3.2Investigating Cases Involving Domestic Violence

When police officers respond to a domestic dispute, they are obligated to investigate potential domestic violence. City of Westland v Kodlowski, 298 Mich App 647, 669 (2012), vacated in part on other grounds, rev’d in part on other grounds 495 Mich 871, 871-872 (2013).¹ “While a co-occupant may invalidate another co-occupant’s consent in cases where the police are entering to search for evidence, a co-occupant’s withdrawal of his [or her] consent to the presence of the police does not preclude officers from continuing to investigate cases of potential domestic violence.” Id. at 667-668, citing Randolph, 547 US at 118-119. In Kodlowski, 298 Mich App at 668, the police arrived at the defendant’s residence in response to a domestic dispute. After receiving consent from the defendant and the complainant, the police entered the residence to assist the complainant in locating her cellular telephone. Id. Later, the defendant revoked his consent by asking the police to leave the residence. Id. at 669. The defendant argued that the police officers violated his Fourth Amendment rights by staying at his residence after he revoked his consent to their presence. Id. The Court of Appeals held that the “defendant’s decision to revoke his consent did not render the officers’ presence unlawful” because the officers were there in response to a domestic dispute and not to search for evidence. Id.

A warrantless search of a shared dwelling conducted pursuant to the consent of one co-occupant when a second co-occupant is present and expressly refuses to consent to the search is unreasonable and invalid as to the co-occupant who refused consent.² Georgia v Randolph, 547 US 103, 120 (2006). Randolph is “limited to situations in which the objecting occupant is physically present” and does not apply “if the objecting occupant is absent when another occupant consents.” Fernandez v California, 571 US 292, 294 (2014). “[A]n occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason.” Id. at 294, 303 (motion to suppress incriminating evidence found in apartment properly denied where “consent [to search] was provided by an abused woman well after [the defendant,] her male partner[,] had been removed from the apartment they shared”). Moreover, the United States Supreme Court specifically emphasized that its ruling in Randolph, 547 US at 118, regarding a co-occupant’s ability to invalidate the consent of a co-occupant “has no bearing on the capacity of the police to protect domestic victims.” Specifically, the Court noted:

“[T]h[e] [Randolph] case has no bearing on the capacity of the police to protect domestic victims. The dissent’s argument rests on the failure to distinguish two different issues: when the police may enter without committing a trespass, and when the police may enter to search for evidence. No question has been raised, or reasonably could be, about the authority of the police to enter a dwelling to protect a resident from domestic violence; so long as they have good reason to believe such a threat exists, it would be silly to suggest that the police would commit a tort by entering, say, to give a complaining tenant the opportunity to collect belongings and get out safely, or to determine whether violence (or threat of violence) has just occurred or is about to (or soon will) occur, however much a spouse or other co-tenant objected. . . . Thus, the question whether the police might lawfully enter over objection in order to provide any protection that might be reasonable is easily answered yes.” Randolph, 547 US at 118.