                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-3316
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
    v.                                 * District Court for the
                                       * Western District of Missouri.
Roy J. Hudspeth,                       *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: April 11, 2007
                                Filed: March 11, 2008
                                 ___________

Before LOKEN, Chief Judge, WOLLMAN, MURPHY, BYE, RILEY, MELLOY,
SMITH, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit Judges,
en banc.
                             ___________

RILEY, Circuit Judge.

       Roy Hudspeth (Hudspeth) entered a conditional guilty plea to possession of
child pornography, in violation of 18 U.S.C. § 2252A(a)(5) and (b)(2). The district
court1 sentenced Hudspeth to 60 months’ imprisonment. On appeal, Hudspeth
challenged the denial of his motion to suppress evidence seized during the warrant
search of his business and the warrantless search of his home computer. Hudspeth


      1
        The Honorable Dean Whipple, then Chief Judge, United States District Court
for the Western District of Missouri.
also challenged the district court’s application of the United States Sentencing
Guidelines. A panel of our court unanimously affirmed the denial of Hudspeth’s
motion to suppress the evidence seized during the warrant search of Hudspeth’s
business computer, and also affirmed Hudspeth’s sentence. United States v.
Hudspeth, 459 F.3d 922 (8th Cir. 2006). A majority of the panel, however, reversed
the district court’s denial of Hudspeth’s motion to suppress the evidence seized during
the warrantless search of Hudspeth’s home computer by applying Georgia v.
Randolph, 547 U.S. 103 (2006), and concluding Hudspeth’s objection to the search
overruled his wife’s later consent. We granted the government’s petition for rehearing
en banc, vacated the panel opinion, and heard additional argument. We now reinstate
the panel opinion, except the portion regarding the warrantless search of Hudspeth’s
home computer, and affirm the district court in all respects.

I.     BACKGROUND
       The factual background of this case is set forth in detail in the panel opinion,
Hudspeth, 459 F.3d at 924-26, thus we repeat only those facts necessary for discussion
of the issue before our en banc court. On July 25, 2002, drug enforcement officers
executed a search warrant at Handi-Rak Services, Inc. (Handi-Rak) seeking evidence
relating to large quantity sales of pseudoephedrine tablets. Hudspeth, Handi-Rak’s
CEO, arrived at the business while the search was underway. Hudspeth received his
Miranda2 warnings and agreed to talk with Missouri State Trooper Corporal Daniel
Nash (Cpl. Nash). During the course of the search, officers discovered child
pornography on Hudspeth’s business computer and homemade compact discs (CDs).
Hudspeth told Cpl. Nash he downloaded the images from the internet and burned the
images onto CDs. Hudspeth was arrested for possession of child pornography. The
child pornography discovered on Hudspeth’s business computer and the CDs, along
with information volunteered by Hudspeth, led Cpl. Nash to believe Hudspeth’s home



      2
       Miranda v. Arizona, 384 U.S. 436 (1966).

                                         -2-
computer also probably contained child pornography. Cpl. Nash asked Hudspeth for
permission to search his home computer. Hudspeth refused.

       After officers arrested Hudspeth and transported him to jail, Cpl. Nash and three
other law enforcement officers went to Hudspeth’s home. Hudspeth’s wife, Georgia
Hudspeth (Mrs. Hudspeth), and the couple’s two children were at the residence. Mrs.
Hudspeth sent the children to a back bedroom and permitted the officers to enter the
living room. The officers were not in uniform and were not carrying their service
revolvers. Cpl. Nash identified himself and informed Mrs. Hudspeth her husband had
been arrested for possession of contraband found on his business computer. Cpl. Nash
told Mrs. Hudspeth he was concerned the home computer contained similar
contraband.

