Darryl O. MARTIN, Appellant, v. UNITED STATES, Appellee.
No. 06-CM-1001.
District of Columbia Court of Appeals.
Argued Dec. 14, 2007. Decided July 10, 2008.
IV.
CONCLUSION
For the foregoing reasons, the decision of the CRB is affirmed in part and vacated in part. The case is remanded for further proceedings consistent with this opinion.
So ordered.
Heather A. Hill, Assistant United States Attorney, for appellee. Jeffrey A. Taylor, United States Attorney, and Roy W. McLeese III, Lisa H. Schertler, Anne Y. Park, and Stephanie L. Brooker, Assistant United States Attorneys, were on the brief, for appellee.
Before WASHINGTON, Chief Judge, BLACKBURNE-RIGSBY, Associate Judge, and FARRELL, Associate Judge, Retired.*
WASHINGTON, Chief Judge:
Appellant Darryl Martin was charged with carrying a dangerous weapon1 and possession of an unregistered firearm.2 Before trial, appellant moved to suppress the admission of physical evidence (a firearm) recovered from his home. Following the trial court‘s denial of the motion, appellant entered a conditional guilty plea to the charge of possession of an unregistered firearm, reserving his right to appeal the trial court‘s denial of his motion to suppress. Super. Ct.Crim. R. 11(a)(2). On appeal, appellant contends that the trial court erred in concluding that the police did not conduct a search. We agree and reverse.
I.
Factual Background
On April 20, 2006, Metropolitan Police Department (MPD) Officer Lenox Antoine
After hearing this information, Officer Antoine called detectives to the scene. Detective Collis Timlick arrived and learned from other officers on the scene that witnesses had seen appellant fire a shotgun outside the house before running back inside. Detective Timlick questioned appellant about this allegation, but appellant denied it. The detective then asked appellant for consent to search his house. Appellant refused. Detective Timlick then informed appellant that they would have to secure the premises until they received a search warrant. Then, either appellant or MPD called his mother, Eula Martin. Within fifteen to twenty minutes, Ms. Martin arrived at the scene. Detective Timlick informed Ms. Martin that witnesses reported seeing appellant fire the gun in the air. She then invited the officers to come inside.
Once inside the home, Detective Timlick informed Ms. Martin that the police would either have to get a search warrant to search her home, which would permit them to search the entire house for the shotgun, or she could assist them “by doing a consent to search and sign a form.”3 Appellant was present for this conversation and did not interject or object. Ms. Martin signed the authorization form.4 Then, either Ms. Martin told her son to go get the gun or appellant went of his own accord; regardless, appellant went to a coat closet and retrieved the gun. It is undisputed that the police did not order him to do so. MPD officers arrested appellant.
Motion to Suppress Hearing
Appellant moved pretrial to suppress the shotgun, asserting that “[t]he police entered the defendants’ [sic] home without a warrant,” and that although the mother consented to a search, “the defendant was present denying the authority.”6 At the hearing, the government presented testimony from Officer Antoine, Detective Timlick, and a crime scene technician. On cross-examination, Detective Timlick admitted that appellant denied “consent to search the house.” The defense called Ms.
The trial court considered Detective Timlick‘s testimony more persuasive than Ms. Martin‘s, as she had difficulty explaining what she thought when she signed the form. The court, however, noted that regardless of whose testimony it credited, it found that no search had occurred: “They didn‘t search the house. There‘s no search of this house. There wasn‘t a single search conducted.”
II.
Appellant contends that the trial court erred in concluding that the police officers did not conduct a search of his home by mistakenly relying on his mother‘s consent as well as his assistance to the police in conducting the search once they were already inside the home. We agree.
The
The
Our decisions also make it clear that the threshold of one‘s home may not be crossed without a warrant unless an exception to the warrant requirement applies. One such exception occurs when parties voluntarily consent to such an intrusion. See Robertson v. United States, 429 A.2d 192, 194 (D.C.1981). In Robertson, police officers arrived at appellant‘s home, entered, and arrested him in connection with a robbery. Id. While the officers had probable cause to arrest Robertson for the robbery, they did not have a warrant to enter his home to effectuate the arrest. Id. at 193-94. Robertson argued, citing Payton, that his constitutional rights had been violated by the police because they entered his home and arrested him without a warrant. Id. at 194. This court agreed with Robertson that unless some exception to the warrant requirement was applicable, his arrest was improper because the police entered his home without a warrant. Ultimately, the court upheld the conviction, however, because it concluded that Robertson had invited the police inside his home:
[I]t is clear from the record that when the officers approached the door to appellant‘s house[,] they were invited in by appellant. There is no indication that appellant‘s invitation was the result of police coercion or undue influence. Thus the officers’ entry into the dwelling was on the basis of appellant‘s consent voluntarily given.... [W]e hold that the officer‘s entry into the dwelling of appellant was not in violation of the
Fourth Amendment .
