Protecting your property from unwanted or unexpected guests is tricky when you have another person living in your home who may invite people in. What can and what should you do if law enforcement comes knocking and asks to conduct a search without a warrant?

Consent and the Fourth Amendment

Can the other people in your home consent on your behalf? Searches conducted without a warrant are presumptively unconstitutional. However, many exceptions exist, with one of the biggest being situations where police receive consent to the search. We should start with the basic premise that, if asked, you should never consent to a search. This is true even if you think you have nothing to hide. The Fourth Amendment protections against unreasonable search and seizure were included by the founding fathers for a very important reason.

I often ask people who have raised teenagers if they can tell me with 100% confidence that none of the teenagers they had in their home ever brought anything illegal into the house. Because even if someone else brought an illegal item into your home, if you are found with it and it appears to be in your possession, then you likely have criminal liability.

I have seen on rare occasions even more egregious examples of why one should not consent to searches. One of these extreme examples was the recent Florida case of a police officer who was planting drugs in peoples’ cars during the course of a search after they had consented to the search. So, you should not give law enforcement consent to a search in any situation.

What If Someone Else Gives Police Consent to Search?

Is that allowed? In order to challenge the search, you must first have an expectation of privacy. For example, generally speaking, if you were in your friend’s car and you were pulled over, and your friend consented to a search of his car (in which you’re a passenger), you would be unable to contest the validity of the search of the car because you had no expectation of privacy inside someone else’s vehicle.

However, if it is a location where you have an expectation of privacy, such as inside your own home or inside your own car, and someone else consents to a search, the question will be whether they had actual or apparent authority to consent. If the person who had consented to the search had an equal right to control the space, such as a roommate who lives in your home and who equally shares all parts of the home, then the search will likely be upheld under the theory that they had actual authority to consent to a search of that area. This can be a very fact-specific analysis.

What If Someone Consents to a Search but They Didn’t Have Authority to Consent?

For example, during a get-together at your home with friends while everyone else is in the backyard, a guest answers a knock at the door and allows police officers into the home without telling them he is merely a house guest.

While this guest probably did not have actual authority to consent to the search, the police will argue that his apparent authority was sufficient. The Pennsylvania Supreme Court in the case of Commonwealth v. Strader explained that apparent authority exists when a third party with apparent authority over the area to be searched provides police with consent to the search. Here, third party consent is valid when police reasonably believe a third party has authority to consent. Specifically, the apparent authority exception turns on whether the facts available to police at the moment would lead a person of reasonable caution to believe that the consenting third party had authority over the premises.

If the person asserting authority to consent did not have such authority, that mistake is constitutionally excusable if police reasonably believe the consenter had such authority and police acted on facts leading sensibly to their conclusions of probability. Again, this is a fact-specific analysis, and if you challenge a search in these circumstances, the court will make a decision regarding the validity of the search based on the unique facts of your case.

Now, even if no one consents to a search, the police may proceed to search a property. The Fourth Amendment is riddled with exceptions that allow searches to occur in a variety of situations. If you deny a law enforcement request to search and they search anyway, it is important to remain polite but firm that you are not giving consent.

It is also important to remember you are not going to win every argument with law enforcement. If police are intent on searching your property even without your consent, it may become a reason for a case against you to be dismissed in the future.

For any other questions regarding searches of your home or property, call U.S. LawShield and ask to speak with an 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.