Protecting your property from unwanted or unexpected guests is tricky when another party is living in your domicile. What do you do when law enforcement comes knocking and asks to conduct a search without a warrant?
Exceptions to the Warrant Requirement
A search by law enforcement without a warrant is presumed to be unreasonable and a violation of your rights, unless certain exceptions apply. Exceptions include illegal activity, objects in plain view, a search incident to arrest, or in exigent circumstances such as an emergency requiring quick action to prevent: imminent danger to life or property, to stop the imminent escape of a suspect, or the destruction of evidence.
Another exception to police needing a warrant to search your domicile is when they get permission from a party that possesses common authority over the premises. The law states that when one or more persons occupies a house or apartment, one of the parties can consent to the search as long as that party possesses common authority over the premises or effects, unless another person who occupies the premises objects.
Who Has the Right to Consent to a Search?
But what if there is more than one occupant of a residence? Who is allowed to give the consent to a warrantless search then? If someone with control over the property agrees to a police search request, the subsequent search is likely legal. Someone with control or authority over the property includes a resident of the home, but not someone who is a momentary visitor.
Even when it’s clear that someone has authority to consent to a police search, that person doesn’t necessarily have authority to allow the police to search all parts of the home. This issue frequently arises with roommates who might share certain areas of the home but not others, like their bedrooms.
Where the only roommate who is home agrees to the police search, they can search most areas. If another roommate is also home and refuses to give consent, the police might not be able to conduct any kind of search at all. If two occupants are present, one consents and the other objects, the police usually cannot search the residence. Physical presence is key. In 2014, the Supreme Court of the United States held that the objecting occupant must be present in order to prevent the search.
If police are questioning you and you feel concerned about your rights, stop talking and tell the officer firmly but politely that you want a lawyer. Some people fear that asserting their rights will make them look guilty of a crime. Asserting your legal rights is your privilege as a citizen. Don’t undervalue it. If police are questioning you, you won’t talk your way out of it. Go ahead and assert your rights. It can protect you from overzealous law enforcement.
For questions regarding searches in your home without a warrant, 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.