You might recall a news item from 2021 when a laser pointer was aimed at a Huntington Beach Police Department helicopter investigating a fatal hit and run accident. These types of dangerous pranks are not new to police department arial surveillance and investigations. In this case, the police were able to capture an image of the man pointing the laser by utilizing the helicopter’s thermal camera. The officers in the helicopter called in for an on-the-ground police response to investigate.

Patrol officers responded to the apartment building where the image of the laser pointing suspect was located and identified a man they believed to be the suspect standing on a balcony of a second floor apartment. When the police contacted a resident inside that apartment, a woman, they determined that she lived there with her boyfriend, who police believed was the suspect. After that encounter, the suspect appeared and stepped outside the apartment onto the landing. The officers led the suspect downstairs where they spoke with the suspect. The officers detained the suspect and handcuffed him to a mailbox.

While speaking with the suspect, another officer went back to the apartment and asked the suspect’s girlfriend if they could search the apartment for a laser pointer. She consented. As she was signing the consent form, the suspect yelled up to his girlfriend to not let the police in or talk to them. He also yelled that she should talk to the police outside There was no dispute that the officers and the suspect’s girlfriend heard the suspect.  The officers searched the apartment and found a laser pointer with the suspect’s name etched on it. The suspect was arrested.

The suspect’s attorney was on-the-ball and filed a motion to suppress the laser pointer evidence because he did not consent to the search even though the suspects co-tenant, his girlfriend, did consent. Previous case law suggested that when one co-tenant consents to a search and another does not, the lack of consent is only valid if the objection is made at the doorway, i.e., physically present at the location of the search. The trial court denied the motion to suppress on these grounds. The district court agreed with the trial court upon appeal.

The case was then taken to the federal court. The Ninth Circuit Court of Appeals carefully analyzed case precedents and determined that the suspects objection to the search was valid. Even though he was not at the doorway, he was in such close proximity to the apartment as to be “physically present.”

While, in this case, the Ninth Circuit made a ruling that still left the defendant on the hook for some incriminating post-arrests statements he made, the court did reverse the district court and found the search was unlawful and in violation of the defendant’s Fourth Amendment rights.

What is the upshot? In a case where one or more residents of a residential dwelling consents to a search, but one or more other residents do not consent, the objection to the search is valid as long as that objection is made by an inhabitant who is physically present to object. “Physically present” can mean within earshot or eyesight. The objection to the search will take precedence over the consent.

The United States and California Constitutions protect you from unreasonable search and seizure. When those rights are violated, your best defense may be a motion to suppress the evidence. One of the first things Orange County criminal defense attorney William Weinberg considers when reviewing a case is whether there was a potential violation of the client’s rights, thus warranting a motion to suppress the evidence. Often, when such a motion is granted by the court, the case ends up dismissed because crucial evidence is excluded.

Mr. Weinberg is available for a complimentary consultation to review your case where he will offer you what he thinks is your best defense. You may reach him at his Irvine office at 949-474-8008 or by emailing him at