Girlfriend’s Consent to Enter and Search Apartment Invalid

by | February 15, 2024

United States v. Parkins, 2024 WL 607346 (9th Cir. 2024)

A Huntington Beach, California, police helicopter was hit by a green laser. Several commercial aircraft and other police helicopter flights in the area had been struck by the same laser on multiple occasions over a six-month period. This time, when the laser struck the helicopter, the crew turned their attention and their highly sophisticated thermal camera to a nearby apartment complex. When the laser hit the helicopter again, the crew saw, and the camera captured, a man with a stocky build and big gut who was wearing shorts and a hat and carrying a water bottle. The crew spotted the man on a nearby breezeway, then in the parking lot near a parked car where he opened and shut the car doors. The man walked back into the apartment complex and, shortly thereafter, walked out onto a second-floor apartment balcony.

The helicopter crew directed patrol officers to the location. Two patrol officers spotted Brett Parkins standing on the second-floor apartment balcony indicated by the helicopter crew. The officers walked up the stairs, knocked on the apartment door and spoke with Parkins’ girlfriend. She initially denied that Parkins was home and walked back into the apartment. The door closed, but did not latch, behind her. The officers pushed the door back open but remained outside on the landing. The officers saw a sign near the door stating the occupants had guns. Parkins’ girlfriend returned and said Parkins was getting dressed.

Parkins came to the door and stepped out onto the landing. The officers asked if he had any weapons and he said no. The officers began to check him for weapons. Parkins resisted and tried to go back into his apartment, asking if he was under arrest. An officer pulled Parkins away from the door, then escorted him downstairs to a nearby bench for “a chat.” Parkins repeatedly denied owning a laser or pointing one at the helicopter. When he asked to go back to the apartment or talk to his girlfriend, the officers told him he was detained. The officers moved Parkins a short distance at his request so he was less noticeable to the other residents.

One of the officers went back up the stairs and asked Parkins’ girlfriend for permission to search the apartment for a laser pointer. She consented. Parkins shouted to her, “Don’t let the cops in, and don’t talk to them… talk to them outside…don’t tell them anything.” The officers searched the apartment and found a laser pointer with the name “Brett” etched on it.

The officers arrested Parkins and took him to the department jail. Parkins waived his Miranda rights and spoke with the officers. He initially denied owning a laser pointer, then said he owned one but denied aiming it at any aircraft. The officers never displayed the laser pointer or mentioned having found it in Parkins’ apartment.

Parkins pleaded guilty to aiming a laser at an aircraft, reserving his right to appeal evidentiary issues. He claimed the entry into his apartment was unlawful and that his statements after the Miranda waiver should have been suppressed as fruit of the poisonous tree.

The Supreme Court has held officers cannot search a residence when one physically present resident consents to the search and the other physically present resident objects to the search.

The appellate court considered whether Parkins’ girlfriend’s consent was valid in light of Parkins’ shouted warning to not let the police into the apartment. The Supreme Court has held officers cannot search a residence when one physically present resident consents to the search and the other physically present resident objects to the search. The rule applies only when both the consenting party and the objecting party are physically present at the home (Georgia v. Randolph, 547 U.S. 103 (2006)). The Randolph Court “went to great lengths to make clear that its holding was limited to situations in which the objecting occupant is present.” The federal and state trial and appellate courts were split on whether the Randolph decision applied when police removed an objecting cohabitant from the residence.

The Supreme Court decision in Georgia v. Randolph generated many cases balancing co-residents’—in many nuances of relationships—ability to consent to a search. In Fernandez v. California (571 U.S. 292 (2014)), the Court held that one resident’s objection to a warrantless entry and search does not bar officers from obtaining valid consent for the search from another resident if the officers lawfully remove the objecting resident from the premises. The Court suggested the officers’ motivation for arresting the resident and removing him was not particularly significant unless there was evidence the removal was for the sole purpose of obtaining consent from another resident. “An occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason.”

Considering these Supreme Court decisions, the appellate court ruled, “Parkins must have both been present on the premises and expressly refused consent.” Notwithstanding, “a defendant need not stand at the doorway to count as being physically present – presence on the premises (including its immediate vicinity) is sufficient.” Parkins was within the immediate vicinity of his apartment when he shouted to his girlfriend to not allow officers into the apartment. He was just one flight of stairs and a short walk from his apartment door. The court also held that Parkins expressly refused consent, even though he was shouting to his girlfriend to not let the officers in, rather than shouting to the officers that they could not enter. Thus, his express refusal of consent as a physically present resident rendered the officers’ entry unlawful.

The appellate court did not agree that Parkins’ pre-arrest and post-arrest statements were subject to suppression. Parkins was not subject to custodial interrogation for his pre-arrest statements. His post-arrest statements at the police station followed a valid Miranda waiver. The officers did not show him the laser pointer seized from his apartment and didn’t ask questions about it. Parkins didn’t even know whether the officers had found the laser pointer. His statements were not a product of the unlawful search of his apartment and were admissible.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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