       Cpl. Nash and Mrs. Hudspeth discussed the family’s two computers: one in the
children’s room, which only the children used, and one in the garage (home
computer). Cpl. Nash asked Mrs. Hudspeth for permission to search the home. Mrs.
Hudspeth refused. Cpl. Nash then asked Mrs. Hudspeth if he could take the home
computer. Mrs. Hudspeth said she did not know what to do and asked Cpl. Nash what
would happen if she refused to let him take the home computer. Cpl. Nash explained
he would apply for a search warrant and, in the meantime, he would leave an armed,
uniformed officer in the home to prevent the destruction of the home computer and
other evidence. Cpl. Nash did not tell Mrs. Hudspeth her husband previously denied
consent to search the home computer.

       Mrs. Hudspeth told Cpl. Nash she wanted to make a phone call and went into
the kitchen where she tried unsuccessfully to contact her attorney. A few minutes
later, Mrs. Hudspeth returned to the living room and gave the officers permission to
take the home computer. Cpl. Nash also seized homemade CDs found next to the
home computer, which bore the same markings as CDs seized at Handi-Rak.



                                          -3-
       Cpl. Nash obtained a second search warrant to search the contents of the
computers and CDs taken from Handi-Rak and the Hudspeth residence. On the CDs
and the computer hard drives, investigators found child pornography, which Hudspeth
had downloaded from the internet and on-line newsgroups. Investigators also
discovered movie files of Hudspeth’s stepdaughter appearing nude and in various
stages of undress, which Hudspeth had surreptitiously recorded using a web camera.

       Hudspeth was indicted for possession of child pornography and unsuccessfully
moved to suppress the evidence seized during the searches of Handi-Rak and the
home computer. Hudspeth entered a conditional guilty plea to possession of child
pornography, reserving the right to appeal the denial of his motion to suppress. At
sentencing, the district court sentenced Hudspeth to 60 months’ imprisonment, the
statutory maximum under 18 U.S.C. § 2252A.3 Hudspeth appealed the district court’s
denial of the suppression motion and the application of sentencing enhancements.

       After the appellate panel heard oral argument but before the panel filed its
opinion, the Supreme Court decided Randolph. The panel requested additional
briefing on the application, if any, of Randolph to the warrantless search of
Hudspeth’s home computer. Thereafter, the panel unanimously affirmed the district
court’s denial of Hudspeth’s motion to suppress the warrant search of Hudspeth’s
business computer concluding the warrant, as well as Hudspeth’s express consent,
authorized the search of Hudspeth’s business computer. The panel also unanimously
affirmed Hudspeth’s sentence, concluding under the terms of Hudspeth’s plea
agreement, Hudspeth waived the right to appeal any sentence not exceeding the
statutory maximum. Regarding the warrantless search of Hudspeth’s home computer,
the panel unanimously agreed Mrs. Hudspeth’s consent was voluntary and not
coerced, but the panel divided over the application of Randolph. The majority held


      3
      The 2003 amendments to 18 U.S.C. § 2252A(b), increased the maximum and
minimum sentences for offenses under § 2252A(a).

                                        -4-
Mrs. Hudspeth’s consent did not overrule Hudspeth’s non-contemporaneous objection
to the search. We granted the government’s petition for rehearing en banc on the issue
of the applicability of Randolph to the warrantless seizure of Hudspeth’s home
computer.

II.    DISCUSSION
       When considering a district court’s denial of a suppression motion, we review
for clear error the district court’s factual findings and de novo its legal conclusions
based on those facts. United States v. Salazar, 454 F.3d 843, 846 (8th Cir. 2006). Our
en banc court now addresses only whether Hudspeth’s objection to the warrantless
search of the home computer overruled Mrs. Hudspeth’s later consent. We must view
this question not only in light of Randolph, but also in light of two earlier Supreme
Court decisions: United States v. Matlock, 415 U.S. 164 (1974); and Illinois v.
Rodriguez, 497 U.S. 177 (1990).

