The scenario in which the police knock at your door, asking to search the premises, and someone other than you answers, can be a concerning circumstance.

Consent and Common Authority

“Consent” is a well-established exception to the requirement that police obtain a warrant before searching a residence, and valid consent to search may be obtained from any person who possesses “common authority” over the premises.

“Common authority,” in turn, depends on having “joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right, and that the others have assumed the risk that one of their number might permit the common area to be searched.” United States v. Matlock, 415 US 164, 171 n.7 (1974).

Thus, if the police met the burden of establishing that your roommate consented to a search of a residence, they would likely be deemed to have valid consent to search the common areas of the dwelling based on the roommate’s common authority over such areas, though not necessarily for your bedroom or other areas to which the roommate could not reasonably be assumed to have joint access.

More on Consent

On the other hand, the police, generally, could not conduct a valid search based on the purported consent of a social guest or other non-roommate, because such a person would not reasonably be considered to have a right to search the residence themselves. One exception, however, is if the person had “apparent authority” to consent—that is, the police had “a reasonable good-faith belief that the consenting party has common authority over, or other sufficient relationship to, the premises or effects sought to be inspected.” See Illinois v. Rodriguez, 497 US 177, 188 (1990).

Even a person’s statement that they live in the residence may not always be relied on where “the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry.” Id.

For example, the Colorado Court of Appeals has held that a defendant’s former girlfriend, who represented to police that she lived in the house, did not have apparent authority to consent to a search, where she made that representation in the context of reporting crimes by the defendant, and did not have a key to the home. People v. Morehead, 450 P.3d 733 (Colo. App. 2015), rev’d in part on other grounds, 442 P.3d 413 (Colo. 2019).

Can a Child Give Consent to Enter and Search the Home?

A child’s purported consent to enter and search a home would be analyzed under the totality of circumstances test for apparent and common authority. See People v. Bachofer, 85 P.3d 615, 619 (Colo. App. 2003) (remanding for further findings as to whether officers had objective basis for good faith belief that 15-year-old had authority to consent to entry into home).

The courts have not decided the issue directly, but the Colorado Supreme Court has provided some indication of how it would address such a question, quoting the U.S. Supreme Court’s statement in Georgia v. Randolph, 547 US 103 (2006), that “[a] child of eight might well be considered to have the power to consent to the police crossing the threshold into [the entryway] . . . but no one would reasonably expect such a child to be in a position to authorize anyone to rummage through his parents’ bedroom.” People v. Stock, 397 P.3d 386, 393 (Colo. 2017) (additional citation omitted).

In most circumstances, however, courts will give the police the benefit of the doubt in assessing the reasonableness of their reliance on the apparent authority of a person giving consent. So, if you do not want your guests to allow police into your home and you are not sure they will respect that wish, you should not leave the guests alone in your home.

For any questions regarding searches or giving consent to search, contact U.S. LawShield and ask to speak to your Independent Program Attorney.

The preceding should not be construed as legal advice nor the creation of an attorney-client relationship. This is not an endorsement or solicitation for any service. Your situation may be different, so please contact your attorney regarding your specific circumstances. Because the laws, judges, juries, and prosecutors vary from location to location, similar or even identical facts and circumstances to those described in this presentation may result in significantly different legal outcomes. This presentation is by no means a guarantee or promise of any particular legal outcome, positive, negative, or otherwise.