A Randolph sequel?

United States v. Weston, __ M.J. ___, No. 08-0594/MC (C.A.A.F. June 11, 2009).

This is another of those competing consent/no consent cases.

As is typical, the accused is held at NCIS and denies a consent to search his home. The enterprising agents rush of to the next room and get wifey to consent. As usual they don’t tell wifey that the accused has not consented to a search, they’ve kept him incommunicado from wifey, and taken his cell phone away as he was trying to call a lawyer. This same lawyer later talked to wifey who – too late – withdrew her consent. CAAFLog has this comment on the potential next step in the case.

The majority considers and rejects the Ninth Circuit’s approach, which might lead to a different result. See United States v. Murphy, 516 F.3d 1117, 1123-24 (9th Cir. 2008). The majority instead follows the Seventh and Eighth Circuits’ approach. So it looks like SSgt Weston will have a pretty strong cert petition asking the Supremes to resolve a split among the circuits. See Weston, slip op. at 10. Surprisingly, it doesn’t appear that the Solicitor General sought cert in Murphy. So SCOTUS could use Weston as a proxy to engage in one of the Court’s favorite indoor activities — reversing the Ninth Circuit.

It seems to me that when you have two competing interests the one most protective of the Fourth Amendment should be the decision that is followed and respected, not the one that is least protective of the Fourth Amendment. To hold otherwise is to devalue into nothing the Fourth Amendment. King George must be laughing in his grave.

Two members of the court found that the evidence was admissible under a theory of inevitable discovery. This is itself a troubling conclusion as one commentator on CAAFLog has pointed out. Under such a theory, so long as law enforcement had probable cause and could have got a warrant they don’t need to get a warrant. Another devaluing of the warrant requirement.