Georgia v. Randolph distinguished

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Where officers did not remove a suspect in order to prevent him from objecting to a search of his home, but arrested him legally, his wife’s prior consent to search renders the search reasonable, the Seventh Circuit held on Nov. 16.

In 2004, Anita DiModica (Anita), the wife of Nicholas P. DiModica (DiModica), met with Special Agent Smith of the Wisconsin Department of Justice, and reported that she had been physically abused by DiModica two weeks earlier.

She also told him that DiModica used drugs and likely had drugs in their home, and that he owned several firearms, even though he was a convicted felon.

Pursuant to Smith’s instructions, Anita filed a domestic abuse complaint with the Cottage Grove Police Department. Anita told the officer that DiModica was likely at home, and gave them a key and written consent to search the home.

Instead of getting arrest and search warrants, Smith and a Cottage Grove officer drove to the home at 11 p.m. When DiModica answered, they claimed that Anita had been injured in an automobile accident.

DiModica and the police disputed how the officers obtained entry into the home, but the district court accepted the officers’ version at the subsequent suppression hearing: that DiModica invited them into the home’s mudroom; then went to put on a shirt; and when he returned, they arrested him, and removed him from the scene.

After the arrest, they searched the home, and found three firearms.

DiModica was charged with felon in possession of a firearm, and moved to suppress the evidence. U.S. District Court Judge Barbara B. Crabb adopted the findings of the magistrate judge and denied the motion, and DiModica pleaded guilty, reserving his right to challenge the denial of the motion.

DiModica appealed, but the Seventh Circuit affirmed in a decision by Judge William J. Bauer.

Arrest

The court first held that the arrest of DiModica was lawful. DiModica claimed that he never invited the officers into the mudroom, but left them standing outside while he got his shirt, and that they entered his mudroom without consent. However, the court found that the district court’s findings of fact were not clearly erroneous.

Because the findings of fact were: (1) the officers were lawfully in the home; and (2) they had probable cause to arrest DiModica; the court held: (1) the arrest was lawful; and (2) therefore, the arrest did not taint the subsequent search.

Search

Turning to the search, the court held that it, too, was lawful, relying on the U.S. Supreme Court’s decision in U.S. v. Matlock, 415 U.S. 164, 94 S.Ct. 988 (1974), for authority.

In Matlock, officers arrested the defendant in the yard of his residence, without asking him which room in the house he occupied, or whether he would consent to a search. Instead, the officers placed him in a squad car and then obtained permission to search the residence from a co-tenant.

The Supreme Court concluded that the officers did not have to obtain defendant’s consent prior to the search when a third party with joint occupancy consented to the search. Thus, the Court held the search lawful.

DiModica argued that the case should instead be governed by the Court’s recent decision in Georgia v. Randolph, 126 S. Ct. 1515 (2006). In Randolph, police responded when the defendant’s wife complained of a domestic dispute. At the scene, the wife said her husband was a drug user, and consented to a search of the home; the husband objected to the search.

The Court held the subsequent warrantless search unreasonable, concluding, “a physically present inhabitant’s express refusal of consent to a police search is disposit
ive as to him, regardless of the consent of a fellow occupant.” Id. at 1528.

However, the Seventh Circuit found Randolph distinguishable.

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The court concluded, “Unlike the defendant and his wife in Randolph, DiModica and his wife were not standing together at the doorway, one consenting to the search while the other refused. The officers never asked DiModica for permission to search his house. Additionally, DiModica never told the officers that they could not search his house.”

The court noted that, in Randolph, the Supreme Court acknowledged that it was drawing a “fine line”; “if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.” Randolph, 126 S. Ct. at 1527.

However, the court concluded that DiModica’s case fell on the same side of that line as Matlock, and that any differences between the cases were immaterial.

The court reasoned, “The officers did not remove DiModica to avoid his objection; they legally arrested DiModica based on probable cause … Once DiModica was arrested and removed from the scene, Anita’s consent alone was valid and permitted the officers to legally search the residence.”

Accordingly, the court affirmed.

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