Protecting your property from unwanted or unexpected guests can be tricky enough, but it gets even more complicated when you have another party living in the domicile. Let’s focus on what we need to know if law enforcement comes knocking and wants to make a search of the premises without a warrant, with specific emphasis on third-party consent situations.
We all have times in our lives when we live with someone, whether it be growing up with other family members, a college dorm, an apartment with friends, a girlfriend or boyfriend, or maybe we have an acquaintance crashing on the couch for a couple of days. Regardless of the circumstances, their decisions when allowing police into the living space can have ramifications for everyone who lives there, including you.
The Fourth Amendment
Thankfully, we are afforded protections against unwanted intrusions under the Fourth Amendment of the United States Constitution and Article One, Section 14 of the Ohio State Constitution, which essentially mimics the federal guarantees.
Furthermore, the 1961 case Mapp v. Ohio held that those Fourth Amendment protections are applicable in state court proceedings through the due process clause of the Fourteenth Amendment. The language of our state constitution is as follows:
“The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the person and things to be seized.”
What If Someone Else Gives Consent?
How does it work when others residing in the same house open the door and let the police in to conduct a search? It depends on the relationship this person has to you. If it is your parent’s house and you happen to live there, they can consent to a search of the entire premises. Even those items in your particular bedroom and your personal living space are subject to search when consent is given by your parents. In the end, they own the entire home and their consent covers all areas within it.
If the person giving consent is a child, more analysis is required of age and scope of access to the property, and that will be looked at closely. It is not out of the question that consent by a child could be deemed valid if the person is of the age that they could understand what was going on and had actual access to much of the property.
What About Roommates?
Does your roommate’s consent to the search of the domicile cover the whole living space as it did with your parents? No. In Ohio, consent by roommates usually only allows law enforcement to search the area under the personal control of the person giving the consent, and to those common areas of the home (i.e., those areas shared by all people living there), like the kitchen, TV room, or bathroom, for instance. And even those common areas may be off limits to police under certain circumstances if one of the residents of the property is home and objects. Therefore, in roommate situations like this, the consent would extend to the bedroom of the consenter, or potentially the common areas if no other resident is present to object.
Finally, the length of stay under the circumstances surrounding the attachment to the property as they relate to the person giving consent are also important factors. The authority by third parties to give consent to searches by police without warrants may be limited in some circumstances. Temporary residents and visitors cannot give blanket consent to search when their relationship to the property is temporary and brief.
That friend coming through town and needing a place to stay for a day or two will likely not be viewed by the courts as having the authority to give blanket consent to a search of the entire property. If the visiting friend was alone in the house and police believed the person had the authority to grant that consent, the search could pass muster in a suppression proceeding. At the very least, the personal effects of the guest and possibly those common areas could be considered fair game.
As the stay by the guest lengthens, things could change. He or she could essentially gain more authority the longer they stay, and even though technically temporary, be deemed a resident for purposes of consent, so be careful.
If you have any questions about searches of your home without a warrant, or anything else for that matter, call 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.