This article addresses the following question: Can the police search a home when someone who's not the owner agrees to a search?
Courts generally start with the presumption that any search of a home without a warrant is unreasonable. And evidence from unreasonable searches is generally inadmissible in court. But, as with almost all legal rules, there are exceptions to the home-warrant requirement. One exception involves consent: The police normally don’t need a warrant in order to inspect a home when someone who appears to have authority to allow them to search lets them search.
When the owner of a home agrees to the police searching the premises, the search will, in all likelihood, be legal. The question of whether a home search is legitimate gets a little trickier when someone other than an owner consents to the exploration.
Even occupants who have less than full rights over the premises can, through consent, give police the legal justification they need to search parts of a residence. For example, a roommate can give consent that allows the police to search her room, the living room, and the kitchen. But if she doesn’t have access to or control over her roommate’s separate bedroom, she can’t provide proper authorization for the police to search it.
A person who doesn’t live in a home but who uses and has joint access to or control over parts of it can authorize the police to search those parts. But someone who is a mere guest generally doesn’t have authority to let the police snoop around. The question is whether police officers reasonably believe that someone who provides consent has normal access to and use of the parts of the house to be searched.
Whether the police are allowed to search a home after receiving permission from a child who lives in the house depends on the circumstances. To determine whether a child's consent is valid, a court might consider factors like the kid’s age and how much use of the premises the youngster appears to have.
In one case, a court determined that the police were reasonable in assuming that a 15-year-old had enough control over an apartment she lived in in order to let them search it. The court pointed out that:
(Rajappa v. State, 200 Ga. App. 372 (1991).)
But even when a child has authority to agree to a home search, the police probably can’t use consent to search everything. For instance, officers would likely be going too far by searching a locked trunk that the child doesn’t have a key to. (People v. Cooney, 235 Cal. App. 3d Supp. 1 (1991).)
Usually, consent to search a home that a housekeeper gives is invalid. For example, an Illinois court upheld a ruling suppressing evidence police found in a home after the housekeeper gave them the green light. The court agreed that the search was unlawful because the officers knew that:
(People v. Keith M., 255 Ill. App. 3d 1071 (1993).)
Of course, if the housekeeper lives in the home and authorizes the police to search only those parts of it that he or she has access to, then the search might be legitimate. In general, the more authority over the home someone like a housekeeper (a live-in babysitter, for example) has, the more likely it is that the person's consent will be valid.
If your home has been searched by the police and you face criminal charges, talk to an experienced criminal defense attorney. A knowledgeable lawyer will be able to advise you about the law in your jurisdiction and your specific case.