United States v. Weston, __ M.J. ___, No. 08-0594/MC (C.A.A.F. June 11, 2009).
Have I mentioned lately that I love reading Judge Stucky’s opinions? Here’s how Weston starts:
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.
Judge Stucky wrote the majority opinion, which was joined by Judges Baker and Ryan. Chief Judge Effron and Judge Erdmann each filed separate opinions concurring in the result.
Judge Stucky’s opinion for the court explains that “CID obtained consent from Appellant’s wife who possessed common authority over the premises.” Id., slip op. at 1-11. “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.” Id., slip op. at 11. The majority also rejects the notion that CID intentionally removed SSG Weston from his house to prevent him from objecting to the search. Id., slip op. at 10.
The majority considers and rejects the Ninth Circuit’s approach, which might lead to a different result. See United States v. Murphy, 516 F.3d 1117, 1123-24 (9th Cir. 2008). The majority instead follows the Seventh and Eighth Circuits’ approach. So it looks like SSgt Weston will have a pretty strong cert petition asking the Supremes to resolve a split among the circuits. See Weston, slip op. at 10. Surprisingly, it doesn’t appear that the Solicitor General sought cert in Murphy. So SCOTUS could use Weston as a proxy to engage in one of the Court’s favorite indoor activities — reversing the Ninth Circuit.
Chief Judge Effron writes that he would resolve the case on inevitable discovery grounds. He catalogs the evidence that law enforcement agents already had when they conducted the consent search and concludes that it would have resulted in a probable cause search authorization had the agents not acted on the basis of SSgt Weston’s wife’s consent.
Judge Erdmann concludes that SSgt Weston’s Fourth Amendment rights were violated when the search of his house was conducted over his objection. But he agrees with Chief Judge Effron that the evidence obtained by the search is nevertheless admissible under the inevitable discovery doctrine. Judge Erdmann reasoned:
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.
. . . .
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.