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Silence during request for consent from co-tenant was not an objection under Randolph

By John Wesley Hall, Jr.

Defendant's remaining silent while present and observing co-tenant consent to a police search is hardly an objection under Randolph. Commonwealth v. Ocasio, 2008 Mass. App. LEXIS 207 (February 29, 2008): He argues on appeal that "his refusal of consent [was] obvious from the facts that he knew the police desired to enter the apartment ..., but [he] never signified assent to that action." This approach would extend the holding in Georgia v. Randolph to require active participation by a potential defendant to legitimize the consent granted by a cotenant, an extension directly contradicted by the "fine line," on one side of which a potential objector "not invited to take part in the threshold colloquy, loses out." Ibid. Plaintiff’s claim he was unnecessarily Tasered was not Heck-barred by his guilty plea to resisting arrest...continue to full post

Full post as published by Fourth Amendment on March 03, 2008 (boomark / email).