       In Matlock, defendant William Matlock (Matlock) had been arrested in the front
yard of his residence on suspicion of bank robbery. See United States v. Matlock, 476
F.2d 1083, 1085 (7th Cir. 1973), rev’d, 415 U.S. 164 (1974). Looking for money and
a gun used in connection with the robbery, the arresting officers immediately went to
the door of the residence and secured consent to search the home from Gayle Graff
(Graff). The officers did not ask Matlock for consent even though he sat in a squad
car a short distance away. Matlock, 415 U.S. at 166. The officers seized cash and a
gun from the east bedroom of the home, which Matlock shared with Graff. The trial
court suppressed the evidence recovered from the bedroom, concluding Graff’s
consent to search the bedroom was not binding on Matlock. Matlock, 476 F.2d at
1086. The suppression was affirmed on appeal. Id. at 1088.

      The Supreme Court reversed, holding the government could satisfy its burden
of proving consent to a warrantless search by showing “permission to search was
obtained from a third party [Graff] who possessed common authority over . . . the

                                         -5-
premises” to be searched. Matlock, 415 U.S. at 171. Citing earlier Fourth Amendment
law, the Court clarified that proof of voluntary consent to justify a warrantless search
“is not limited to proof that consent was given by the defendant, but may show that
permission to search was obtained from a third party who possessed common
authority over or other sufficient relationship to the premises or effects sought to be
inspected.” Id. (footnote omitted) (citing Schneckloth v. Bustamonte, 412 U.S. 218,
245-46 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 487-90 (1971); and
Frazier v. Cupp, 394 U.S. 731, 740 (1969)). The Court stated “the consent of one who
possesses common authority over premises or effects is valid as against the absent,
nonconsenting person with whom that authority is shared.” Id. at 170 (emphasis
added). Graff’s consent was valid despite the fact the arresting officers knew Matlock
was sitting in the squad car a short distance away and the officers did not ask Matlock
for his consent. Id. at 166, 171, 178.

       In Rodriguez, the issue of co-tenant consent arose out of a domestic dispute.
Rodriguez, 497 U.S. at 179-80. Police were summoned on behalf of assault victim
Gail Fischer (Fischer). When police arrived, Fischer told the officers her assailant was
asleep in “our” apartment. Fischer then led the officers to the apartment, unlocked the
door with her key, and gave the officers permission to enter. Once inside the
apartment, the officers observed drugs and drug paraphernalia in plain view and found
Rodriguez asleep in the bedroom. Rodriguez was arrested and charged with
possession of illegal drugs. He moved to suppress the evidence claiming Fischer had
moved out of the apartment several weeks earlier and did not have authority to
consent to the search. The Illinois state court suppressed the evidence, holding
Fischer’s consent was invalid because Fischer “was not a ‘usual resident’ but rather
an ‘infrequent visitor’ at the apartment,” who “did not possess common authority over
the premises.” Id. at 180. The decision was affirmed on appeal. Id.

       The Supreme Court reversed, concluding a police officer’s reasonable belief
that a person with common authority over the premises consented to the search is

                                          -6-
enough to satisfy the reasonableness requirement under the Fourth Amendment. Id.
at 186. In arriving at this decision, the Court distinguished between “those rights that
protect a fair criminal trial and the rights guaranteed under the Fourth Amendment,”
and noted that nothing “in the purposes behind requiring a ‘knowing’ and ‘intelligent’
waiver of trial rights, or in the practical application of such a requirement suggests that
it ought to be extended to the constitutional guarantee against unreasonable searches
and seizures.” Id. at 183 (quoting Schneckloth, 412 U.S. at 241).

