible pursuant to the inevitable discovery

doctrine.




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United States v. Weston, No. 08-0594/MC


     ERDMANN, Judge (concurring in the result):

     Because I would find that the search in this case violated

Weston’s Fourth Amendment rights, I respectfully disagree with

the holding of the majority opinion.   However, I agree with that

portion of the Chief Judge’s opinion concurring in the result

pertaining to inevitable discovery because I agree that the

evidence would have been inevitably discovered and thus

admissible under Military Rule of Evidence 311(b)(2).   I

therefore concur in the result.

     The Fourth Amendment protects against unreasonable searches

and seizures, and “[a]t the very core stands the right of a man

to retreat into his own home and there be free from unreasonable

governmental intrusion.”   Silverman v. United States, 365 U.S.

505, 511 (1961).   “With few exceptions, the question whether a

warrantless search of a home is reasonable and hence

constitutional must be answered no.”   Kyllo v. United States,

533 U.S. 27, 31 (2001) (citations omitted).    A well recognized

exception to a warrantless search, however, is one in which an

individual whom the police reasonably believe possesses common

authority over the premises consents to the search.    Illinois v.

Rodriguez, 497 U.S. 177, 181 (1990); see also United States v.

Matlock, 415 U.S. 164, 170, 177 n.14 (1974).    The issue

presented in this case -- whether consent by one tenant is valid
United States v. Weston, No. 08-0594/MC


against another tenant who has already refused such consent --

is an area of law that is still in development.

     Staff Sergeant Weston came home to find a military

policeman stationed outside his family’s home.      The military

policeman told Weston that his presence was requested at the

military police station.   Weston and his wife then drove to the

station, followed by the military policeman.      Upon their

arrival, Weston and his wife were separated, and Agent Stevenson

took Weston to her office to question him.      Stevenson informed

Weston of the offenses he was suspected of committing and

advised him of his rights under Article 31, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 831 (2000).      Having

received this rights advisement, Weston invoked his right to

remain silent and to consult with an attorney.      Despite this

clear invocation, Stevenson then sought Weston’s consent to

search his marital home.   Weston unequivocally objected to any

search.

     Following Weston’s objection, Stevenson left him in her

office and went to speak with Mrs. Weston.      Stevenson obtained

Mrs. Weston’s consent to search the couple’s home without

informing her that her husband had refused to give his consent.

Mrs. Weston testified that she thought that her husband had

given his consent to the search.       After Stevenson had obtained

Mrs. Weston’s consent, she had Weston escorted from her office


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United States v. Weston, No. 08-0594/MC


to the holding area of the military police station.    There

Weston used his cell phone to call an attorney friend, but the

call was observed and Stevenson took his cell phone away.

Several agents then left with Mrs. Weston and went to the

couple’s marital home where they commenced the search.    Weston

was detained incommunicado in the holding area at the military

police station during this period of time.

     The majority opinion finds that Georgia v. Randolph, 547

U.S. 103 (2006), does not control the outcome in this case as

Weston was not physically present at his home when he objected

to the search.   United States v. Weston, __ M.J. __ (8-10)

(C.A.A.F. 2009).   In Randolph, both the husband and wife were

present at the threshold of the home and the husband objected to

the search while his wife consented.    Randolph, 547 U.S. at 107.

The Supreme Court held that a physically present cotenant’s

consent was invalid where another physically present cotenant

objected.    Id. at 120.   The decision did not address the

situation where two cotenants were asked for consent to search

while at a police station and one objected and the other

consented.   While Randolph is factually distinguishable from

this situation, it does provide some general Fourth Amendment

guidance in this area.

     In analyzing cotenant consent cases after Randolph, courts

have disagreed as to whether Randolph applies only to those


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United States v. Weston, No. 08-0594/MC


situations where the objecting cotenant is present at the

premises to be searched or whether it is equally applicable to a

cotenant who has objected but is not physically present at the

premises.1   Under the circumstances of this case, that

determination need not be made as Randolph contained the

following exception:

     So 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, there is practical value in the simple
     clarity of complementary rules, one recognizing the
     co-tenant’s permission when there is no fellow
     occupant on hand, the other according dispositive
     weight to the fellow occupant’s contrary indication
     when he expresses it.

Id. at 121-22.2

1
  Compare United States v. Henderson, 536 F.3d 776, 784 (7th Cir.
2008) (holding a refusal to consent by a physically present
tenant can be overcome by a cotenant’s consent obtained after
the objecting tenant is arrested and removed from the premises),
United States v. Groves, 530 F.3d 506, 511-12 (7th Cir. 2008)
(holding a refusal to consent by a physically present tenant can
be overcome by a cotenant’s consent obtained two weeks later
when the police returned at a time that they correctly believed
the objecting tenant would be absent), and United States v.
Hudspeth, 518 F.3d 954, 961 (8th Cir. 2008) (holding a
physically present tenant’s consent to search the home is valid
against a prior refusal to consent, given away from the home,
from a cotenant), with United States v. Murphy, 516 F.3d 1117,
1124 (9th Cir. 2008) (holding a cotenant’s arrest and removal
from the location does not “vitiate the objection he had already
registered to the search”), and Martin v. United States, 952
A.2d 181, 188 (D.C. 2008) (holding the police are bound by a
cotenant’s refusal even when faced with a subsequent consenting
cotenant, unless the objecting tenant makes a clear statement
changing his position) (citing Murphy, 516 F.3d at 1125)).
2
  While I do not reach the issue as to whether an objection
registered away from the home is vitiated by a subsequent
consent by a cotenant, a compelling argument can be made that

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United States v. Weston, No. 08-0594/MC


     After Weston objected to the search, officers obtained

consent from his wife without informing her that her husband had

just refused consent.   While the officers went to the marital

home and commenced the search, Weston was detained at the

military police station incommunicado.    During the search

Weston’s wife received a phone call from the lawyer whom her

husband had talked to on his phone before it was taken away.

