Fourth Amendment - Search and Seizure - Eighth Circuit Holds That a Cotenant's Consent at the Time of the Search Can Overrule a Suspect's Recent Objection

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FOURTH AMENDMENT--SEARCH AND SEIZURE--EIGHTH CIRCUIT HOLDS THAT A COTENANT'S CONSENT AT THE TIME OF THE SEARCH CAN OVERRULE A SUSPECT'S RECENT OBJECTION.--United States v. Hudspeth, 518 F.3d 954 (8th Cir. 2008) (en banc).

"[T]here are few areas of Fourth Amendment jurisprudence of greater practical significance than consent searches." (1) However, some have described the Supreme Court's current consent doctrine as a legal fiction, imputing consent where none existed. (2) One situation in which this fiction has run into trouble is when two people have standing to consent, but they disagree. The Supreme Court touched on this problem in Georgia v. Randolph, (3) holding that one tenant's consent could not overrule her present cotenant's objection. Recently, in United States v. Hudspeth, (4) the Eighth Circuit held that a suspect's wife's consent was valid regarding the seizure of the family's home computer, despite the suspect's previous objection. (5) In doing so, the court laid down an arbitrary rule that creates perverse incentives for law enforcement to obtain consent by keeping objecting suspects away from their homes and unreasonably ignoring their stated objections.

In 2002, officers investigating the illegal sale of pharmaceuticals executed a search warrant on Handi-Rak Service, Inc. (6) During the search, investigators discovered child pornography on several compact discs in the office of Roy Hudspeth, Handi-Rak's Chief Executive Officer. (7) Hudspeth gave a Missouri state trooper, Corporal Nash, oral and written consent to search the computer, which contained additional images of child pornography. (8) Based on information provided by Hudspeth and evidence collected at Handi-Rak, Corporal Nash believed there was also child pornography on Hudspeth's home computer. (9) Corporal Nash requested permission to search Hudspeth's home computer, but Hudspeth refused. (10) Hudspeth was subsequently arrested and taken to the county jail. (11)

Corporal Nash went with three other officers to the Hudspeth home. (12) After informing Mrs. Hudspeth that they had arrested her husband, Corporal Nash asked her for permission to search the home. He did not tell Mrs. Hudspeth that her husband had previously objected to the search. (13) When she refused, Corporal Nash requested permission to take the family computer. (14) Mrs. Hudspeth "said she did not know what to do," and asked what would happen if she refused. (15) Corporal Nash told her that he would apply for a search warrant while an armed uniformed officer remained at her home to make sure no evidence was destroyed. After a failed attempt to contact her attorney, Mrs. Hudspeth consented to the seizure of the computer. The officers discovered additional images of child pornography on Hudspeth's personal computer. (16)

Hudspeth was indicted on one count of possession of child pornography and one count of producing and attempting to produce child pornography. (17) After the district court denied his motion to suppress the evidence found on both computers, Hudspeth pled guilty to the possession charge, reserving his right to appeal the denial of his motion. (18) The district court sentenced Hudspeth to sixty months of incarceration. (19) Hudspeth appealed, arguing that the district court erred in denying his motion to suppress. (20)

A panel of the Eighth Circuit affirmed in part and reversed in part. (21) Writing for the panel, Judge Melloy (22) examined Hudspeth's objection to the search of the home computer in light of Randolph, which was handed down by the Supreme Court after oral argument but before the opinion was issued by the panel. (23) In Randolph, an officer met both husband and wife at the door to their home. (24) When the husband refused to consent to a search, the officer turned to the wife, who consented. (25) The Court held that the wife's consent was insufficient in the face of her physically present husband's contemporaneous objection. …