What are your options if law enforcement comes knocking and asks to conduct a search without a warrant? Does law enforcement have the right to simply come in and search? Do you think they are likely to simply ask, or are they more likely to make it sound like a command? What about other people residing in the home; can they consent? What about visitors? Minors? Can someone else consent on your behalf?

The answers to these questions lie in the Fourth Amendment to the Constitution. This amendment protects a citizen against unreasonable searches and seizures from the government. Your home is the place of the greatest protection to your privacy from intrusion—even by the government. The law recognizes a person’s home as a sacred place where he or she has the greatest expectation of privacy from the outside world, including law enforcement. Law enforcement must either obtain a warrant or the search must fall under one of the limited exceptions to the Fourth Amendment to invade the privacy of your home.

Consent

The consent to search exception is one of these limited exceptions. The fact that the law presumes a warrantless search to be unreasonable is something that every law-abiding citizen should know. Never consent to a warrantless search of your home, or any search for that matter, until you have spoken with your Independent Program Attorney. You may already know that, but does your roommate, your child, or even a house guest know that? Probably not.

What happens if you are not home and your teenager answers the door and consents to the search or while you are hanging out with friends, your roommate consents to the search? If a roommate or significant other who lives in the home consents to the search, then it will be difficult to contest the validity of the search since the person who consented has control or ownership of the home. This is especially true when it comes to common areas you share with that person, such as the kitchen, family room, or communal bathrooms.

What about your bedroom or home office that you do not specifically share with anyone else in the house? That will depend on specific facts related to that room. A great way to establish that your room or your office is not a common area is to install a lock on the door, so that you can lock it when you are not home.

What is Required for a Search to Be Valid and Evidence to Be Admissible in Court?

In South Carolina, third party consent may be given by one who has common authority over or some other sufficient relationship to the premises or effects being searched. State vs. Moultrie, 248 S.E.2d 486 (S.C. 1978).

Common authority does not require common ownership, but merely mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable for the searching officers to believe that the person granting consent had the authority to do so. However, a homeowner may grant consent to search the premises on which a criminal defendant resides if the homeowner possesses common authority over, or sufficient relationship to, the premises or effects to be inspected.

Whether or not the search will be upheld in court and the evidence seized will be admissible in court will ultimately come down to the totality of the circumstances surrounding the consent of the child or house guest. Ultimately, it will come down to whether or not the law enforcement officer had a reasonable basis to believe the consenting party had the common or “apparent authority” to consent to the search.

Can a Minor Give Consent?

Could that be a 5-year-old child? The answer would be no. However, what if the child is 10? How about 15? South Carolina doesn’t have a case on point to tell us when the child would have common or apparent authority to consent.

Ultimately, the government will have the burden of proving the child or house guest had the capacity to consent. What is required? A reasonable, good-faith belief by the officer that the child or house guest had authority to consent, and that the consent was given freely and voluntarily.

If you have any questions regarding warrantless searches of your home, call U.S. LawShield and ask to speak with 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.