Friday, October 24, 2014
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Court Upholds Search of Residence, Cites Fiancée’s Consent
By KENNETH OFGANG, Staff Writer
A warrantless search of a residence did not violate the Fourth Amendment where officers had the consent of the defendant’s fiancée, who was living at the home, and the defendant was home but refused to come to the door, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel affirmed Marlon Moore’s conviction and sentence on charges of possession of marijuana with intent to distribute. Moore was arrested in January 2012, and was sentenced to 46 months in prison. Prison records show that he is serving his sentence at Phoenix Federal Correctional Institution and is due to be released in January 2016.
Agents testified that they had identified Moore in 2011 as a suspected marijuana distributor, and that they initiated surveillance of his residence after an informant told them a large shipment had been dropped at his Phoenix residence. Moore was sharing the home at the time with his fiancée and four children, and was operating a taxi business as well as working in construction.
Lengthy Surveillance
After watching the house for more than a day, and after ringing the bell but getting no response, even though they heard movement inside, officers decided to seek a warrant, but decided first to try the phone number for the taxi service, since a cab had been parked outside the house all day. Moore’s fiancée, Kristen Jones, answered and said she would meet police at the house, according to testimony at a suppression hearing.
An agent testified that Jones said her children and sister were in the house and that she was very concerned about what would happen if officers got a warrant, which she was told they were in the process of doing. After obtaining Jones’ signature on a consent form, the officers said, they knocked on the door, and Jones called to Moore and her sister, but there was no answer, and officers were unable to immediately enter because the door was bolted.
Jones eventually consented to the use of a battering room.
Once inside the house, officers arrested Moore, seized boxes of marijuana, and gave Miranda warnings to Moore, who confessed that the marijuana was his and gave details of the business, officers testified.
On appeal, the defense argued that the search violated Georgia v. Randolph, 547 U.S. 103 (2006), which held that a warrantless search was illegal where one resident consented but another was present and refused.
Judge’s Reasoning
But Ninth Circuit Judge Barry Silverman said Randolph did not apply because Moore did not refuse consent, but “simply acquiesced in letting his fiancée deal with the police.”
For Randolph to apply, he said, a person must “expressly refuse consent.” It was not enough for Moore to refuse “implicitly.” Moore would have had a stronger case, the judge said, if he had slammed the door and locked the deadbolt after talking to police.
“Moore simply remained in the house while (his fiancée) worked with the police to gain entry to the house,” Silverman wrote.
Judge Milan D. Smith Jr. and Senior Judge Dorothy W. Nelson concurred.
In a separate, unpublished memorandum, the panel rejected Moore’s other challenges to his conviction and sentence, holding, among other things, that agents’ taking advantage of Jones’ concern for the welfare of her children did not amount to coercion.
The case is United States v. Moore, 13-10464.
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