Georgia v. Randolph and the “present at the scene” requirement for a co-tenant’s objection to a warrantless search to be valid. 

• Consent searches of a residence 
• Use of a laser pointer on aircraft, per 18 U.S.C. § 39A 
• An objecting co-tenant’s physical presence requirement 
• Non-custodial questioning vs. an interrogation 
• Suppression of the products of an illegal search 

When two co-tenants are present at a residence, one of whom consents and the other objects to police officers entering and searching their residence, the objecting co-tenant’s objection takes precedence.  

To be “present,” the objecting co-tenant must be at least within the “immediate vicinity” of the residence. Being within visual (“line-of-sight”) and auditory reach of the residence counts as being within the immediate vicinity. A suspect’s oral admissions will not be suppressed as the product of an illegal search if the suspect was unaware of any evidence that was seized during that search. 

Brett Wayne Parkins (aka: the “laser pointer guy,” to his neighbors), living in a Huntington Beach apartment complex, liked to amuse himself by pointing a laser light at helicopters and other aircraft flying overhead. Over the six months leading up to June 25, 2021, a number police helicopter and commercial aircraft pilots from nearby airports had complained of laser strikes on their aircraft. On the night of June 25, Huntington Beach Police Department Officers Garwood and Vella, flying a HBPD helicopter, were struck by a bright green laser. Turning their highly sophisticated thermal imaging camera toward an apartment complex below — they recalled having been struck by green lasers from this area on previous flights — the officers attempted to locate the source. When a second laser shined upon their helicopter, the thermal camera captured the image of a man with a stocky build and a large stomach, wearing shorts and a hat, walking from the area of the laser source into a nearby apartment breezeway where he disappeared. When hit by a third laser strike, the same form appeared. The officers were able to follow his movements for several minutes, ending on a second-floor balcony attached to a specific apartment. Believing this man to be responsible for the laser attacks, Officer Garwood obtained the assistance of patrol officers on the ground.  

As guided by Officer Garwood, two patrol officers arrived at the apartment complex and spotted Parkins standing on a second-floor apartment balcony. At the front door of that apartment, the officers contacted a woman — soon determined to be Parkins’ girlfriend — when she answered the door. She claimed that Parkins was not home, until  officers told her they had just seen him on the balcony. When told they needed to speak with him about shining a laser at the police helicopter, she disappeared into the apartment to get him. Parkins eventually came to the door and stepped outside with the officers. He then attempted to retreat back into his apartment when the officers tried to pat him down for weapons. Parkins asked if he was under arrest and the officers told him he was not, but that they were going to escort him downstairs for a “chat.”  

The officers took him to a nearby bench, and a third officer arrived. When questioned about the laser incident, Parkins denied owning or using a laser pointer, repeatedly asking to be allowed to return to his apartment, or to at least see his girlfriend. Eventually, at his request, the officers moved him to a set of mailboxes bordering a parking lot where he would be less exposed to gawking neighbors. At this point, he was one flight of stairs and one short walkway, about 20 feet, from the entrance to his unit. It was noted, however, that he was within hearing distance and “line of sight” of his apartment.  

Two officers remained with Parkins as the third returned to the apartment to ask the girlfriend for permission to come in and search for a laser pointer. She agreed. As the girlfriend was executing the form, Parkins yelled up at her: “Don’t let the cops in and don’t talk to them.” It was undisputed that she could hear him. A minute later, he yelled up at her again: “Don’t talk to them, talk to them outside,” followed by “Don't tell them anything.” Parkins was handcuffed, removed from the mailbox area and placed in a squad car because, as noted by one of the officers, he was “running [his] mouth” and “obstruct[ing] the investigation.”  

To this point, before being put into the patrol car, Parkins had been detained outside for roughly 20 minutes. The resulting search turned up a laser pointer with the name “Brett” conveniently etched on it. Without being told that they’d found his laser pointer, Parkins was transported to the police department, where the helicopter crew took over. After waiving his Miranda rights, Parkins continued to deny owning a laser pointer, still not knowing that his personally monogramed laser pointer had been found in his apartment. He eventually admitted to having one, but continued to deny pointing it at the officers’ helicopter.  

A federal grand jury indicted Parkins for one count of aiming a laser pointer at an aircraft, in violation of?; a five-year federal felony offense.  Defendant’s motions to suppress the laser pointer itself and his resulting admission that he owned a laser pointer were both denied.  He thereafter pled guilty and was sentenced to eight months in prison to be followed by three years of supervised release.  Defendant appealed.18 U.S.C. § 39A, a five-year federal felony offense. Parkins’ motions to suppress the laser pointer and his admission that he owned one were both denied. He thereafter pleaded guilty and was sentenced to eight months in prison, to be followed by three years of supervised release. He appealed. 