She learned that her husband had not given his consent to the

search and was told she could revoke her consent to the search,

which she did.

     The question here is whether there is “evidence that the

police . . . removed the potentially objecting tenant from the

entrance for the sake of avoiding a possible objection . . . .”

Randolph, 547 U.S. 121.   There is no question as to whether

there was a “possible objection” since the police were fully



Randolph is based more on the stated positions of the cotenants
rather than their physical proximity to the premises to be
searched. The Randolph Court recognized two “complementary
rules, one recognizing the cotenant’s permission when there is
no fellow occupant on hand, the other according dispositive
weight to the fellow occupant’s contrary indication when he
expresses it.” Randolph, 547 U.S. at 121-22. Here consent was
sought from both cotenants at the police station at essentially
the same time. The fellow occupants were both on hand. The
police did not have to wonder whether Weston would consent
because they asked him first for permission to search his home
and he refused. Weston expressed his “contrary indication,” and
there is a compelling argument that his objection should be
accorded “dispositive weight.” See id.



                                 5
United States v. Weston, No. 08-0594/MC


aware that Weston had objected to the search and would not give

his consent.   While Weston was not under arrest, he was detained

at the military police building in the holding area and deprived

of his cell phone during the period of the search.

     If, as the majority holds, physical presence is required to

overcome a cotenant’s subsequent consent, then a situation where

law enforcement officers keep an objecting cotenant from

returning to his marital home where he could again voice his

objection and do not allow him to communicate that objection to

his spouse falls clearly within the Randolph exception.    Faced

with a similar situation, the United States Court of Appeals for

the Ninth Circuit held “[i]f the police cannot prevent a co-

tenant from objecting to a search through arrest, surely they

cannot arrest a co-tenant and then seek to ignore an objection

he has already made.”   Murphy, 516 F.3d at 1124-25.   In this

case, Weston was not even under arrest.

     While the majority opinion relies on an earlier Supreme

Court case involving the issue of a cotenant’s consent to search

a premises, Weston, __ M.J. at __ (9) (citing Matlock, 415 U.S.

164), I do not believe that case to be controlling.    Matlock was

arrested on the front lawn of the house, Matlock, 415 U.S. at

166, and placed in a nearby police car.   Id. at 179 (Douglas,

J., dissenting).   The arresting officers subsequently approached

the house, spoke with a resident who shared a bedroom with


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United States v. Weston, No. 08-0594/MC


Matlock, and received permission to search that bedroom.         Id. at

166.   The police did not ask Matlock for his consent to search

the bedroom, nor did he offer it.     Id.   The Supreme Court

recognized the consent of the cotenant may be valid against a

cotenant who has not objected.   Id. at 170; see also Rodriguez,

497 U.S. at 179-80, 186 (holding cotenant’s consent to search

valid where Rodriguez, who was asleep inside the house, was not

asked for his consent if police reasonably believed the

consenter possessed common authority over the premises).

       This case differs from Matlock and Rodriguez in at least

one critical aspect -- neither Matlock nor Rodriguez were asked

whether they would consent to a search.     Here Weston

unequivocally objected to a search of his premises.       This

distinction illustrates an important difference in this line of

cases between “nonconsenting” cotenants and “objecting”

cotenants.3


3
  In Matlock the Court referred to those cotenants who had not
been asked nor otherwise had informed law enforcement as to
whether they consented or objected to the proposed search as
“nonconsenting” cotenants. Matlock, 415 U.S. at 170. On the
other hand, “objecting” cotenants refers to those cotenants who
have voiced their objection to the search to law enforcement
officers. See Randolph, 547 U.S. at 121-22; Murphy, 516 F.3d at
1124. The majority categorizes these distinct factual
situations under the generic umbrella term “nonconsenting” and
does not include Weston’s refusal to consent in its
reasonableness analysis. Weston, __ M.J. at __ (11) (stating
“[a]s in Matlock, Appellant was a nonconsenting party”). While
the majority contends that reasonableness is a “binary
proposition” where “either there is consent or there is not,”

                                  7
United States v. Weston, No. 08-0594/MC


     The Supreme Court noted in Randolph that “‘it is beyond

dispute that the home is entitled to special protection as the

center of the private lives of our people.’”   Randolph, 547 U.S.

at 115 (citations omitted).   Given that special protection and

the fact that Weston was detained by the police while his house

was searched, I would find that the actions of law enforcement

violated Weston’s Fourth Amendment rights.   However, for the

reasons set out in the Chief Judge’s separate opinion, I believe

that the evidence would have been inevitably discovered and

therefore I concur in the result.




Id. at __ (9), Randolph illustrates that is not always the case.
The Supreme Court did not state that the factual situation in
Randolph was the only situation where the objection of the
defendant cotenant trumps another cotenant’s consent. In my
view, Weston’s unequivocal refusal is significantly distinct
from cases where the defendant was not a party to the consent
inquiry. Matlock and Weston are not similarly situated
defendants.


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