- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Criminal Procedure
- Date Filed: 10-23-2014
- Case #: 13-10464
- Judge(s)/Court Below: Circuit Court Judge Silverman for the Court; Circuit Court Judges Nelson and M.D. Smith, Jr.
- Full Text Opinion
Marlon Moore appeals his conviction for possession of marijuana with intent to distribute under the Fourth Amendment and Georgia v. Randolph, 547 U.S. 103 (2006), a U.S. Supreme Court case which created a narrow exception to the search of a defendant's home. Moore resided with his fiancee, Jones, at the time of the search. After Jones consented to a search, she called Moore on the phone, knocked on the door calling for Moore, and, after the police rammed the door open, called out to Moore again. When he did not answer, the police entered the home and arrested him. While, "'[t]he Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained,'" Randolph creates a narrow exception: "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." This exception contains two elements: the occupant must (1) be physically present and (2) expressly refuse consent. Implicit consent will not suffice. Because Moore did not answer Jones' phone calls or calls at the door, he did not expressly refuse to the search. Due to his failure to "engage in any affirmative conduct to physically prevent the police officers from coming inside the house," the exception in Randolph does not apply. Further, the panel found Moore's conduct to be acquiescence to his co-occupant's consent and ruled that such acquiescence is insufficient to satisfy the narrow exception in Randolph. AFFIRMED.