Protecting your property from unwanted and unexpected guests is tricky when someone else is in your home. This can create difficult situations with family and friends—and in particular, law enforcement.

Consent

Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, the general requirement is that a warrant must be obtained. In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement. Valid consent is such an exception.

Valid consent to a search eliminates the need for either probable cause or for a search warrant. In order to justify a warrantless search on the grounds of consent, the State has the burden of proving that the consent was freely and voluntarily given by what is known as a “totality of the circumstances.”

This means ANYONE can consent to a warrantless search, and if that consent is free and voluntary, whatever may be found during that search could be admissible. That includes not only you but potentially anyone in the home can consent to a valid search. A warrantless search is justified when permission is obtained from a third party who possesses common authority over or other sufficient relationship to the premises sought to be inspected.

Third Party Consent

In other words, if the third party—child, friend, roommate—consents to a search of your home or a private area of the home, that consent may be enough. Mere presence of a third party who opens the door is insufficient to show the authority required to conduct a consensual search. In a case involving a third party’s consent to search, the State has the burden to prove not only that consent was voluntary, but that the third party had authority over or other sufficient relationship to the premises sought to be inspected. This could mean not just the home in general, but any area you maintain privately.

To resolve the issue of third party consent, the court can determine whether the objective facts available to the officer at the time would warrant a person of reasonable caution to conclude that the third party had authority over the premises. The officer’s belief that the third party has authority over another person’s property to consent to the search thereof should be based on information previously obtained in his investigation, as well as facts and circumstances that existed at the time of the search…

Let me be clear: Georgia courts have found a search and seizure is reasonable if it is conducted pursuant to a valid search warrant, or:

  1. With consent from the individual whose property is searched;
  2. With consent from a third party who has common authority over the property; or
  3. If a police officer could have reasonably believed that a third party had common authority over the property.

So What Do You Do?

Make sure everyone in the home follows the same plan: don’t consent to a search without a warrant! Anyone answering the door must politely but firmly inform the officers of two important points:

  1. I don’t have the power to allow you to enter; and
  2. You cannot come into this home without a warrant.

Make sure everyone knows the rules and abides by them.

For any questions regarding searches in your home without a warrant, contact U.S. LawShield and ask to speak to your Independent Program Attorney today.


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.