United States v. Johnson, No. 09-6461 (6th Cir. Aug. 29, 2011) (to be published). Panel of Chief Judge Batchelder, and Judges Boggs and White.
Possessing counterfeit securities and fraudulent ID docs. 45-month sentence.
Defendant appealed dist ct's denial of motion to suppress. COA reversed.
Facts:
Police conducted "knock and talk" after they got an anonymous call that residents at target address possessed marijuana and a firearm. Extended family lived in the home, and defendant had stayed there intermittently for several months (his somewhat estranged wife lived there). Another resident opened the door to police.
Defendant came out and objected to a search. (These facts were in dispute.) Other residents consented to a search. Defendant's wife voluntarily turned over some marijuana. Police began searching the bedroom she shared with the defendant; they found a gun, counterfeit money, marijuana, digital scales, and computer equipment.
District Court's Conclusion:
The dist ct found that the defendant did object to a search before the police searched the bedroom. The dist ct, however, found that this objection was invalid b/c the defendant was not a full-time resident of the home. He had, the ct found, a possessory interest "inferior" to the interests of the residents who did consent to a search.
Appellate Court's Conclusions:
Under Georgia v. Randolph, 547 U.S. 103 (2006), a physically present resident's express refusal of consent is dispositive as to him or her, regardless of the consent of fellow occupants. The appellate court here noted that had the S. Ct. been concerned with "relative degrees of possessory interest among residential co-occupants" it could have drawn a distinction in Randolph. But the S. Ct. did not do so. Absent a recognized hierarchy (like parent and child, or like military rank in barracks housing), there is no social understanding of inferior and superior.
The defendant had a reasonable expectation of privacy in the bedroom. He was present when the police arrived. He expressly objected to a search. So the search of the bedroom was unreasonable.
