Petition for Rehearing Denied January 21, 2020
Certiorari to the Colorado Court of Appeals, Court of Appeals
Case No. 14CA1547
Attorneys for Petitioner: Megan A. Ring, Public Defender,
Andrea R. Gammell, Deputy Public Defender, Denver, Colorado
for Respondent: Philip J. Weiser, Attorney General, Rebecca
A. Adams, Senior Assistant Attorney General, Denver, Colorado
It is axiomatic that consent by someone who possesses common
authority over jointly occupied premises generally suffices
to justify a warrantless search. But in Georgia v.
Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208
(2006), the Supreme Court carved out a narrow exception to
this rule: Consent by one resident is insufficient
when another resident is physically present and objects to
the search. Id. at 122-23, 126 S.Ct.
1515. The Court in Randolph drew a fine line for the
sake of clarity, practicality, and administrability: If a
resident is present at the threshold of the premises and
objects as officers propose to conduct a search, a
co-occupants consent does not suffice; however, if the
objecting resident does not take part in the threshold
colloquy between the officers and his co-occupant, he
"loses out." Id. at 121, 126 S.Ct. 1515.
Adhering to this deliberately formalistic rule, in
Fernandez v. California, 571 U.S. 292, 134 S.Ct.
1126, 188 L.Ed.2d 25 (2014), the Court declined to apply the
Randolph exception where the defendant was initially
present and objected to the police entering his apartment but
neither was present nor objected approximately an hour later
when his co-occupant consented to a search. Id. at
294-96, 134 S.Ct. 1126.
This case is the flip side of the Fernandez coin.
Whereas Fernandez dealt with a defendant who
objected before his co-occupant and officers engaged
in the colloquy regarding consent, we deal here with a
defendant who did not object until after his
co-occupant had already provided officers consent and they
were inside his residence.
We reach the same result the Court did in Fernandez
and conclude that the Randolph exception does not
apply and that the police officers who entered Kirk Thomas
Williamss home did not violate his rights under the Fourth
Amendment. Leonora Williams, Mr. Williamss wife, provided
the officers consent and permitted them to enter so that they
could take possession of drugs and drug paraphernalia she had
found in his travel bag and concealed in the garage. Although
Mr. Williams was physically present on the premises, he did
not object as his wife allowed the officers inside. His
subsequent objection, after the officers had already entered
his home and were in the process of taking possession of the
drugs and paraphernalia, could not vitiate her previously
given consent. Therefore, the officers were not required to
heed his request to leave.
The court of appeals correctly upheld the district courts
ruling denying Mr. Williamss motion to suppress the evidence
collected inside his home. But it did so for different
reasons than those we articulate in this opinion. Therefore,
we affirm its judgment on other grounds.
After Mr. Williams returned home from a trip to North Dakota,
his wife went through his overnight travel bag and discovered
what she believed to be drugs and paraphernalia. She took the
contraband items, placed them inside a soap dish, and hid the
soap dish in the garage of their home. Mrs. Williams later
called the Fort Collins Police Department and met with one of
its officers, Officer Thomas Colvin, at her church. She told
him that she wanted the police to collect the drugs and
paraphernalia she had taken from her husbands travel bag and
stored in the garage. Officer Colvin requested assistance,
and Officers Jesse Reed and Stephan Sparacio responded. The
three officers then accompanied Mrs. Williams home.
Upon arriving home, Mrs. Williams provided consent and
allowed the officers to enter so they could take possession
of the drugs and paraphernalia. At Mrs. Williamss request,
Officer Reed followed her through the house to the garage.
There, Mrs. Williams retrieved the soap dish she had stashed
away and handed it to him. Meanwhile, Officer Colvin
continued walking down the entrance hallway for about ten
feet, at which point he saw the kitchen, the living room, and
an open space dividing the two. He headed toward the living
room because he saw Mr. Williams there, sitting on a couch,
eating a bowl of cereal, and watching television.
Officer Colvin viewed his job as keeping the peace between
Mr. and Mrs. Williams. Similarly, Officer Sparacio focused on
making sure the situation remained calm and safe. The
officers were concerned because Mr. and Mrs. Williams were
both home and
there seemed to be some conflict between them.
When Officer Colvin entered the living room, he advised Mr.
Williams that officers were conducting a "civil
standby" and told him to remain seated. At some
point, Mr. Williams told the officers to leave his home.
Shortly after Officers Colvin and Sparacio contacted Mr.
Williams, Mrs. Williams and Officer Reed returned from the
garage. Officer Reed handed Officer Colvin the soap dish Mrs.
Williams had retrieved. Upon opening it, Officer Colvin
discovered it contained methamphetamine and a glass pipe. The
officers arrested Mr. Williams, removed him from the
residence, and placed him in a patrol car. Officer Colvin
estimated that "within five minutes, things were pretty
Following a pretrial suppression hearing, the district court
issued a written order denying Mr. Williamss request to
exclude the methamphetamine and the pipe from the trial. A
jury subsequently found Mr. Williams guilty of possession of
more than two grams of methamphetamine, a level 4 drug
felony. The district court then sentenced Mr. Williams to one
year in community corrections. Mr. Williams appealed, and a
division of the court of appeals affirmed.
As relevant here, a majority of the division agreed with the
district courts determination that the search that yielded
the methamphetamine and the pipe was not a search within the
meaning of the Fourth Amendment because Mrs. Williams had a
legitimate interest in removing the contraband from her home,
acted on her own initiative and not as an agent of the state,
and the officers actions did not exceed the scope of her
private search. People v. Williams, No. 14CA1547,
2017 WL 61171, ¶¶ 15-16 (Jan. 5, 2017). The division majority
felt it was unclear whether the exception in
Randolph applied because Mr. Williams asked the
officers to leave after they were already inside the
house pursuant to his wifes consent. Id. at ¶ 17.
But since it concluded that the officers entered the
residence with Mrs. Williamss consent, did not conduct a
search inside the house, and the methamphetamine and the pipe
were fruits of Mrs. Williamss private search and not subject
to the exclusionary rule, it reasoned that it did not have to
resolve the Randolph question. Id. at ¶¶
17-18. Writing separately, Judge Berger expressed concern
about the soundness of the majoritys analysis but
nevertheless concurred in the judgment. Id. at ¶ 25
(Berger, J., specially concurring).
Mr. Williams then filed a petition for certiorari review, and
we granted the petition in part.
Before us, Mr. Williams advances three contentions: (1) the
division erred in holding that no search implicating the
Fourth Amendment occurred; (2) under Randolph, his
objection was dispositive as to him, regardless of his wifes
consent, and therefore the officers were not authorized to
remain in his residence when he asked them to leave; and (3)
the inevitable discovery exception to the exclusionary rule