       The Court further noted the Fourth Amendment does not assure a defendant “no
government search of his house will occur unless he consents,” id., rather the Fourth
Amendment guarantees only “no such search will occur that is ‘unreasonable,’” id.
(citing U.S. Const. amend. IV). The Court emphasized “[t]he fundamental objective
that alone validates all unconsented government searches is, of course, the seizure of
persons who have committed or are about to commit crimes, or of evidence related to
crimes,” id. at 184, and reiterated that “of the many factual determinations that must
regularly be made by agents of the government,” the Fourth Amendment does not
require the agents “always be correct, but that they always be reasonable,” id. at 185-
86 (citing Brinegar v. United States, 338 U.S. 160, 173 (1949) (distinguishing the
“large difference” between what “is required to prove guilt in a criminal case and what
is required to show probable cause for arrest or search”)). The Court found “no reason
to depart from this general rule with respect to facts bearing upon the authority to
consent to a search.” Id. at 186.

       Most recently, in Randolph, the Court considered “whether one occupant may
give law enforcement effective consent to search shared premises, as against a co-
tenant who is present and states a refusal to permit the search.” Randolph, 547 U.S.
at 108. In Randolph, the defendant’s wife, Janet Randolph (Mrs. Randolph), informed
the police her husband, Scott Randolph (Randolph), took their young son away and
was a drug user with drugs in the home. Id. at 106-07. After Randolph returned to
the home and explained the child was with a neighbor, the officers asked Randolph

                                           -7-
for permission to search the home. Randolph refused. The officers immediately
turned to Mrs. Randolph and asked for her consent. Mrs. Randolph readily consented
and led one officer to a bedroom where the officer observed drugs and drug
paraphernalia. Id. at 107.

      After being charged with cocaine possession, Randolph moved to suppress the
evidence seized during the search. The state trial court denied the motion to suppress;
however, that ruling was reversed on appeal. Id. at 108 (citing Randolph v. State, 590
S.E.2d 834, 836-37 (Ga. Ct. App. 2003), aff’d, Randolph v. State, 604 S.E.2d 835,
836 (Ga. 2004)).

      The Supreme Court granted certiorari and affirmed the appellate decision,
which distinguished Matlock, observing “Randolph was not ‘absent’ from the
colloquy on which the police relied for consent to make the search.” Randolph, 547
U.S. at 108 (citing Randolph, 604 S.E.2d at 837). The Court, quoting the Georgia
Supreme Court, stated “the consent to conduct a warrantless search of a residence
given by one occupant is not valid in the face of the refusal of another occupant who
is physically present at the scene to permit a warrantless search.” Id. (quoting State
v. Randolph, 604 S.E.2d at 836).

       The Supreme Court further noted that no prior co-tenant consent-to-search cases
“presented the further fact of a second occupant physically present and refusing
permission to search, and later moving to suppress evidence so obtained.” Id. at 109.
Throughout the Randolph opinion, the majority consistently repeated it was
Randolph’s physical presence and immediate objection to Mrs. Randolph’s consent
that distinguished Randolph from prior case law.4 The Court reinforced this point in

      4
        For example, in discussing customary expectations of courtesy, the Court
stated “it is fair to say that a caller standing at the door of shared premises would have
no confidence that one occupant’s invitation was a sufficiently good reason to enter
when a fellow tenant stood there saying, ‘stay out.’” Randolph, 547 U.S. at 113

                                           -8-
its conclusion, holding “ a warrantless search of a shared dwelling for evidence over
the express refusal of consent by a physically present resident cannot be justified as
reasonable as to him on the basis of consent given to the police by another resident.”
Id. at 120 (emphasis added).

     The Court went on to emphasize the significance and preservation of both
Matlock and Rodriguez, and thus the consequentially narrow holding of Randolph:

      Although the Matlock defendant was not present with the opportunity to
      object, he was in a squad car not far away; the Rodriguez defendant was
      actually asleep in the apartment, and the police might have roused him
      with a knock on the door before they entered with only the consent of an
      apparent co-tenant. If those cases 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.

Id. at 121.

       Thus, as we turn to the question of whether Hudspeth’s Fourth Amendment
rights were violated, we must consider not only Randolph, but Matlock and Rodriguez
as well. Several factors demonstrate Hudspeth’s Fourth Amendment rights were not
violated.




