Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 04 CR 697-Robert W. Gettleman, Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge
Before MANION, ROVNER, and SYKES, Circuit Judges.
Police were called to the home of Patricia and Kevin Henderson on the southwest side of Chicago to investigate a report of domestic abuse. At the scene officers met Patricia Henderson standing on the front lawn; she told them her husband, Kevin, had choked her and thrown her out of the house. She also warned that Kevin had weapons in the house and had a history of drug and gun arrests. Using a key provided by the Hendersons' teenage son, officers entered the home and encountered Kevin Henderson inside. In unequivocal terms, he ordered them out. The officers then arrested Henderson for domestic battery and took him to jail.
After Henderson's arrest and removal from the scene, Patricia signed a consent-to-search form and led the police on a search that uncovered several firearms, crack cocaine, and items indicative of drug dealing. Henderson was indicted on federal weapon and drug charges. He moved to suppress the evidence recovered from his home, arguing the search was unreasonable under the Fourth Amendment based on the Supreme Court's decision in Georgia v. Randolph, 547 U.S. 103 (2006). The district court agreed, holding that Henderson's prior objection trumped Patricia's subsequent consent even though he was no longer present and objecting when she consented. The government now appeals the court's suppression order.
We reverse. Randolph left the bulk of third-party consent law in place; its holding applies only when the defendant is both present and objects to the search of his home. Although Henderson was initially at home and objected to the presence of the police when they arrived, his objection lost its force when he was validly arrested and taken to jail for domestic battery. At that point Patricia was free to consent to a search notwithstanding Henderson's prior objection; we do not read Randolph as permanently disabling her shared authority to consent to an evidentiary search of her home. Patricia's subsequent consent, freely given when Henderson was no longer present and objecting, rendered the warrantless search of their home reasonable and valid as to him.
On a late November morning in 2003, Chicago police officers responded to a report of domestic abuse at the home of Patricia and Kevin Henderson on the southwest side of the city. At the scene officers found Patricia standing with a neighbor on the front lawn of her home. She told the officers that Henderson had choked her and then threw her out of the house after learning she had called 911. Patricia had noticeable red marks around her neck that substantiated her story.
The Hendersons' teenage son arrived shortly after the police and gave them a key to the home. Before the police entered, Patricia told them that Henderson had weapons in the house and had a history of drug and gun arrests. Patricia said she was willing to file a complaint against Henderson and wanted him arrested. The parties dispute whether or not Patricia also told the officers, prior to their entering the house, that she wanted the house searched.
The police used the key to enter the house and found Henderson in the living room. After a brief exchange, Henderson told the officers to "[g]et the [expletive] out of my house"-which the district court reasonably construed as an objection to a search. Henderson was then arrested for domestic battery and taken to the police station. Patricia was still outside and did not observe Henderson's encounter with the police. A few minutes after Henderson was taken to the station, Patricia agreed to a search of the home and signed a consent form.
Patricia led the officers to the attic where they discovered crack cocaine and drug-dealing paraphernalia, four handguns, a shotgun, a rifle, a machine gun, and live rounds of ammunition. In the basement they found a machete, a crossbow, and more ammunition, as well as an M-1000 explosive device. Patricia suggested that the officers also search the family car, and she signed another consent form. This search uncovered additional crack cocaine.
Henderson was charged with possession of crack cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), various firearms-related offenses in violation of 18 U.S.C. §§ 922 and 924, and possession of an explosive device in violation of 26 U.S.C. § 5861(d). Henderson moved to suppress the evidence obtained from the search of the house and car, arguing that the Supreme Court's decision in Randolph required suppression because he was a present and objecting resident whose express refusal to allow a search overrode Patricia's later consent. The district court agreed as to the search of the house and suppressed the evidence recovered in that search. The government appealed.*fn1
A. Appellate Jurisdiction
Henderson moved to dismiss the government's appeal for lack of appellate jurisdiction. In a criminal case, the United States may appeal "a decision or order of a district court suppressing or excluding evidence" so long as the appeal is "taken within thirty days after the decision, judgment or order has been rendered." 18 U.S.C. § 3731. The district court announced its decision orally on June 26, 2006, and the government did not file this appeal until December 29. It did, however, move the district court to reconsider its order on July ...