                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 13-10464
                Plaintiff-Appellee,
                                            D.C. No.
                v.                       2:12-cr-01335-
                                             DGC-1
MARLON MOORE,
           Defendant-Appellant.            OPINION


     Appeal from the United States District Court
              for the District of Arizona
     David G. Campbell, District Judge, Presiding

                Argued and Submitted
          October 8, 2014—Phoenix, Arizona

                Filed October 23, 2014

    Before: Dorothy W. Nelson, Barry G. Silverman,
        and Milan D. Smith, Jr., Circuit Judges.

             Opinion by Judge Silverman
2                  UNITED STATES V. MOORE

                           SUMMARY*


                          Criminal Law

    The panel affirmed the district court’s denial of a motion
to suppress evidence obtained through a search of the
defendant’s residence.

     The defendant argued that the search was unlawful under
Georgia v. Randolph, 547 U.S. 103 (2006), because, even
though his fiancée consented to the search of their joint
residence, the defendant was present and did not consent.
Noting that Randolph requires that the resident who is
refusing consent both be present at the house and expressly
refuse to allow the search, the panel held that the district
court correctly determined that the search of the defendant’s
residence did not violate the Fourth Amendment, where the
defendant refused to come to the door and acquiesced in
letting his fiancée deal with the police.


                            COUNSEL

Jon M. Sands, Federal Public Defender, and Daniel L. Kaplan
(argued), Assistant Federal Public Defender, Phoenix,
Arizona, for Defendant-Appellant.

John S. Leonardo, United States Attorney, Mark S.
Kokanovich, Deputy Appellate Chief, and Theresa Cole


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   UNITED STATES V. MOORE                          3

Rassas (argued), Assistant United States Attorney, Phoenix,
Arizona, for Plaintiff-Appellee.


                            OPINION

SILVERMAN, Circuit Judge:

    Defendant Marlon Moore appeals from his conviction and
sentence for possession of marijuana with intent to distribute
in violation of 21 U.S.C. § 841. Moore contends that the
district court erred in denying his motion to suppress
evidence that law enforcement officials obtained through a
search of his residence. Moore argues that the search of his
residence was unlawful under Georgia v. Randolph, 547 U.S.
103 (2006), because, even though his fiancée consented to the
search of their joint residence, he was present at the residence
and did not consent.

     We hold today that the district court correctly determined
that the search of Moore’s residence did not violate the
Fourth Amendment. Randolph requires that the resident who
is refusing consent both be present at the house and expressly
refuse to allow the search. See 547 U.S. at 122–23. Here,
Moore never expressly refused to consent. To the contrary,
he refused to come to the door and acquiesced in letting his
fiancée, who also lived there, deal with the police.
Accordingly, we affirm the conviction and sentence.1




  1
    In a separate memorandum contemporaneous with this opinion, we
addressed and rejected Moore’s remaining challenges to his conviction
and sentence.
4                UNITED STATES V. MOORE

                     BACKGROUND

    In January of 2012, Moore was living in a house in
Laveen, Arizona, with his fiancée Kristen Jones, their nine-
month old daughter, and three more of Jones’ children (ages
nine, four, and three). Moore worked in construction, ran a
taxi business, and was the primary caretaker of the children.

    The Department of Homeland Security had been tracking
Moore since the fall of 2011 as a suspect in a marijuana
distribution ring. On January 18, 2012, DHS started
conducting surveillance on Moore’s residence based on a tip
from a confidential informant that a large quantity of
marijuana had been delivered there. At 6:00 a.m. the next
day, DHS Special Agent Scott Wagoner continued the
surveillance. He was joined an hour later by nine other
federal law enforcement officials and two local law
enforcement officials. At approximately 8:04 a.m., the
officers watched as Jones left the house and drove off in a
Ford Crown Victoria. At approximately noon, Moore exited
the house, opened the garage door, pulled a Honda Accord
into the garage, and closed the garage door.

