Decision here.
Police responded to a call of a protection order violation at the Fuerst residence (Fuerst's wife had a protection order which prohibited Fuerst from being there at all). When they arrived, there was no answer at the door. They called Fuerst's wife, who answered the door, told them that both she and Fuerst were present, gave consent for the police to enter, and told them which bedroom Fuerst was in.
The door to that bedroom was locked, but the police were able to disable the lock and gain entry. While they were doing that, Fuerst remained silent in the room. When they entered the room, they found Fuerst there. They also found some guns. Fuerst was arrested for violating the protection order, and when the police learned that he was a convicted felon he was also charged with POWPO.
The trial court ruled that Fuerst's wife had freely and voluntarily consented to the search, but that by remaining silent behind a locked door Fuerst had refused consent. Fuerst's refusal was held to to outweigh Fuerst's wife's consent (like in Randolph), at least as it relates to Fuerst. In other words, incriminating evidence found during the search would only be admissible against Fuerst's wife (who gave consent), but inadmissible against Fuest (who refused consent by hiding behind a locked door). All evidence related to the search (meaning the guns and the officers' observations that Fuerst was actually there) were suppressed.
The prosecution filed an interlocutory appeal.
The Colorado Supreme Court reversed this ridiculous ruling. Applying Randolph and Strimple, the court explained that when two people with authority over the premises are present, then if one of them expressly refuses consent, that refusal prevails over the valid consent given by the other. The key phrase there is expressly refuses.
If the non-consenting party just isn't asked for consent, or doesn't object to the consent given by someone else, that's not a refusal. The court reasoned that requiring officers to try to ask everyone who might have authority to consent would limit their ability to respond to legitimate opportunities in the field. The court also pointed out that Fuerst might not have even been in the room (he could have fled through a window, or his wife could be covering for him while he was in a different room, or he could have been asleep or otherwise unconscious). Whatever the case, Fuerst saying nothing while hiding behind a locked door was not an express refusal, and therefore his wife's valid consent prevails. The suppression order was reversed, and the case was sent back to the trial court.
There's a concurring opinion in this case. Three of the justices would have preferred not to decide whether or not Fuerst's silence constituted an express refusal, and would have held that since Fuerst was restrained from being there he didn't have any authority to give or refuse to give consent, and therefore it didn't matter what he thought (and so his wife's consent would still be enough to justify the search).
