Georgia v.
Randolph distinguished
Search
of home after suspect’s arrest is lawful
By
David Ziemer
david.ziemer@wislawjournal.com
Nov.
22, 2006
|
What
the court held
Case:
U.S. v. DiModica, No. 05-4164
Issue:
If a suspect’s wife consents to search of their home, and
the suspect is lawfully arrested and removed from the home,
can the police then search the home without a warrant.
Holding:
Yes. Unless the suspect objects to the search, the wife’s
consent authorizes the search.
|
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 dispositive as to him, regardless
of the consent of a fellow occupant.” Id. at 1528.
However,
the Seventh Circuit found Randolph distinguishable.
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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Case Analysis.