    A couple of hours later, around 2:00 p.m., some of the
officers knocked on the door of the house and rang the
doorbell. They heard people inside, children crying, and
“shuffling around,” but no one came to the door. After a few
minutes, the officers returned to their cars. At this point,
Wagoner decided to go back to his office to start working on
an affidavit in support of an application for a search warrant.
During that time, however, his supervisor suggested that
Wagoner try calling the phone number that was listed on a
taxi cab that had been parked in front of the home all day.
                 UNITED STATES V. MOORE                      5

    Wagoner dialed that number at 7:07 p.m., and Jones
answered. Agent Wagoner identified himself, explained that
the house was under surveillance for possible drug
trafficking, and that he was “in the middle of writing a search
warrant.” Jones said that her three children, her sister, and
possibly “her boyfriend Marlon [Moore]” were at the house.
Wagoner later testified that Jones “seemed deeply concerned
for her kids being in the house and the fact that the search
warrant was going to happen.” Jones told Wagoner that she
would leave work and asked him to meet her at the house.

    Soon thereafter, at 7:44 p.m., Jones called her sister, who
was in the house. One minute later, the officers watching the
house saw a person run through the backyard, from the house
to the edge of the yard, and heard a loud sound consistent
with something or someone coming over the fence and
landing on the ground in the adjacent backyard. The officers
were concerned that someone had fled the house and thus
increased the law enforcement presence, including bringing
in a helicopter. At the location where the officers heard the
sound, they found two large boxes, each of which contained
a 20-pound bundle of marijuana wrapped in green cellophane
and surrounded by pink foam.

    Wagoner returned to the scene and called Jones at 8:26
p.m. Jones told him she was on her way there. She arrived
around 8:40 p.m. After a short conversation regarding the
situation, Jones signed a Consent to Search form at 8:45 p.m.

    Jones and some officers then went to the front door of the
residence. When she arrived at the front door, Jones called
her sister and Moore, but neither answered their respective
phone. Jones then attempted to unlock the door with her
keys, but she could not do so because the door had been
6                        UNITED STATES V. MOORE

locked with a dead-bolt that could not be unlocked from the
outside. Jones continued to knock on the door and then called
out – in a voice that “was very, very loud” and “definitely
could be heard from inside” – “Marlon, Nikki, the police are
out here, open the door, open the door.”2 When still no one
answered the door, the officers requested permission from
Jones to break through the front door with a battering ram.
Jones consented to the use of the ram.

    The officers used the ram to open the door. Jones then
called out again, and Moore, Jones’ sister, the children, and
another man came out of the house. Once they were inside
the house, the officers found three boxes of marijuana that
were identical to the two that had been found in the backyard
of the neighboring house, along with digital scales, packing
material, and shrinkwrap. Following Miranda warnings,
Moore admitted that the marijuana was his and gave details
as to his sources and his shipping methods.

    The government indicted Moore, charging him with
possession of marijuana with intent to distribute in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(D). Moore pled not
guilty, and proceeded towards trial.

    Prior to trial, Moore moved to suppress the evidence
seized from the home on the grounds that the officers’ search
of his house violated the Fourth Amendment. After holding
an evidentiary hearing where Wagoner was the sole witness,
the district court denied the suppression motion.

   A jury found Moore guilty of count one of the indictment,
which charged him with possession of marijuana with intent

    2
        “Nikki” is Jones’ sister.
                 UNITED STATES V. MOORE                      7

to distribute. The district court subsequently sentenced
Moore to 46 months of incarceration, followed by three years
of supervised release.

                       DISCUSSION

I. Jurisdiction and Standard of Review

    On September 3, 2013, Moore timely appealed the district
court’s judgment filed that same day. See Fed. R. App. P.
4(b). We have jurisdiction pursuant to 28 U.S.C. § 1291.

   We review de novo the district court’s denial of a motion
to suppress evidence, but review the district court’s
underlying factual findings for clear error. United States v.
Brown, 563 F.3d 410, 414 (9th Cir. 2009).