Id. These cases set out clear
III.
Because the police entry into the home constituted a search in this case, we must next consider whether any exceptions to the warrant requirement apply in this case. “A search conducted without a warrant is ‘per se unreasonable’ under the
Before the trial court, Martin argued not only that he refused to consent to a search of the home, but also that his mother‘s later consent was ineffective, according to the Supreme Court‘s recent opinion in Georgia v. Randolph, 547 U.S. 103 (2006). In Randolph, a woman requested that police come into her home to find evidence of drug use by her husband; however, her husband, who was present when the police arrived, refused to consent. 547 U.S. at 107. Despite Mr. Randolph‘s refusal, Mrs. Randolph led the police into the home and to the contraband. Id. The Supreme Court held this search to be unconstitutional despite the consent of Mrs. Randolph, a physically present resident of the home. 547 U.S. at 120.
The Court reached this conclusion after reviewing its prior consent cases. It first acknowledged that voluntary consent excuses a warrantless search — even where the consenting individual merely shares common authority over the area. 547 U.S. at 109. Indeed, the police may act upon the consent of one who they reasonably believe to share common au-
Thus, following Randolph, appellant‘s mother‘s later consent in this case did not vitiate her son‘s earlier denial of consent. After his initial refusal, the police could have obtained valid consent to the search only from appellant. See United States v. Murphy, 516 F.3d 1117, 1125 (9th Cir. 2008) (holding that the refusal of a tenant renders a co-tenant‘s later consent invalid, even if the co-tenant was not physically present for the refusal). Yet there is no evidence that appellant unambiguously repudiated that lack of consent prior to the police entering the home. Appellant‘s mother — not appellant — let the police enter the home.10
The government, however, disputes the applicability of Randolph here, arguing that the Court carved out an exception for living arrangements that reflect a recognizable hierarchy, such as parent-child. Indeed, the Court said:
Unless the people living together fall within some recognized hierarchy, like a household of parent and child or barracks housing military personnel of different grades, there is no societal understanding of superior and inferior....
Randolph, supra, 547 U.S. at 114. Thus, by implication, a parent and child household reflects a socially understood hierarchy. Because this case involves a mother and son, the government asserts that Martin‘s refusal to consent was inferior to — and thus, was superseded
While the record is sparse, it is clear on two significant facts: Martin was twenty-six years old at the time he refused consent and Detective Timlick believed Martin had common authority over the home, which is why Timlick asked Martin to consent to the search. If Martin had the authority to consent to a search of his mother‘s home such that he could implicate her privacy rights in her absence, then he had the common authority to deny it. And once he refused consent, that refusal bound the police. Randolph, supra, Murphy, supra, 516 F.3d at 1125. Absent any clear revocation of Martin‘s earlier denial of consent, the police‘s subsequent entry was unlawful. See Murphy, supra, 516 F.3d at 1125 (stating that the tenant‘s objection “remains effective barring some objective manifestation that he has changed his position and no longer objects“).
When wholly removed from the events outside the home, what happened inside may indeed not have amounted to a search since Martin apparently retrieved the weapon either at his mother‘s or his own behest. But we cannot view this later act in a vacuum. Martin invoked his right to privacy; the police ignored him. Thus, he had no assurance that a repeated objection would have been met with a different result.11 The police entry without a warrant constituted an unlawful search and the shotgun must be suppressed as the fruits of that unlawful search. See Oliver v. United States, 656 A.2d 1159, 1172 (D.C. 1995).
IV.
We must finally consider whether Martin waived his argument that the police unlawfully entered his home in violation of the
In addition, defense counsel cited Georgia v. Randolph as supporting his argument that the police conducted an unlawful search: “the case of Georgia v. Randolph examines this problem exactly.” Appellant‘s trial counsel‘s reference to Randolph as “exactly” examining his client‘s problem further apprised the trial court of the relevant objection: warrantless entry. While both Randolph and the instant case involve a subsequent discovery of evidence (the drugs in Randolph; the shotgun here), it is the initial breach of the sanctity of the home that requires the consent in the first instance.
