Police typically need a warrant before they can search a home. They don't need a warrant, though, if you consent to a search. What happens if you share the home with a roommate? Can you consent to a police search on their behalf? Can they consent on your behalf?
Generally, if someone with control over the property agrees to a police search request, the subsequent search is probably legal. Someone with "control" over the property includes a resident of the home, but not someone who is clearly a momentary visitor. However, consent has its limits when it comes from only one of two or more parties having control over the home.
(Keep in mind that, even though rules tend to be pretty consistent throughout the country, the law in the jurisdiction will control in any case.)
The police can enter a home when only one occupant of several is present and consents—the agreement of any other occupant typically isn't needed. For example, if college students Jenna and Brian share an apartment and the police ask to enter when only Jenna is home, her consent is all that's needed to make their entry legal. (We'll discuss how much of the home police can search in the next section.)
But the outcome is different if another occupant is home and objects to the search. If two occupants are present, the police usually can't search the residence if either one objects. Physical presence is key, however: The Supreme Court confirmed in 2014 that the objecting occupant must be present in order to prevent the search. In our example, Brian's objection would stop the search but he must be home to voice his objection. (Georgia v. Randolph, 547 U. S. 103 (2006); Fernandez v. California, 571 U.S. 292 (2014).)
Example 1: Wallace and Bodie share an apartment as roommates. The police, responding to a neighbor's noise complaint, knock on the apartment door. Only Wallace is home. When he answers the door, the officers ask him whether they can come in and look around. He says yes. Even though Bodie isn't around and hasn't consented, the police are authorized to come in and have a look.
Example 2: The police knock on the door and Wallace answers. This time, however, Bodie is home. He hears Wallace, who agrees to let the officers in, talking to them. He rushes to the door and tells the officers, "You can't come in. I don't consent to you entering my home." The officers aren't allowed to come into the apartment.
Example 3: After speaking with Wallace and Bodie and determining that they can't search the apartment, the officers leave. Two hours later, they come back and knock again. Bodie has stepped out of the apartment since they were last there, so Wallace is the only one home. He consents to the officers coming in and taking a look. Even though Bodie had been present and recently objected to a police search, the officers are now entitled to look around.
Assuming they have the consent of the only roommate who is present, the police may normally inspect all parts of the home that he or she uses. So, they can search any part of the premises the consenting party occupies (such as that person's private room) and any areas of the home where all roommates or tenants have access. Shared areas generally include places like the living room and kitchen.
The police generally cannot search the private room or belongings of a person who, either present or not, did not grant consent. To determine whether the police may search a specific part of a home, courts evaluate whether the person who granted consent has access to and authority over it. To return to our example of Jenna and Brian, the police would not have authority to search Brian's bedroom if that room were his alone and not one Jenna had use of.
When only one roommate is around and grants consent for the police to perform a search, courts often look at the relationship and understanding between the roommates to decide how much of the home the police were authorized to examine. For example, searching an entire residence would be justified if the roommates were romantic partners—the assumption is that no areas of the home were off-limits to either partner. But if the occupants are simply roommates or co-tenants and the one talking to the police doesn't have permission to use or access another's bedroom, then that bedroom is off-limits. On the other hand, if Jenna and Brian, starving students that they are, can afford only a one-bedroom apartment, then the bedroom and closet that they share means that the consent of one will probably permit the police to search the shared space.
As with almost all search issues, the issue is as much how the circumstances reasonably appeared to the police as it is who actually has access to and uses what in the home.
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