‘Come in’ trumps earlier ‘Get out!’

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If one resident of a home told you to “get the [expletive] out of my house,” but the other resident later invited you in, would you feel comfortable entering the home?

Why am I asking an etiquette question more appropriately addressed to Miss Manners in a legal newspaper?

Because, such questions are central to how the Seventh Circuit answers Fourth Amendment questions in light of the U.S. Supreme Court’s decision in Georgia v. Randolph, 547 U.S. 103 (2006).

In Randolph, the Supreme Court held that where one tenant is both present and objecting to entry by police officers, that objection nullifies the consent of a co-tenant.

On Aug. 6, however, the Seventh Circuit held that, where the objecting tenant is lawfully arrested and removed after his objection, the co-tenant’s consent to entry and search is valid.

Explaining for the court, Judge Diane S. Sykes wrote, “We know of no social convention that requires the visitor to abstain from entering once the objector is no longer on the premises; stated differently, social custom does not vest the objection with perpetual effectiveness.”

However, Judge Ilana Diamond Rovner wrote in dissent, “The ordinary social guest, I submit, would suggest that he and his host adjourn to a nearby coffee shop rather than risk the wrath of the absent tenant.”

The case began when Chicago police were called to the home of Patricia and Kevin Henderson to investigate a report of domestic abuse.

Patricia informed them that Kevin had choked her and thrown her out of the house. She also warned that Kevin had weapons in the house and a history of drug and gun arrests.

Using a key supplied by the Hendersons’ teenage son, the officers entered, only to be told by Kevin to “get the [expletive] out of my house.” Instead, the officers arrested Kevin for domestic abuse and took him to the police station.

Patricia then consented to a search, and led them to the attic where they found illegal drugs, firearms, and explosives.

Kevin was charged in federal court with possession of cocaine with intent to deliver, various firearms offenses, and possession of an explosive device. Relying on Randolph, the district court suppressed the evidence.

However, the Seventh Circuit reversed.

Citing Randolph, the court began by stating that, “the reasonableness of a disputed consent search should be evaluated from the standpoint of the social expectations of a third party faced with an invitation from one co-tenant to enter and an order from another to remain outside.”

The court called this the “social-expectations theory.”

The court noted that other circuit courts of appeal have divided on the question whether the lawful arrest and removal of the objector permits search pursuant to a co-tenant’s consent. The Eighth Circuit has held that it does. U.S. v. Hudspeth, 518 F.3d 954 (8th Cir. 2008). The Ninth Circuit has held that it does not. U.S. v. Murphy, 516 F.3d 1117 (9th Cir. 2008).

The Seventh Circuit found the Eighth Circuit’s analysis more persuasive, agreeing that the “contemporaneous presence of the objecting and consenting cotenants” was “indispensable” to the holding in Randolph.

The court concluded that, when the objecting tenant is not there to “enforce” his objection, as he was in Randolph, the objection loses its force.

Judge Rovner objected to this emphasis on power to enforce the objection. Rovner wrote, “Only in a Hobbesian world would one person’s social obligations to another be limited to what the other is present and able to enforce.”

However, the majority disagreed, opining, “a visitor who relies on the express permission given by one resident AFTER the departure of the objecting resident is not necessarily opportunistic, nor always a social outlaw (emphasis in original).”

Addressing Judge Rovner’s comment concerning adjournment to a nearby coffee shop, the majority called it only one, but not the only, socially acceptable way to address the dilemma.

Because it was undisputed that the officers’ arrest and removal of Kevin was lawful, rather than pretextual, the court reversed the district court’s grant of his suppression motion.