Wife Can’t Consent to Search Where Husband Objects

An estranged and allegedly battered wife cannot consent to the search of the family residence when the husband objects and demands that law enforcement obtain a search warrant.

On May 29th, the Iowa Court of Appeals in State v. Jackie Brandon followed the United States Supreme Court's decision in Georgia v. Randolph in holding that the consent to search by one occupant of a residence could not override a specific refusal to consent of another occupant or owner who is present on the property to be searched. According to Justice Zimmer, Mr. Brandon's inquiry of the officers as to whether or not they had a search warrant was a sufficient challenge to the officers authority to remain in the residence. Their subsequent actions in placing Mr. Brandon under arrest and removing him from the residence clearly established that any further objection or inquiry regarding the need for a search warrant would have been futile. Thus, Mr. Brandon's question as to whether or not the officer's had a search warrant was sufficient to establish that he objected to the search of his residence.

It is important to note however that in different circumstances, a mere question as to whether or not a search warrant was obtained may not always be sufficient to establish the "express refusal of consent" required by Georgia v. Randolph. When law enforcement seeks to conduct a search and a person wants to voice an objection, using manners and being polite is not necessarily advised. The individual should be clear and forceful with the language used to express their objection to the search. While physical resistance is unacceptable, a profanity laced objection never fails to get the point across.

In conclusion, probably the best part of the Court of Appeals decision in Brandon is the fact that one of the officers was caught lying and the Court of Appeals felt it important enough to note and publish. Often times these "misstatements" by law enforcement get swept under the rug. Not this time. Justice Zimmer stated: "Deputy Alan Johannes testified at the suppression hearing. Initially he testified that the defendant was in jail when Terri gave her consent to search the Brandon's home. However, after being shown documents that clearly revealed the defendant was not in custody, the deputy recalled that Brandon was present in the living room of his home when deputies arrived to conduct a search."

The full opinion can be found at http://www.judicial.state.ia.us/court_of_appeals/Recent_Opinions/20080529/8-243.pdf