Metropolitan News-Enterprise


Friday, February 16, 2024


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Ninth Circuit:

Shout of ‘Don’t Let Cops In’ Rendered Search Nonconsensual

Opinion Says Defendant’s Bellowed Order From Downstairs in Apartment Complex Was Sufficient to Object to Warrantless Search of Shared Home, Nullifying Consent Rendered by Live-in Girlfriend to Officers


By Kimber Cooley, Staff Writer


The Ninth U.S. Circuit Court of Appeals has held that consent by a cohabitating girlfriend to search an apartment was invalid where the defendant—who was located down one flight of stairs and one short walkway away from his unit—shouted to her, “Don’t let the cops in and don’t talk to them” and had resisted officers’ attempts to check him for weapons when he earlier answered the door.

Wednesday’s opinion by Judge John B. Owens, joined in by Judges Susan Graber and Morgan Christen, reverses the denial of defendant Brett Wayne Parkins’ suppression motion by District Court Judge Fernando Aenlle-Rocha of the Central District of California.

On June 25, 2021, Huntington Beach Police helicopter officers were searching for a vehicle involved in a fatal hit-and-run when their helicopter was hit with a bright green laser. Lasers hitting police helicopters had been a repeat problem in the area and the officers were able to determine that the laser was likely shot from an apartment complex by a man matching Parkins’s description.

Aenlle-Rocha found that the consent to search Parkins’ apartment by Parkins’ live-in girlfriend, which led to the discovery of a green laser pointer, was valid, and that Parkins’ shouts to her from downstairs in the complex did not invalidate the warrantless search because Parkins was not “physically present” to object. Aenlle-Rocha further found that his shouts to his girlfriend were not “express refusals” to the search.

Owens disagreed.


The judge said that the U.S. Supreme Court’s 1974 decision in United States v. Matlock and its 2006 opinion in Georgia v. Randolph govern consent-searches of shared dwellings.

In Matlock, the court held that “the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.” In Randolph, it clarified that the warrantless search of a shared home cannot be “over the express refusal of consent by a physically present resident.”

Owens noted that the court in Randolph “explained 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.’ ”

Aenlle-Rocha found that actual presence at the door was required to count as “physically present” and that Parkins’ shouting at his girlfriend the command not to let the officers in was not “express refusal” to search.

Physically Present

The issue on appeal, Owens said, is whether the words “at the door” in the Randolph decision must be taken literally as a requirement of what counts as “physically present.” Aenlle-Rocha found the answer to that question to be “yes,” in part relying on precedent from the Seventh U.S. Circuit Court of Appeals.

Owens wrote:

“The better reading of Randolph counsels that the words ‘at the door’ should not be taken as mandatory…. As the Supreme Court stated over and over in Randolph, a defendant need only be ‘physically present’ to object to a search.”

He looked to the 2013 U.S. Supreme Court case Bailey v. United States, a case involving the issue of what counts as “immediate vicinity” to justify the detention of a person incident to the execution of a search warrant. Owens noted that Bailey “offered the following guidance: that the ‘immediate vicinity’ is not limited to the doorway or even the property lines,” saying that:

“Instead, courts should examine the entire context.’”

Owens reasoned that requiring a defendant to stand at the door for his express objection to the search to count “creates all kinds of practical problems, including a dangerous and bizarre incentive to race to the doorway to lodge an objection.…Nothing in any of the Supreme Court’s cases suggests that this incentive is necessary or that it is a good idea.”

Express Refusal

Owens declared:

“Parkins’s statement (‘Don’t let the cops in’), which all the officers heard, was sufficiently clear to convey his objection to allowing the police to enter his apartment. A reasonable person would have understood Parkins’s intent to keep the inside of his home private. Just fifteen minutes prior, Parkins had, moreover, already resisted contact with the police at his front door by attempting to pull away from the officers and retreat into his apartment when they initiated a frisk for weapons. That resistance to the police at his doorstep further clarifies the import of Parkins’s subsequent express objection—he did not want the police in his home.”

Rejecting the standard set by Aenlle-Rocha, Owens said:

“The government nonetheless contends that Parkins did not lodge an express objection because he never told the officers directly that he was refusing them entry. The district court accepted this argument. But no case law supports the district court’s requirement that objections be directed specifically toward the officers to qualify under Randolph.”

Defendant’s Statements

Owens’s opinion affirms Aenlle-Rocha’s denial of a suppression motion as to Parkins’ pre-arrest and post-arrest statements. Owens found no “interrogation” occurred when Parkins spoke with the officers at the complex which consisted of “periods of silence interspersed with brief exchanges” and the police “asked no further questions about the laser strikes other than asking once where Parkins’s laser pointer was located.”

Because there was no “interrogation,” there was no Miranda violation, he said.

Owens added that Parkins’ post-arrest statements made during a jailhouse interview were not “fruit of the poisonous tree” due to illegal search of his residence. He explained:

“Parkins’s statements at the police station were not a product of the unlawful search of his apartment because the officers did not confront Parkins with the evidence obtained as a result of that search. Nor were his statements a product of a purportedly unlawful arrest; the police had ample probable cause to arrest Parkins before they found the laser pointer.”

The case is United States v. Parkins, 22-50186.


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