Despite these early protests to a warrantless entry, the trial court and the parties shifted focus to conduct occurring inside the home. This change in focus does not, however, negate the fact that appellant‘s trial counsel had presented the court with the issue of warrantless entry. Given counsel‘s initial framing of the issue for the court, the facts adduced at the hearing, and the citation and discussion of Georgia v. Randolph, we are satisfied that the trial court was sufficiently apprised of the issue on review.
We agree with the government that Martin‘s appellate counsel failed to argue that the entry itself constituted an unlawful search either in his principal brief or at oral argument. Counsel even conceded that he was not making an unlawful entry claim at oral argument. However, both parties have now had an opportunity to brief the issue, and we therefore believe that it is appropriate for us to decide the issue. See Outlaw v. United States, 632 A.2d 408, 410 n. 7 (D.C. 1993) (reversing a conviction based on an argument first raised by this court at oral argument, but after this court invited supplemental briefing); see also United States Nat‘l Bank v. Independent Ins. Agents of Am., 508 U.S. 439, 447 (1993) (“[A] court may consider an issue antecedent to ... and ultimately dispositive of the dispute before it, even an issue the parties fail to identify and brief.“) (internal quotations omitted).
The trial court found that “[t]here wasn‘t a single search conducted.” But a search occurs the moment the home‘s threshold is crossed. Here, because the police crossed that threshold without a warrant and over Martin‘s protest, they violated Georgia v. Randolph and conducted an unlawful search. Accordingly, the trial court‘s denial of the motion to suppress is
Reversed.
FARRELL, Associate Judge, Retired, concurring:
When, following the suppression hearing testimony, the trial judge asked appellant‘s counsel “what‘s the search,” counsel said that it was the retrieval of the gun from the closet by appellant, something he had done under “threat” by the police that otherwise they would obtain a warrant and search the entire house, if necessary. The judge ruled that appellant‘s own actions were not a search — that merely by giving him a choice that included avoiding a search, the police had not made him an agent of the government.
We now reverse, however, on the different ground that the warrantless entry of the house, undeniably a “search,” was unlawful because effected over appellant‘s refusal to consent to the entry. Apparently uncertain himself whether that issue had been preserved, appellant‘s counsel did not
I nonetheless agree that we should not consider the point forfeited. At trial, appellant‘s counsel directed the court to Georgia v. Randolph, 547 U.S. 103 (2006), and his written motion to suppress contained enough language — though barely so — to inform the court that appellant was challenging the unconsented entry as part of the “search of the house.” As for appellant‘s omissions on appeal, the government concedes that our decisions are not uniform in imposing strict forfeiture of issues not raised by a defendant until prompted by the court in supplemental briefing, as in this case. Compare, e.g., Anthony v. United States, 935 A.2d 275, 282-83 n. 10 (D.C. 2007), with Rose v. United States, 629 A.2d 526, 535-36 (D.C. 1993). The entry and consent issues have now been briefed, and the government does not argue that the trial record is too undeveloped to permit a decision on the applicability of Randolph to this case.
On the merits, I agree that Randolph requires suppression, although I confess to uncertainty about the reach of that decision. Appellant was a mature adult residing in the home — “an inhabitant of shared premises” — and thus not a dependent within “some recognized hierarchy, like a household of parent and child,” 547 U.S. at 114, such that the police could ignore his refusal to consent in favor of the mother‘s permission.1 The government points to his admission (in the motion to suppress) that his mother owned the house, and seeks to limit Randolph to situations involving “parties with equal authority” in the property sense, such as “cotenants.” But the Court there used words such as “co-tenant,” “co-inhabitant,” and “fellow occupant” or “resident” more or less interchangeably; and its precise holding was that “a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given ... by another resident.” Id. at 120. As appellant shared residency of the home with his mother, yet was not a “child” in any sense connoting a “societal understanding of superior and inferior,” id. at 114, Randolph did not allow the police to disregard his refusal to consent. A contrary rule would encourage police to ignore refusal by a person with apparent authority to deny entry and to look instead for another, more compliant resident with a “superior” right to consent, when Randolph implies that the incentives should run the other way — toward obtaining a search warrant if no exigent circumstances exist.