Who Can Let the Police Search Your Home?
The Fourth Amendment of the US Constitution protects us from unreasonable search and seizure by law enforcement. What this typically means in the eyes of the court, is that the police need to have a search warrant supported by probable cause to believe a crime is present. If they do happen to find evidence of a crime resulting from an unreasonable search, then the evidence should be ruled inadmissible.
However, police can bypass this need if they get consent to search the property from someone who appears to have the authority to allow them to search. This is fairly straightforward if the person who answers the door is both a homeowner and primary resident of the property, but many people are in trickier living situations. In this article we will explore different relationships to a property a person can have and whether that makes their consent to search legitimate.
Who is Considered a Legitimate Authority to Give Consent?
A person’s consent to search is legitimate if they have normal access or authority over the property. You can probably see how this could be complicated in situations with competing authority, such as a tenant vs. landlord, or people with regular but conditional or restricted access, such as a housekeeper or regular guest. Below are various relationships a person can have to a property and how they should be regarded in this context.
A resident is generally considered a person living somewhere on a long-term basis, but may or may not own the property. A resident is considered a legitimate source of consent to search, but there are caveats.
The first caveat is that a resident could have restricted access to only parts of the property. For example, a roommate can give consent to search a home’s shared space and their own bedroom, but can’t provide legitimate authorization for the police to search another roommate’s bedroom.
Following from this example, another caveat is that if a resident has a guest temporarily, that resident does not have proper authorization to allow the police to search the guest’s belongings.
In either case, it should be clearly argued that the resident did not have authority over such belongings or sections of the property. For example, if there was a bag that had a guest’s name tag on it, only that guest should be able to give consent to search it. On the other hand, if the police find drugs in plain view in a shared space, you’re unlikely to get away from saying it’s the guest’s to avoid them taking it.
While we went over how a guest should be the only person to offer consent for their own belonging or a room they’re staying in, what about the areas they have joint access to? Generally, if somebody doesn’t live in the home but has joint access or control over parts of it, they can give consent to search those parts.
Whether a guest has normal access and authority over parts of the house should depend on their relationship and agreement with the resident. For example, a guest who was invited over for a dinner shouldn’t be considered an authority over your home. On the other hand, a guest staying with you for a week and sharing common space with you does have some limited authority.
Whether landlords can give consent to search a tenant’s home gets into a complicated area of landlord-tenant law, which deserves an article of its own. For the purposes of this question, a landlord’s consent typically isn’t enough to let the police search a resident’s home. A landlord can offer consent to search parts of a property that the tenant has no authority over, such as the hallways in an apartment building. Also, if a tenant has been legally evicted but was still there, the landlord should be able to give consent to search.
The topic of children’s authority to give consent is a complicated matter when it comes to searches. To determine if a child’s consent is valid, the court should factor in their age, their use of the premises, the authority they had over the home at the time of the search, and more.
For example, if a teen gives consent to search a home when his or her parents are out of town and did not show signs of mental deficiencies, their consent will likely be considered legitimate. Just like in previous examples, a child may have limited authority over parts of the home, which means the parents probably can’t consent to search everything. For example, officers shouldn’t search a locked closet in the parent’s bedroom if the child says they don’t have the key or any access to it.
Housekeepers and Sitters
A housekeeper that only visits the home to clean usually does not have the authority to give consent to search. This is because these housekeepers are not residents of the home, they do not use the home for any of their own purposes, and they only have access to the home in a restricted manner at the owner’s discretion.
However, if the housekeeper lives in the home, they could authorize a police search of the parts they have access to and use for their own purposes. This means that they may not be able to offer consent to search their employer’s private rooms if they only visit them to clean, but they could give consent to search a kitchen that they use to cook their own meals.