(emphasis added). The Court added that a co-tenant inviting a third party into the
shared dwelling “has no recognized authority in law or social practice to prevail over
a present and objecting co-tenant, his disputed invitation, without more, gives a police
officer no better claim to reasonableness in entering than the officer would have in the
absence of any consent at all.” Id. at 114 (emphasis added).

                                          -9-
       As an initial matter, we note that when Mrs. Hudspeth consented to the seizure
of the home computer, Hudspeth already had been arrested and jailed for possession
of child pornography. His arrest was based on child pornography previously seized
during the warrant search of Handi-Rak. Indeed, this independently discovered
evidence, combined with information volunteered by Hudspeth, provided probable
cause for Cpl. Nash to believe the home computer contained additional contraband.
Furthermore, during the search at Handi-Rak, Cpl. Nash observed Hudspeth making
several phone calls. This observation provided Cpl. Nash with a reasonable concern
that any evidence on the home computer was at risk because it was possible Hudspeth
made phone calls to arrange for the removal or destruction of the home computer.
Such exigent circumstances support the reasonableness of the officer’s conduct.
United States v. Amburn, 412 F.3d 909, 915 (8th Cir. 2005).

      The legal issue of whether an officer’s knowledge of the prior express refusal
by one co-tenant negates the later obtained consent of another authorized co-tenant is
a matter of first impression in this court. We will answer this compound legal
question by answering the separate legal questions involved.

       First, we know Mrs. Hudspeth was a co-tenant authorized to give the officers
consent to search. See Matlock, 415 U.S. at 171. We also know that although not
obligated to do so, Cpl. Nash advised Mrs. Hudspeth of her right to refuse consent.
See Schneckloth, 412 U.S. at 248-49. In fact, Mrs. Hudspeth did refuse Cpl. Nash’s
request to search the home. Cpl. Nash correctly informed Mrs. Hudspeth of his lawful
authority and his alternative intent to leave an armed, uniformed officer at the
residence to secure the evidence if Mrs. Hudspeth refused to consent to Cpl. Nash
seizing the home computer. See Segura v. United States, 468 U.S. 796, 810 (1984)
(“We hold, therefore, that securing a dwelling, on the basis of probable cause, to
prevent the destruction or removal of evidence while a search warrant is being sought
is not itself an unreasonable seizure of either the dwelling or its contents.”); United
States v. Ruiz-Estrada, 312 F.3d 398, 404 (8th Cir. 2002).

                                         -10-
       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. Thus, this
rationale for the narrow holding of Randolph, which repeatedly referenced the
defendant’s physical presence and immediate objection, is inapplicable here.

       Third, the Fourth Amendment’s reasonableness requirement did not demand
that the officers inform Mrs. Hudspeth of her husband’s refusal. This conclusion is
supported by Matlock and Rodriguez, where law enforcement officers bypassed the
defendants against whom the evidence was sought, although the defendants were
present and available to participate in the consent colloquy. The officers instead
sought the consent of an authorized co-tenant. See Rodriguez, 497 U.S. at 180;
Matlock, 415 U.S. at 166.

        The Randolph opinion repeatedly referred to an “express refusal of consent by
a physically present resident.” Randolph, 547 U.S. at 120 (emphasis added); e.g., id.
at 108, 109, 114, 121-23. The Randolph majority candidly admitted “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.” Id.
at 121 (emphasis added). Hudspeth was not at the door and objecting and does not fall
within Randolph’s “fine line.” Thus, we must conclude Cpl. Nash’s failure to advise
Mrs. Hudspeth of her husband’s earlier objection to a search of the home computer
did not convert an otherwise reasonable search into an unreasonable one.

