623 Fed.Appx. 335 (9th Cir. 2015), 13-10223, United States v. Razham Demar Broadnax

Docket Nº:13-10223
Citation:623 Fed.Appx. 335
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RAZHAM DEMAR BROADNAX, AKA Razham Demore Broadnax, Defendant - Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: William S. Wong, Assistant U.S. Attorney, Audrey Benison Hemesath, Assistant U.S. Attorney, USSAC - Office of the U.S. Attorney, Sacramento, CA.
Judge Panel:Before: KOZINSKI and TALLMAN, Circuit Judges, and ROSENTHAL,[**] District Judge.
Case Date:November 23, 2015
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 335

623 Fed.Appx. 335 (9th Cir. 2015)

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

RAZHAM DEMAR BROADNAX, AKA Razham Demore Broadnax, Defendant - Appellant

No. 13-10223

United States Court of Appeals, Ninth Circuit

November 23, 2015

Argued and Submitted, San Francisco, California August 13, 2015

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 32.1)

Appeal from the United States District Court for the Eastern District of California. D.C. No. 2:11-cr-00068-MCE-1. Morrison C. England, Jr., Chief District Judge, Presiding.

AFFIRMED.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: William S. Wong, Assistant U.S. Attorney, Audrey Benison Hemesath, Assistant U.S. Attorney, USSAC - Office of the U.S. Attorney, Sacramento, CA.

Before: KOZINSKI and TALLMAN, Circuit Judges, and ROSENTHAL,[**] District Judge.

Page 336

MEMORANDUM[*]

1. The district court's finding that Horton consented to the search is not clearly erroneous. United States v. Mayer, 560 F.3d 948, 956 (9th Cir. 2009). Officer McPhail testified that he twice asked for her consent to search the house and she said, " You do what you gotta do." Horton testified otherwise, but the district court could reasonably believe the officer.

Georgia v. Randolph's exception to the rule that police may conduct a warrantless search of premises with the " voluntary consent of an occupant" does not apply here. See 547 U.S. 103, 106, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006). This narrow exception " requires that the co-occupant both be physically present and expressly refuse consent." United States v. Moore, 770 F.3d 809, 813 (9th Cir. 2014). Although Broadnax testified during the suppression hearing that he objected to the search, his testimony was contradicted by three police officers, all of whom testified that " Broadnax never voiced any objection to them entering the residence."

Nor did the district court err in finding that Broadnax consented to the officer's use of his phone. The district court was entitled to rely on " the police state[ment] that Broadnax gave the phone to Officer McPhail." But even if the officer's use of the...

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