U.S. v. Henderson

• Decision Date: 06 August 2008
• Docket Number: No. 07-1014.,07-1014.
• Citation: 536 F.3d 776
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Kevin HENDERSON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

536 F.3d 776

UNITED STATES of America, Plaintiff-Appellant, v. Kevin HENDERSON, Defendant-Appellee.

No. 07-1014.

United States Court of Appeals, Seventh Circuit.

Argued October 30, 2007.

Decided August 6, 2008.

Edmond E. Chang (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellant.

Imani Chiphe (argued), Office of the Federal Defender Program, Chicago, IL, for Defendant-Appellee.

Before MANION, ROVNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Police were called to the home of Patricia and Kevin Henderson on the southwest side of Chicago to investigate a report of domestic abuse. At the scene officers met Patricia Henderson standing on the front lawn; she told them her husband, Kevin, had choked her and thrown her out of the house. She also warned that Kevin had weapons in the house and had a history of drug and gun arrests. Using a key provided by the Hendersons' teenage son, officers entered the home and encountered Kevin Henderson inside. In unequivocal terms, he ordered them out. The officers then arrested Henderson for domestic battery and took him to jail.

After Henderson's arrest and removal from the scene, Patricia signed a consent-to-search form and led the police on a search that uncovered several firearms, crack cocaine, and items indicative of drug dealing. Henderson was indicted on federal weapon and drug charges. He moved to suppress the evidence recovered from his home, arguing the search was unreasonable under the Fourth Amendment based on the Supreme Court's decision in Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006). The district court agreed, holding that Henderson's prior objection trumped Patricia's subsequent consent even though he was no longer present and objecting when she consented. The government now appeals the court's suppression order.

We reverse. Randolph left the bulk of third-party consent law in place; its holding applies only when the defendant is both present and objects to the search of his home. Although Henderson was initially at home and objected to the presence of the police when they arrived, his objection lost its force when he was validly arrested and taken to jail for domestic battery. At that point Patricia was free to consent to a search notwithstanding Henderson's prior objection; we do not read Randolph as permanently disabling her shared authority to consent to an evidentiary search of her home. Patricia's subsequent consent, freely given when Henderson was no longer present and objecting, rendered the warrantless search of their home reasonable and valid as to him.

I. Background

On a late November morning in 2003, Chicago police officers responded to a report of domestic abuse at the home of Patricia and Kevin Henderson on the southwest side of the city. At the scene officers found Patricia standing with a neighbor on the front lawn of her home. She told the officers that Henderson had choked her and then threw her out of the house after learning she had called 911. Patricia had noticeable red marks around her neck that substantiated her story.

The Hendersons' teenage son arrived shortly after the police and gave them a key to the home. Before the police entered, Patricia told them that Henderson had weapons in the house and had a history of drug and gun arrests. Patricia said she was willing to file a complaint against Henderson and wanted him arrested. The parties dispute whether or not Patricia also told the officers, prior to their entering the house, that she wanted the house searched.

The police used the key to enter the house and found Henderson in the living room. After a brief exchange, Henderson told the officers to "[g]et the [expletive] out of my house" — which the district court reasonably construed as an objection to a search. Henderson was then arrested for domestic battery and taken to the police station. Patricia was still outside and did not observe Henderson's encounter with the police. A few minutes after Henderson was taken to the station, Patricia agreed to a search of the home and signed a consent form.

Patricia led the officers to the attic where they discovered crack cocaine and drug-dealing paraphernalia, four handguns, a shotgun, a rifle, a machine gun, and live rounds of ammunition. In the basement they found a machete, a crossbow, and more ammunition, as well as an M-1000 explosive device. Patricia suggested that the officers also search the family car, and she signed another consent form. This search uncovered additional crack cocaine.