The Ninth Circuit Court of Appeal reversed in part and affirmed in part.  

The primary issue on appeal was the applicability, if any, of the U.S. Supreme Court decision of Georgia v. Randolph (2006) 547 U.S. 103, which reversed existing California state case law. The U.S. Supreme Court ruled in Randolph that when two co-tenants of a residence — when both are present at the scene — are asked by the police for consent to enter their residence and search, and one says “yes” but the other says “no,” the “no” takes precedence. The first, and most important, issue in this case was whether Parkins — while about 20 feet away — was “present,” as the term is used in Randolph, when he told his girlfriend not to let the police into their apartment. A secondary but related issue was whether Parkins had effectively refused the officers permission to enter and search.  

Defendant’s Presence at the Scene: The federal district (trial) court had held both that Parkins was not “present,” as the officers had lawfully removed him from the doorway, and that he did not “expressly” refuse to give consent, but rather merely instructed his girlfriend not to permit the officers to enter and search their apartment. The Ninth Circuit ruled that the district court was wrong on both points.  

As to whether he was “present” at his apartment, the rule is as follows: As between two co-tenants, ‘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.’ (United States v. Matlock (1974) 415 U.S. 164, 170.) However, if either present co-tenant objects, then entering and searching the residence is illegal. (Georgia v. Randolph, supra.)  

First, it is only necessary that the police “reasonably believe” that the person giving consent has the authority to do so. (Illinois v. Rodriguez (1990) 497 U.S. 177, 188-189.) That Parkins’ girlfriend in this case had the apparent authority to consent to the officers’ entry and search of their apartment was not an issue. The primary issue was whether Parkins was “physically present” when the facts show he was some 20 feet from the doorway.  

The Court held here that the words as used in Randolph (i.e.; “at the door”) should not be taken too literally. In fact, the U.S. Supreme Court has held that “physical presence is not limited to the doorway, but merely ‘requires presence on the premises to be searched.’” (Fernandez v. California (2014) 571 U.S. 292, 306.) To be present, the objecting party needs to be in the “immediate vicinity” of the front door. (Bailey v. United States (2013) 568 U.S. 186, 192-202.) See also Matlock, supra, where it was noted that the defendant was not present when he “was...‘restrained in a squad car a distance from the home.’” (pg. 179.)  

The defendant in the instant case was but 20 feet away, within visual and oral contact with those at his front door. For purposes of the Randolph rule, the court held here that this was close enough, and that he was therefore “physically present.”  

Legal Sufficiency of the Defendant’s Objection to Officers Searching his Apartment: The secondary issue here was whether Parkins did in fact object to the officers searching his apartment. The district court held that he did not. Again, the Ninth Circuit disagreed. In Randolph, the High Court ruled that “a warrantless search of a shared dwelling cannot be justified ‘over the express refusal of consent by a physically present resident.’” In this case, Parkins never specifically told the officers that he was objecting to the search. What he did do was yell to his girlfriend orders not to give the officers consent and to only speak to them while outside. As noted by the court, “‘[I]mplicit refusals’ are insufficient...But both words and actions can constitute an express refusal to grant the police entry.”?(Citing Bonivert v. City of Clarkston (9th Cir. 2018) 883 F.3rd 865, 875.)  

Although Parkins never specifically told the officers they could not search his apartment, the court held that his statement to his girlfriend not to let the police in sufficiently conveyed his objection. The “express objection” requirement was therefore sufficiently satisfied. 

Miranda Issues: A Miranda admonishment and waiver are only necessary when all three of the following elements are present: (1) in custody, (2) in an interrogation, (3) conducted by law enforcement. Parkins objected to the trial use of any admissions he might have made both before and after his arrest.  

Pre-Arrest Interrogation: Pre-arrest (i.e., during the first 20 minutes of his detention, outside his apartment), Parkins was asked questions concerning his alleged use of a laser pointer and whether he owned one, which resulted in denials. Therefore, there was nothing said that the prosecution was likely going to try to use at trial as an “admission” unless his lie about not owning one became relevant. (Note that Parkins was also held in a patrol car for an additional 30 minutes, but was not asked any questions during that time.)  