       The Fourth Amendment does not prohibit warrantless searches and seizures, nor
does the Fourth Amendment always prohibit warrantless searches and seizures when
the defendant previously objected to the search and seizure. “What [Hudspeth] is

                                           -11-
assured by the Fourth Amendment itself, however, is . . . no such search will occur
that is ‘unreasonable.’” Rodriguez, 497 U.S. at 183. As the Supreme Court explains,
“it is reasonable to recognize that any of the co-inhabitants has the right to permit the
inspection in his [or her] own right.” Matlock, 415 U.S. at 171 n.7. And the absent,
expressly objecting co-inhabitant has “assumed the risk” that another co-inhabitant
“might permit the common area to be searched.” Id. The authorized co-tenant may
give consent for several reasons including an unawareness of contraband on the
premises, or a desire to protect oneself or others (as here, Mrs. Hudspeth, in the self-
interest of herself and her children, consented to the seizure of the home computer to
prevent the placement of an armed, uniformed law enforcement officer in her home
to guard the evidence while a search warrant was obtained).

       Under the totality of circumstances of the present case, maintaining the Fourth
Amendment’s touchstone requirement against unreasonable searches and seizures,
we conclude the seizure of Hudspeth’s home computer was reasonable and the Fourth
Amendment was not violated when the officers sought Mrs. Hudspeth’s consent
despite having received Hudspeth’s previous refusal. We affirm the district court’s
denial of Hudspeth’s motion to suppress the evidence obtained from the warrantless
seizure of Hudspeth’s home computer.

III.  CONCLUSION
      For the reasons stated, we reinstate Parts I, II(A)(1), and II(B) of the panel
opinion in full, and that portion of Part II(A)(2) regarding the voluntariness of Mrs.
Hudspeth’s consent. The judgment of the district court is affirmed in all respects.

MELLOY, Circuit Judge, with whom WOLLMAN and BYE, Circuit Judges, join,
dissenting.

      I believe Mrs. Hudspeth’s consent cannot overrule Hudspeth’s denial of
consent. Therefore, I respectfully dissent.

                                          -12-
        The question presented to the en banc court is whether an officer who was
denied consent to search a shared residence by one co-tenant may rely upon consent
given by a different co-tenant as grounds for a warrantless search of the shared
residence. Although the majority notes that “exigent circumstances support the
reasonableness of the officer’s conduct,” ante at 10, whether exigent circumstances
justified entry into the Hudspeth home without a warrant is not a question before the
court. Nor do we have before us other alternative theories, such as inevitable
discovery, that may provide a basis for the admission of evidence discovered on the
home computer.5 We are faced with a single issue: the ability of a co-tenant to
consent to a search of shared premises when a co-tenant of equal status objects to the
search. My conclusion that such a search is unreasonable, and therefore is a violation
of the Fourth Amendment, stems from the same Supreme Court jurisprudence
discussed at length by the majority.

       Notably, none of Supreme Court’s relevant co-tenant consent jurisprudence
presented a factual scenario identical to that presented in the instant case. The
differences between the cases are plain. I believe these differences to be very
significant. In Matlock and Rodriguez, the co-tenant challenging the admission of the
evidence against him never voiced an objection to the warrantless search. Matlock,
415 U.S. at 166; Rodriguez, 497 U.S. at 180. Randolph, of course, objected to the
warrantless search of his home, Randolph, 547 U.S. at 107, as did Hudspeth.
Randolph objected while standing at the threshold of the shared residence, id.,
whereas Hudspeth’s objection occurred off-site. The question is whether these
differences are of constitutional import. The majority glosses over the difference


      5
       The panel opinion remanded the case to allow the government to attempt to
show alternate grounds, other than consent, would support admission of the evidence.
As the majority notes, Randolph was decided after initial briefing in this case. The
panel majority indicated that because the factual predicate for any alternative theory
of admissibility had not been developed in the district court, the government and
defense should have the opportunity to present evidence related to any such theory.

                                        -13-
between lack of consent and express objection, and instead focuses on geography,
concluding that the location of a defendant, not whether he expressly objects, is
determinative. Mindful that the Supreme Court “decide[s] the case before [it], not a
different one,” id. at 120 n.8, I reach a contrary conclusion. Based on the principles
discussed in these cases, I conclude a warrantless search conducted despite the timely
express objection of a co-tenant of equal status cannot be considered reasonable,
regardless of where the objection occurs.

