SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

Entering with the victim of domestic
violence, at her request, for the purpose of
protecting her as she collects her belongings.
The consenting cotenant may retrieve
evidence and bring it out to the police.
With probable cause, a search warrant may
be obtained for the search of the residence.
The rule of Randolph does not govern when a minor
objects to the search of his room but is overruled by his
mother. Randolph applies only to disagreements between
joint adult occupants having apparently equal authority
over a residence. (In re D.C. (2010) 188 Cal.App.4 th 978,
988-989.)
The Ninth Circuit has ruled that when the objecting
cotenant is taken to jail before the consenting cotenant
shows up at the scene and gives his consent, the rule of
Randolph still applies. It is not necessary, despite the
specific language in Randolph, that the objecting party be
taken away “for the purpose of” avoiding the rule of
Randolph. (United States v. Murphy (9 th Cir. Feb. 20,
2008) 516 F.3 rd 1117, 1124-1125.)
Several other federal circuits disagree with the
Murphy on this issue. (See United States v.
Hudspeth (8 th Cir. 2008) 518 F.3 rd 954; United
States v. Henderson (7 th Cir. 2008) 536 F.3 rd 776.)
Subsequent to Murphy, the Ninth Circuit decided United
States v. Brown (9 th Cir. 2009) 563 F.3 rd 410, which
reemphasized the rule that a cotenant must have been
removed “for the purpose of” avoiding a possible objection,
ruling that there must be some evidence that that was the
purpose of the police in taking the defendant from the
scene. It was also noted that there is no duty to ask the
absent cotenant for consent.
When a cotenant, who is absent from the scene, consents to
a law enforcement entry into a residence, but another
cotenant who is present at the scene objects, an entry is
unlawful. (Tompkins v. Superior Court (1959) 59 Cal.2 nd
65.)
© 2011 Robert C. Phillips. All rights reserved
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