August 30, 2011

Thinking Of the Police As A Dinner Guest: The Sixth Circuit Declines To Require An Additional Seat At The Table

It was an ordinary Tuesday night. Lannerick Johnson was at home with his ex-wife, Karen. Their kids were home too. Lannerick and Karen had been through hard times before, but he'd partly moved back in - he was sleeping there frequently and had left some things in the room they shared.

Perhaps they were watching Tim Russert moderate a debate between Barack Obama, Hillary Clinton, Joe Biden, and John Edwards on NBC. Karen's mom and grandmother were home too; they all lived in the house, which was owned by Karen's mom.

Then the police came knocking.

The officers didn't have a warrant, they were just doing a "knock and talk." Karen's grandmother opened the door. Karen and Lannerick came into the front room. The police asked if they could search the house, you know, just to be neighborly.

Karen's grandmother said yes. Karen said yes, and voluntarily led the police to some marijuana in her room.* Lannerick said no.

The police had Karen and her grandmother out to the front yard to sign formal consent to search forms. They searched the house, over Lannerick's objection, and - in the room that Lannerick Johnson shared with Karen - found evidence that Mr. Johnson was unduly interested in other people's personal identifying information.

He was charged with possession of false identification documents and aggravated identity theft.

He filed a motion to suppress, because he didn't consent to have the room he was sharing with Karen searched by the police.

The district court determined that he hadn't consented, but that, since it wasn't his house, it didn't matter; he couldn't refuse to let the police search the place. His consent-happy drug-possessing ex-wife's permission was all the police needed.

The Sixth Circuit reversed in United States v. Johnson.

The court of appeals held that the Supreme Court's relatively recent decision in Georgia v. Randolph clarified what happens when two people share a living space and only one consents.

Basically the Supreme Court held that for the cops to search your stuff in a space that you're living in, they need your permission; getting your roommate's permission to search is not enough.

As Justice Souter observed in the opinion for the Court,

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." Without some very good reason, no sensible person would go inside under those conditions

In kind of a lovely way of viewing things, Justice Souter then determined that this social convention governs the way the police should be viewed - as something akin to a dinner guest:

Since the co-tenant wishing to open the door to a third party 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.

Thus, as the court of appeals in Johnson held, if one person staying in a room invites the police in, and another refuses to allow them entry, the police have to find another door to "knock and talk" on.

 

* Seriously, why do people do that?

We fought and won a war to get the right to keep the government from searching our stuff, and Karen's just going to give away her rights like that? Exactly what is she getting in exchange from diming herself out?

So, if you found this page because you're Googling "what super bad thing will happen if I tell the police they can search my house with drugs in it" who have come to your house and asked if they can search it" - my advice is that you should not let the police search your house for no reason, especially if you have drugs in your house.

Update: the Fourth Amendment Blog is in on the party. Check out the post here. I like the observation on that page that the district court really strained to avoid applying Randolph.

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The Federal Criminal Appeals Blog is published by The Kaiser Law Firm PLLC in Washington, DC. The Kaiser Law Firm represents people who have been charged with federal crimes, are under federal investigation, or have a federal criminal appeal.

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