Henderson was charged with possession of crack cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), various firearms-related offenses in violation of 18 U.S.C. §§ 922 and 924, and possession of an explosive device in violation of 26 U.S.C. § 5861(d). Henderson moved to suppress the evidence obtained from the search of the house and car, arguing that the Supreme Court's decision in Randolph required suppression because he was a present and objecting resident whose express refusal to allow a search overrode Patricia's later consent. The district court agreed as to the search of the house and suppressed the evidence recovered in that search. The government appealed.¹

II. Analysis

A. Appellate Jurisdiction

Henderson moved to dismiss the government's appeal for lack of appellate jurisdiction. In a criminal case, the United States may appeal "a decision or order of a district court suppressing or excluding evidence" so long as the appeal is "taken within thirty days after the decision, judgment or order has been rendered." 18 U.S.C. § 3731. The district court announced its decision orally on June 26, 2006, and the government did not file this appeal until December 29. It did, however, move the district court to reconsider its order on July 21, within the 30-day period, and then filed its notice of appeal within 30 days of the district court's denial of the motion to reconsider.

After both parties filed briefs addressing appellate jurisdiction, a motions panel of this court denied the motion to dismiss. Decisions by motions panels do not "resolve definitively the question of our jurisdiction, and we are free to re-examine" the question when the merits panel hears the case. United States v. Lilly, 206 F.3d 756, 760 (7th Cir.2000). Often a motions panel must decide an issue "on a scanty record," and its ruling is "not entitled to the weight of a decision made after plenary submission." Johnson v. Burken, 930 F.2d 1202, 1205 (7th Cir.1991). Nevertheless, when the merits panel is no better equipped to make a decision than the motions panel — particularly regarding questions of appellate jurisdiction — "honoring the original jurisdictional decision is the more prudent course." Moss v. HealthCare Compare Corp., 75 F.3d 276, 280 (7th Cir.1996).

Both parties were given the opportunity to fully brief the jurisdictional issue before the motions panel, and under the circumstances here, we are no better situated than the motions panel to decide the issue of appellate jurisdiction. In any event, the decision of the motions panel was manifestly correct; the Supreme Court's decision in United States v. Healy squarely controls the question. 376 U.S. 75, 78, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964) (holding that "criminal judgments are nonfinal for purposes of appeal so long as timely rehearing petitions are pending"); see also United States v. Ibarra, 502 U.S. 1, 6-8, 112 S.Ct. 4, 116 L.Ed.2d 1 (1991) (per curiam); United States v. Dieter, 429 U.S. 6, 7-8, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976) (per curiam). The government's notice of appeal was timely.²

B. Application of Georgia v. Randolph

The sole issue on appeal is whether Randolph requires exclusion of evidence obtained in a warrantless search of a home after a present and objecting occupant is arrested and removed from the home and a co-occupant with authority consents to the search. The district court held that it does and granted Henderson's motion to suppress. Our review of the court's legal conclusions is de novo; factual findings and mixed questions of law and fact are reviewed for clear error. United States v. Parker, 469 F.3d 1074, 1077 (7th Cir.2006).

A warrantless search of a home is considered per se unreasonable and a violation of the Fourth Amendment unless an established exception applies. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). One such exception is voluntary consent given by a person with authority. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). This includes the defendant as the occupant of the home or premises as well as any third parties who have "common authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); see also United States v. Fields, 371 F.3d 910, 914 (7th Cir.2004) (finding consent may be obtained "either from the person whose property is searched, or from someone, such as a spouse, with actual or apparent authority over the premises") (citations omitted).

Henderson contends that his objection to the search, like that of the defendant in Randolph, overrode the consent given by Patricia. In Randolph the defendant's wife, Janet Randolph, called police and told them her husband, Scott Randolph, had taken their son away after a domestic dispute. The couple had recently separated, and when officers arrived at the family home, Janet told them she had just returned with her son after an extended stay with her parents in Canada and that her husband was a cocaine user. Randolph arrived shortly thereafter and explained that he took his son to a neighbor's so that Janet couldn't take him away again. He denied cocaine use and refused an officer's request to search his home. The officer then turned to Janet and asked for her consent to search, which she ...