Fourth Amendment Rights
Without a warrant, the police cannot search a home under the Fourth Amendment unless there is an applicable exception. Consent given by the homeowner or someone authorized to allow a search is a significant exemption to the need for a warrant.
The person granting consent does not require complete property ownership to permit the police to search a specific area.
For instance, a housemate can permit a search that includes the sections of the property they have authority over, such as living rooms, kitchens, bathrooms, et cetera. If individuals lack access to areas belonging to their roommates, such as lockers, drawers, bedrooms, or personal-use office spaces, they cannot agree to a search of those areas. Courts consider the relationship and agreement between the roommates to determine the extent to which the police were allowed to search the residence. If the roommates were in a romantic relationship, it would be reasonable to search the entire residence based on the assumption that both partners had equal access to all areas of the home. If several roommates are there but not everyone agrees, the police might be unable to search.
The Search May Be Legal, But it Depends
Suppose someone the suspect lives with, like a roommate, spouse, or partner, agrees to a search while the suspect is not present. This search uncovers evidence that incriminates the suspect. In that case, the search will probably be considered legal unless the suspect can prove that the police had no reasonable basis to believe that the person who consented had the right to authorize the search in the specific area.
Likewise, the primary occupant of a house has the right to give permission, but this does not extend to areas within the house that are under the control of a guest and are not accessible to the primary occupant. A host has no authority to authorize the search of a guest’s personal belongings while they are on the premises. Additionally, an individual who is a guest, even if they do not reside in the place, has the authority to provide consent for the search of areas they have control over. However, their consent to search is not valid for areas under the control of the primary resident or other areas they are not authorized to access. It can sometimes be challenging to ascertain the authority over specific areas or whether an individual possesses complete access to an entire property. If it were reasonable to believe that the person granting consent had access to the searched areas, the police would be presumed to be acting in good faith.
Preventative Measures: Scheduling a House Meeting
Ensure that everyone in your household is aligned with each other when dealing with the authorities. Include the following key points:
- You don’t have to answer the door for the police unless they have a warrant.
- If you decide to open the door, go outside, talk to the police, and remember to close the door afterward. In this way, the police cannot observe the activities inside the house and identify items such as a bong or a pipe that could provide grounds for a search without a warrant.
- Always refuse if the police request to conduct a search. If someone asks without a warrant, they probably don’t have one and may be unable to obtain it.
If you find yourself in trouble due to possessions discovered in your shared living area, use your intelligence: Remain silent. Deny everything. Don’t attempt to use words to avoid facing the consequences. Consult with a seasoned defense lawyer instead. Consulting your attorney will help you understand your legal rights and choices and assess whether any evidence from the search can be excluded in court. If necessary, a criminal defense attorney can also serve as your representative in the courtroom.
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Withdrawing Consent to a Search
If you want to withdraw your consent to a search, you must clearly indicate your intent. This can be done through a clear, unambiguous statement or a physical action. Mere expressions of disapproval or inconvenience will not be enough to stop the search. However, it is essential to note that physical actions can lead to legal trouble, and it is generally best to use words to withdraw consent.
Although physical actions can sometimes indicate consent withdrawal, all courts may not consider this sufficient. Examples of physical actions include pushing an officer’s hands away, blocking their hands, retrieving the item being searched, or blocking their path. However, using force against an officer can result in arrest and even the use of force by the officer. Therefore, using words to withdraw consent rather than physical actions is generally recommended.
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Seppi Esfandi is an Expert Attorney who has over 22 years of practice defending a variety of cases.
