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Ninth Circuit Announces Adoption of ‘Premises Rule’ for Co-Tenant Consent-to-Search Analysis, Holds Co-Tenant’s Consent Invalid Where Defendant Instructed Co-Tenant Not to Allow Police Entry in Their Presence

by Sam Rutherford

The U.S. Court of Appeals for the Ninth Circuit held that a defendant’s live-in girlfriend could not validly consent to police searching their shared residence where the defendant, who was detained nearby, yelled to her “Don’t let the cops in, and don’t talk to them.”

Background

One evening in June 2021, a Huntington Beach Police Department helicopter was struck several times by a bright green laser shot from the ground. Such laser strikes have the potential to interfere with the pilot’s eyesight and ability to fly. The helicopter crew turned their attention toward an apartment complex where they believed the laser originated from, observed a man they believed responsible for the laser strikes, provided a description of the man to ground units, and directed them to the man’s apartment.

When police knocked on the apartment door, a woman answered. She initially denied that her boyfriend was home but then said he would be out to speak with officers after getting dressed. The boyfriend, Brett Wayne Parkins, emerged from within the apartment, stepped out on the apartment landing, and agreed to speak with the police. Parkins did not want to be frisked for weapons and attempted to re-enter his apartment. Officers grabbed him, pulled him away from the apartment’s front door, and escorted him down a flight of steps to a bench to question him.

Parkins denied knowledge of or involvement in the laser strikes and asked to return to his apartment or speak with his girlfriend. Police refused, stating that he was detained. One of the officers then went to Parkins’ apartment to ask her if they could search the apartment for the laser. She consented to a search of the apartment, and while she was beginning to fill out a consent-to-search form, Parkins yelled up at her, “Don’t let the cops in, and don’t talk to them.” He also yelled, “Don’t talk to them, talk to them outside” and “Don’t tell them anything.” According to bodycam video, both the officer at the apartment door and the girlfriend clearly heard Parkins.

One of the officers then handcuffed Parkins and placed him in a squad car because he was “running [his] mouth” and “obstruct[ing.]” Officers searched the apartment and found a laser pointer with the name “Brett” etched on it. Parkins never consented to the search and officers never obtained a warrant.

Parkins was arrested and, during a subsequent jailhouse interrogation, he waived his Miranda rights and admitted to owning a green laser pointer. Officers never mentioned they had found the laser pointer during their search of his apartment. Nor did they show Parkins the laser pointer during the interrogation.

Parkins was indicted on one count of aiming a laser pointer at an aircraft, in violation of 18 U.S.C. § 39A. Parkins’ attorney moved to suppress the laser pointer and the post-arrest jailhouse statements as fruits of an unconstitutional search and seizure, arguing that he had expressly refused to consent to the search. The U.S. District Court for the Central District of California rejected the motion for two reasons. First, the District Court ruled that a defendant must be standing at the doorway to object to a warrantless search to which his co-tenant consents. Second, Parkins did not “expressly” refuse consent to search the apartment, as he merely instructed his girlfriend not to admit the officers. Parkins then entered a conditional guilty plea, preserving his right to appeal the denial of his suppression motion.

Analysis

The Court began its analysis by recounting the governing Fourth Amendment principles, which generally prohibit warrantless searches and seizures—but a recognized exception to the warrant requirement is consent-based searches. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). A co-tenant may consent to the search of a shared residence even if the defendant is not present to authorize the consent. United States v. Matlock, 415 U.S. 164 (1974) (holding “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”); see also Illinois v. Rodriguez, 497 U.S. 177 (1990) (holding that where a person has apparent authority to consent to a search—but not actual authority—police may rely on such consent if they reasonably believe the person had authority to consent).

However, a warrantless search—ostensibly based on consent—of a shared dwelling cannot be justified “over the express refusal of consent by a physically present resident.” Georgia v. Randolph, 547 U.S. 103 (2006). A non-consenting, co-tenant defendant does not need to be physically located at the premise’s threshold or doorway to validly refuse consent. Fernandez v. California, 571 U.S. 292 (2014). The Fernandez Court explained that the defendant’s “presence on the premises to be searched” is sufficient to negate the co-tenant’s consent.

In reaching its conclusion, the Fernandez Court relied on the “premises rule” set forth in Bailey v. United States, 568 U.S. 186 (2013), in the context of the police’s authority to detain someone incident to the execution of a search warrant. The premises rule provides that the authority to detain a person is limited to the “immediate vicinity of the premises to be searched.” Bailey. Notably, “immediate vicinity” is not restricted to the doorway or even the property lines; rather, courts must take into account the entire context, “including the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors.” Id.

Turning to the present case, the Court announced that a defendant need not have been at the threshold or doorway of his or her residence to lodge a valid objection to his or her co-tenant’s consent to search. Rather, the defendant “must have both been present on the premises and expressly refused consent.” Thus, the Court ruled that Parkins could validly lodge an objection to his girlfriend’s consent to search their apartment from the location where he was detained on the bench down one flight of steps from the apartment’s front door.

In so ruling, the Court rejected contrary authority from the Seventh Circuit, relied on by the District Court in this case and championed by the Government, holding that the non-consenting defendant must be physically “standing at the door” to validly object to a search. United States v. Witzlib, 796 F.3d 799 (7th Cir. 2015) (upholding consent-based search where co-tenant defendant was standing in driveway and thus not “in fact at the door”); United States v. Jones, 861 F.3d 638 (7th Cir. 2017) (upholding consent-based search where defendant was “located ten to twenty feet from the entrance of the residence”). The Court expressly rejected Witzlib and Jones because the Seventh Circuit “never analyzed or acknowledged Fernandez’s reliance on Bailey in establishing a ‘premises rule’ and define its scope,” explaining that the Seventh Circuit’s formulaic reliance on the “doorway rule” fails to take into account “Fernandez’s clear application of Bailey’s ‘premises rule’ to the co-tenant consent context.”

Having determined that Parkins was in sufficiently close proximity to his apartment to object to the consent to search, the next issue was whether he “expressly” did so. While implicit refusals are insufficient, “both words and actions can constitute an express refusal to grant the police entry.” See Bonivert v. City of Clarkston, 883 F.3d 865 (9th Cir. 2018). In Bonivert, the defendant attempted to physically prevent officers from gaining entry to this residence by locking the side door and trying to close the back door on officer as they attempted to enter.

In the present case, the Court stated that Parkins’ statement to his girlfriend, “Don’t let the cops in,” was “sufficiently clear to convey his objection to allowing the police to enter his apartment” and that “all the officers heard” him. Additionally, his stepping out onto the apartment’s front landing when the officers first confronted him at his front door conveyed his objection to the search of his residence like in Bonivert, according to the Court. Finally, the Court explained that nothing in the case law required Parkins’ “objections be directed specifically toward the officers,” as the Government argued. Thus, the Court held that the “consent-based search of Parkins’ home was unlawful.”

Conclusion

Accordingly, the Court reversed the District Court’s ruling on the search of the apartment and remanded the case. See: United States v. Parkins, 92 F.4th 882 (9th Cir. 2024).  

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United States v. Parkins

 

 

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