        Turning first to Matlock, the Court there held: “‘the consent of one who
possesses common authority over premises or effects is valid against the absent,
nonconsenting person with whom that authority is shared.’” Ante at 6 (quoting
Matlock, 415 U.S. at 170). The majority relies upon this statement in concluding that
a co-tenant who expressly objects but is absent may nonetheless be subject to a
warrantless search based upon the consent of another co-tenant. This analysis is
flawed because “nonconsenting” cannot be read as synonymous with “objecting.”
First, the definition of the word “nonconsenting” belies that interpretation. The use
of the prefix “non” usually “impl[ies] mere negation or absence of something (rather
than the opposite or reverse of it . . .).” Webster’s Unabridged Dictionary 1306 (2d
ed. 2001). Further, the term “nonconsent” is defined as “[l]ack of voluntary
agreement.” Black’s Law Dictionary 1078 (8th ed. 2004). Thus, “nonconsenting”
would imply absence of consent, not objection. Second, none of the cases cited as
consistent with the Matlock Court’s holding involved co-tenants who expressly
objected to a search; all of the individuals seeking to suppress the evidence simply
were silent or did not have the opportunity to consent or object to the search. See
Matlock, 415 U.S. at 169–70 nn.4–6 (collecting cases). Third, in differentiating
between Matlock and Randolph, the Supreme Court highlighted the lack of objection,
not the lack of consent by the defendant. See Randolph, 547 U.S. at 120–21. Neither
Matlock nor Randolph consented to the search of his shared residence, but Randolph
explicitly objected—a outcome-determinative fact. The majority asks more of
Matlock’s holding than it can give; Matlock provides no guidance as to the

                                        -14-
reasonableness of a search conducted despite explicit objection by a co-tenant of equal
status.

       The majority also looks to language in Rodriguez dealing with lack of consent
in support of its conclusion that explicit objection by a co-tenant may be overcome.
The majority highlights the Rodriguez Court’s statement that the Constitution does not
guarantee that “‘no government search of [a person’s] house will occur unless he
consents’” only that “‘no such search will occur that is unreasonable.’” Ante at 7
(quoting Rodriguez, 497 U.S. at 183) (internal quotation omitted). This proposition
is unremarkable and adds little, if any, support to the majority’s conclusion. The
Fourth Amendment guarantees “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const.
amend. IV. “The touchstone of the Fourth Amendment is reasonableness,” Samson
v. California, 547 U.S. 843, 855 n.4 (2006), and “[t]here are various elements, of
course, that can make a search of a person’s house ‘reasonable,’” Rodriguez, 497 U.S.
at 183–84. For example, a search conducted without a person’s consent, but pursuant
to a warrant issued by a neutral and detached magistrate upon a finding of probable
cause, is reasonable. The question presented in this case is not whether a search can
ever be conducted without the consent of the defendant, but whether a warrantless
search of shared premises can be reasonable when based upon contested consent.

       In contrast to the passages from Matlock and Rodriguez emphasized by the
majority, the language of the Randolph Court demonstrates the significance of express
objection by a co-tenant, as opposed to mere lack of consent. Throughout the opinion,
the Court repeatedly refers to “objecting” co-tenants, not “nonconsenting” co-tenants.
See, e.g., Randolph, 547 U.S. at 114, 115, 117 n.6, 121, & 122. In fact, the holding
assumes there will be nonconsenting co-tenants—co-tenants who do not affirmatively
assent to the search—and that those co-tenants will “lose[] out.” Id. at 121. By
carefully “drawing a fine line,” between the defendants in Rodriguez, Matlock, and
Randolph, the Randolph Court highlighted the importance of express objection by a

                                         -15-
co-tenant. Id. This is evident in the Court’s conclusion that “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 (emphasis added). The Ninth Circuit recently emphasized the importance of
express objection by a co-tenant, relying upon Randolph and holding “that when a co-
tenant objects to a search and another party with common authority subsequently
gives consent to that search in the absence of the first co-tenant the search is invalid
as to the objecting co-tenant.” United States v. Murphy, No. 06-30582, 2008 WL
441837, at *5 (9th Cir. Feb. 20, 2008).