II. Search of Moore’s Residence

    On appeal, Moore argues that the search of his residence
was unlawful under the Fourth Amendment and the Supreme
Court’s decision in Georgia v. Randolph because, although
his fiancée consented to the search, he was present at the
residence and did not consent.

    “The Fourth Amendment recognizes a valid warrantless
entry and search of premises when police obtain the voluntary
consent of an occupant who shares, or is reasonably believed
to share, authority over the area in common with a
co-occupant who later objects to the use of evidence so
obtained.” Randolph, 547 U.S. at 106. In Georgia v.
Randolph, the Supreme Court created a narrow exception to
this rule and held that “a physically present inhabitant’s
express refusal of consent to a police search is dispositive as
8                UNITED STATES V. MOORE

to him, regardless of the consent of a fellow occupant.” Id.
at 122–23; accord Fernandez v. California, __ U.S. __, 134
S. Ct. 1126, 1129 (2014) (“In Georgia v. Randolph, we
recognized a narrow exception to this rule, holding that the
consent of one occupant is insufficient when another
occupant is present and objects to the search.” (citation
omitted)).

    Like the district court, we conclude that the search of
Moore’s residence was lawful under the Fourth Amendment.
The search did not violate Randolph because Moore never
expressly refused consent to the search. Randolph requires
that the co-occupant both be physically present and expressly
refuse consent. See 547 U.S. at 120 (“We therefore hold that
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.” (emphasis
added)); id. at 122–23 (“This case invites a straightforward
application of the rule that a physically present inhabitant’s
express refusal of consent to a police search is dispositive as
to him, regardless of the consent of a fellow occupant.”
(emphasis added)). No such express refusal occurred here.
The relevant conduct by Moore on that day is as follows: he
did not respond to the police officers’ “knock and talk” at
2:00 p.m.; he did not answer Jones’ phone calls; and he did
not open the door for Jones when she, accompanied by police
officers, knocked on the door at approximately 8:45 p.m.
Moore never expressly refused to consent to the search and
simply acquiesced in letting his fiancée deal with the police.

    The facts at best show that Moore implicitly refused to
allow the police to search the residence. However, Randolph
requires an express, not implicit, refusal. See 547 U.S. at
                 UNITED STATES V. MOORE                     9

120, 122–23. Moreover, the Supreme Court has subsequently
emphasized that Randolph represents a “narrow exception”
to the rule that “police officers may search jointly occupied
premises if one of the occupants consents.” Fernandez,
134 S. Ct. at 1129 (footnote omitted); see also Randolph,
547 U.S. at 121 (“we are drawing a fine line”). Therefore, we
decline to extend the Supreme Court’s holding in Randolph
to include implicit refusals in addition to express refusals.

    Further, Moore’s reliance on United States v. Williams,
521 F.3d 902 (8th Cir. 2008), is unpersuasive. In Williams,
the defendant, after speaking to the police officers, slammed
the door shut on the officers and put the dead-bolt on. Id. at
905. The Eighth Circuit found that this action was sufficient
to invalidate a co-occupant’s consent to search the premises.
See id. at 907. Unlike in Williams, here, Moore never met the
police officers at the door, nor did he engage in any
affirmative conduct to physically prevent the police officers
from coming inside the house. Moore simply remained in the
house while Jones worked with the police officers to gain
entry to the house. Acquiescence in a co-occupant’s consent
and police officers’ subsequent actions is insufficient to
satisfy the narrow exception set forth in Randolph.

    Relying on Randolph, Moore also argues that commonly
held understandings regarding a fellow occupant’s right to
invite third parties to enter a shared residence do not extend
to the use of a battering ram. We disagree. There is nothing
in Randolph that prevents police officers from using a
battering ram to gain access to a residence when the co-
occupant is locked out and expressly consents to the use of
such methods.
10              UNITED STATES V. MOORE

    The search of Moore’s residence was lawful and did not
violate the Fourth Amendment. Therefore, the district court
correctly denied Moore’s motion to suppress.

     AFFIRMED.
