Competing competing consent opinions

The en banc opinion in United States v. Weston, __ M.J. ___, No. NMCCA 200600985 (N-M. Ct. Crim. App. Mar. 31, 2008), is unsatisfying not because Senior Judge Geiser's opinion for the court is deficient -- it isn't; it ably lays out the case for admissibility of the evidence -- but because Senior Judge Rolph and Judge Kelly give us no hint as to why their votes flipped.

The en banc decision is virtually a mirror of the panel decision. Both rely on Georgia v. Randolph, 547 U.S. (2006), to analyze a situation where a husband and wife are both at a law enforcement agency's office where the suspect spouse refuses to give consent to search the home computer while the non-suspect spouse gives such authority unaware that her husband has refused consent. Both decisions rely on "social expectations" to decide the outcome of that scenario. The opinions intuit that social expectation rather than looking to some external source of guidance. How could it be that in the panel decision, two NMCCA judges found that social expectations vindicated the objecting spouse while in the en banc decision, the same two judges found that social expectations vindicated the consenting spouse? We have no idea.

Here's what the panel said:

Of greatest concern is whether the shared social expectations and common understanding of a person at the physical residential threshold would be the same as someone who was not at the front door when competing invitations to enter are communicated. Would a sensible person who is presented with competing invitations away from the shared residence have any confidence that the "invitation was a sufficiently good reason to enter when a fellow tenant" told them to stay out? Randolph, 547 U.S. at 113. If the invitee knew that the non-consenting co-tenant would not or could not be present at the shared residence to enforce his refusal, would shared social expectations and common understanding lead a sensible person to have confidence that the competing invitation is a sufficient reason to enter? We think not.

Now here's what the en banc decision says:

There is no widely-shared social expectation that a reasonable third party, invited into a home by one of the residents, would decline that invitation merely because he or she was aware that an absent co-tenant objected to their presence. While some reasonable people might think better of visiting a residence if they knew an absent co-tenant did not want them, other reasonable people would have no such qualms. Consequently, it cannot be said there exists a widely-shared social expectation that the reasonable invitee would not accept the invitation.

How could two judges join both of those opinions? They give us no idea.

The inevitable discovery portion of the opinion is, if anything, even more frustrating. The panel emphasized the Keystone Kop approach of the investigating CID agents and reasoned that there was nothing inevitable about any ultimate lawful search of the computer. The en banc decision, on the other hand, appears to simply assume that had consent not been given, Agents McGarrett and Williams would have stepped in and everything would have gone smoothly. See Weston, slip op. at 14-15.

The panel reasoned:

[T]he Government's evidence establishes no more than that the seized evidence "could" have been discovered if an alternative procedure had been implemented as part of the investigation. Only speculation can get the Government beyond what "could" have been done and what results "might" have been achieved. Because we must focus on the "demonstrated historical facts capable of ready verification or impeachment," without speculation, Nix, 467 U.S. at 444 n.5, we conclude that the Government did not carry its burden of establishing inevitable discovery by a preponderance of the evidence.

Yet the en banc decision appears to engage in just such speculation when it reasons:

It would be wholly unreasonable to conclude that Agent Stevenson would have simply abandoned her efforts to find and secure the computer in the face of a lack of consent. It is equally unreasonable to conclude she would not have applied her superior knowledge and experience in using the existing and available resources, including the trial counsel, to quickly obtain a search authorization had that, in fact, been necessary.

The fact that, having secured the computer, Agent Stevenson elected to delegate responsibility to her trainee to obtain a warrant to search the contents of the seized computer is of little moment. Tasking a subordinate to obtain a search warrant when the computer evidence is already safe and secure in the CID evidence locker has far less urgency than the situation that would have existed had Mrs. Weston declined to consent to the initial search.

Weston, slip op. at 14-15.

In other words, had Mrs. Weston not consented everything would have been totally different and NMCCA will guess that CID would have gotten a lawful search authorization. Again, how do two judges get from the former view of inevitable discovery to the latter? They don't tell us.

There is some reason to think that perhaps NMCCA's en banc decision won't be the last word.

Senior Judge Geiser's opinion for the court forthrightly observes, "We are cognizant that an objecting, non-present appellant is a case of first impression to our court and to a lesser degree within the federal circuits." Weston, slip op. at 13. Perhaps CAAF will choose to explore this case further to decide whether two of NMCCA's judges were right when they joined the panel decision on 25 September 2007 or when they joined the en banc decision on 31 March 2008.