       The majority treats the Court’s repeated reference to physical presence as
creating a necessary prerequisite for a finding that a search based upon contested
consent is unreasonable. I do not believe the Supreme Court’s language reflects a
geographic mandate, but rather a conscious effort to “decide the case before [it], not
a different one.” Id. at 120 n.8. In this case, we are required to decide the issue the
Supreme Court left unanswered: Is the express denial of consent by a co-tenant
dispositive or is the physical location, i.e., at the front door, controlling? In my view,
the Randolph Court’s primary focus was on legitimate expectations of privacy. See
United States v. Cos, 498 F.3d 1115, 1126 (10th Cir. 2007) (discussing Randolph and
concluding that “whether the defendant’s reasonable expectation of privacy was
infringed by the third party’s consent to the search is a paramount concern”). Relying
upon Minnesota v. Olson, 495 U.S. 91 (1990), the Court found the legitimate
expectation of privacy of the objecting co-tenant is at least as strong, or stronger, than
an objecting overnight houseguest. Randolph, 547 U.S. at 113.

      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

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yard? At the curb? I cannot believe the Supreme Court intended to make one’s
expectation of privacy dependent upon the happenstance of location.

      The Supreme Court’s discussion of the implications of a ruling contrary to the
holding in Randolph also demonstrates the search in the instant case was
unreasonable. In explaining its holding, the Court stated:

      For the very reason that Rodriguez held it would be unjustifiably
      impractical to require the police to take affirmative steps to confirm the
      actual authority of a consenting individual whose authority was apparent,
      we think it would needlessly limit the capacity of the police to respond
      to ostensibly legitimate opportunities in the field if we were to hold that
      reasonableness required the police to take affirmative steps to find a
      potentially objecting co-tenant before acting on the permission they had
      already received. . . . The pragmatic decision to accept the simplicity of
      this line is, moreover, supported by the substantial number of instances
      in which suspects who are asked for permission to search actually
      consent, albeit imprudently, a fact that undercuts any argument that the
      police should try to locate a suspected inhabitant because his denial of
      consent would be a foregone conclusion.

Randolph, 547 U.S. at 122. Here, officers were not responding to an “ostensibly
legitimate opportunit[y] in the field.” Id. They were attempting to create an
opportunity despite actual knowledge that the target of their investigation had already
foreclosed the option of a consent search. The Court’s concern about the need for a
dragnet to find “potential objectors” is non-existent because Hudspeth had already
expressed his objection; his “denial of consent” was “a foregone conclusion.” Id.

       “[N]othing in social custom or its reflection in private law argues for placing
a higher value on delving into private premises to search for evidence in the face of
disputed consent, than on requiring clear justification before the government searches
private living quarters over a resident’s objection.” Randolph, 547 U.S. at 120. I


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believe that the Supreme Court has made it clear that the government must get a
warrant when one co-tenant expressly denies consent to search a shared residence. In
this case, that would not have been a significant burden. As the majority explained,
the information gathered at the Handi-Rak “provided probable cause for Cpl. Nash to
believe the home computer contained additional contraband.” Ante at 10.

      Thus, I conclude the warrantless search conducted based upon Mrs. Hudspeth’s
consent was unreasonable as to Hudspeth. At the time Cpl. Nash sought Mrs.
Hudspeth’s consent, Hudspeth had already explicitly denied consent to search his
home. His opposition to a warrantless search of his home was unequivocal. The
subsequent consent of Mrs. Hudspeth could not overcome that express denial of
consent. I respectfully dissent.
                        _____________________________




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