During this initial 20 minutes of detention, it was noted that “the officers conducted themselves in a manner that was professional and unabusive — even friendly at times.” After Parkins initially denied using, or even possessing, a laser pointer, there were no more questions asked of him. Any further conversation between the officers and the defendant was typically initiated by Parkins.  

The issue became, therefore, whether Parkins was even interrogated, as one of the three elements as a prerequisite to a Miranda admonishment. By legal definition, an “(i)nterrogation ‘refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from?the suspect.’” (Rhode Island v. Innis (1980) 446 U.S. 291, 301,) “‘[I]nterrogation ‘must reflect a measure of compulsion above and beyond that inherent in custody itself.’” (Bradford v. Davis (9th Cir. 2019) 923 F.3rd 599, 618.)”  

Under the circumstances of this case, the Ninth Circuit held that no interrogation — as that term is legally defined — took place after Parkins’ initial denials. As such, no Miranda admonishment was legally required. Also note that defendant made no admissions during this initial questioning, thus making this a moot issue. The court also does not discuss whether he was in “Miranda custody” during this initial 20 minutes. Legally speaking, custody does not occur until: “(h)e has been formally arrested, or there exists a restraint on freedom of movement of the degree associated with a formal arrest.” (California v. Beheler (1983) 463 U.S. 1121, 1125.) Put in simpler terms, “Miranda custody” is when a suspect would reasonably believe, under objective circumstances, that he is either under arrest, or he is about to be arrested. With Parkins specifically being told that he was not under arrest, and that he was only being detained, it is extremely questionable that until finally handcuffed — 20 minutes after this initial questioning — that he was in custody for purposes of Miranda.) 

Post-Arrest Interrogation and the Fourth Amendment: After being arrested and transported to the police station, Parkins was Mirandized and questioned. After waiving his rights, he admitted to owning a laser pointer (an “admission” that is admissible against him at trial), even though he continued to deny using it on the officers’ helicopter. This admission, as the product of an interrogation following a Miranda admonishment and waiver, was admissible absent a finding that it was the product of an unlawful search or arrest. Parkins therefore argued that this admission should have been suppressed as the product of (1) an unlawful search of his apartment and/or (2) his unlawful arrest.  

The court rejected both arguments, noting that he was never told a laser pointer had been found in his apartment. Secondly, he was lawfully arrested, as the officers had “ample probable cause to arrest” him. As for not being told a laser pointer had been recovered from his apartment, he could not have been motivated to say that he did in fact own a laser pointer by the illegal search of his apartment and the recovery of the laser pointer. Even if we ignore the fact that the officers found a laser pointer during an illegal search, the court ruled that based upon the observations of the helicopter pilots as memorialized by the helicopter’s thermal camera, plus other admissible evidence connecting defendant to the being “the laser pointer guy,” probable cause existed to arrest him. As for the probable cause to arrest him, Parkins’ admission to owning a laser pointer cannot be said to have been the product of an unlawful arrest.  

Conclusion 

The court therefore returned the matter to the trial court for a determination of whether the U.S. attorney wished to take the case to trial without the laser pointer itself, since it had been ruled as inadmissible. 

The only thing that was suppressed is the laser pointer itself, as the product of a slight expansion of the Rudolph Rule as we always understood it. I would imagine that this case is still triable, however, even without the laser pointer. With the pilot/officers’ testimony tracking Parkins to his apartment, his admission to owning a laser pointer, and other evidence (not described) from neighbors who knew him as “the laser pointer guy,” I’m guessing there still remains plenty of evidence with which to obtain a conviction.  

The importance of this case, however, is in its discussions about how far away from this front door a suspect can be for his objection to a warrantless search of his residence to still prevail over a co-tenant’s consent under Georgia v. Randolph. Per the Ninth Circuit as the Court ruled in this case, within view (“line of sight”) and hearing distance of the subject’s front door is close enough, although this is still a pretty vague test.  

If you wonder whether the officers should have moved defendant further away, note that there’s case law holding that if you move him away from the scene without some valid legal reason for doing so, but rather for the purpose of avoiding the rule of Georgia v. Randolph, then it doesn’t count.  

The only advice I can provide is that when in doubt as to whether a co-tenant’s objection to search a residence takes precedence over another co-tenant’s consent, get a warrant. This eliminates the issue and will save you a lot of time sitting in a courtroom hallway waiting to testify, and the appellate attorneys (on both sides) untold hours and money in litigating the issue. If you still wish to push the envelope, however, that’s fine with me. It gives me neat cases like this one to talk about how you screwed it up.