Miranda rights and search-and-seizure rules are just a few of the legal protections given to criminal suspects and defendants. This section spotlights your constitutional rights during encounters with police officers and in the courtroom.
Who Can Let the Police Search Your Home?
Police officers may usually search the home of an owner who consents. But what if someone other than the owner offers to let the cops have a look around?
Questioning by the Police
moreInvoking Your Right to Remain Silent
You’ve seen it time after time on primetime television police shows—cops slapping the cuffs on a “perp” and reading him his rights: “You have the right to remain silent. Anything you say can and
Questioning Suspects in Custody: The Miranda Rule
Police must advise you of your 'Miranda rights' before initiating in-custody questioning.
Search-and-Seizure Law
moreUnderstanding Search-and-Seizure Law
Learn when the government can invade your privacy to hunt for evidence of a crime.
Fruit of the Poisonous Tree: Illegally Obtained Evidence
You might know that evidence the cops find during an illegal search of you or your belongings is probably inadmissible in criminal court.
Arrests and Detentions: Your Rights and the Law
moreArrest Warrants: What's in Them, How Police Get Them
Police must convince a neutral judge that, more likely than not, a crime has been committed and the subject of the warrant was involved.
When the Police Can Make an Arrest: Probable Cause
"Probable cause" requires more than a mere suspicion that a suspect committed a crime, but not as much information as would be required to prove a suspect guilty beyond a reasonable doubt.
Police Misconduct
moreWarrant Execution and Unreasonable Police Behavior
When the police knock on your door, you typically don’t have to let them in unless they have a search warrant signed by a judge.
Police Brutality
moreResisting Arrest When Police Use Excessive Force
In most states, arrestees can resist arrest only in limited circumstances.
Suing the Police for Excessive Force
Excessive force by the police during an arrest violates the Fourth Amendment to the U.S. Constitution.
Recording the Police
moreDo you have the right to record a police officer doing his job?
Who Can Let the Police Search Your Home?
Police officers may usually search the home of an owner who consents. But what if someone other than the owner offers to let the cops have a look around?
By Micah Schwartzbach, Attorney
This article addresses the following question: Can the police search a home when someone who's not the owner agrees to a search?
Courts generally start with the presumption that any search of a home without a warrant is unreasonable. And evidence from unreasonable searches is generally inadmissible in court. But, as with almost all legal rules, there are exceptions to the home-warrant requirement. One exception involves consent: The police normally don’t need a warrant in order to inspect a home when someone who appears to have authority to allow them to search lets them search.
When the owner of a home agrees to the police searching the premises, the search will, in all likelihood, be legal. The question of whether a home search is legitimate gets a little trickier when someone other than an owner consents to the exploration.
What About Landlords?
For related information, see our article on whether the police may search a renter's home if the landlord consents.
Residents
Even occupants who have less than full rights over the premises can, through consent, give police the legal justification they need to search parts of a residence. For example, a roommate can give consent that allows the police to search her room, the living room, and the kitchen. But if she doesn’t have access to or control over her roommate’s separate bedroom, she can’t provide proper authorization for the police to search it.
Residents and Their Guests’ Belongings
In general, the primary resident of a home can give valid consent to a search that might implicate a guest who is temporarily staying there. But if the resident doesn’t have access to or use of the place or item to be searched, the consent is probably invalid.
Suppose, for example, that Badger asks for permission to stay in Jesse’s home. Jesse agrees, and Badger moves some belongings in temporarily. When Drug Enforcement Administration agents come knocking, Jesse consents to their searching the house. During the search, they find an open bag in the living room with “Badger” stitched into it and baggies of methamphetamine exposed. The drugs are likely admissible in court against Badger because, as a mere guest, he didn’t have a legitimate expectation of privacy in the living room. (Turner v. State, 573 So. 2d 657 (Miss. 1990).)
On the other hand, if the officers had found the bag in a room that Jesse had set aside specifically for Badger, and only Badger had used and had access to that room during the visit, then the evidence might be inadmissible. (State v. Cover, 450 So. 2d 741 (La. Ct. App. 1984).)
Importantly, regardless of its location, if the bag had been zipped shut and the officers had discovered the meth only after opening it, a court would probably suppress the evidence. That’s because hosts generally don’t have the authority to consent to a search of their guests’ “personal effects” when there’s no reason to believe they have access to or control over them. (State v. Edwards, 214 Conn. 57 (1990), People v. Gonzalez, 88 N.Y.2d 289 (1996), People v. Loomis, 794 N.Y.S.2d 220 (2005).)
Guests
A person who doesn’t live in a home but who uses and has joint access to or control over parts of it can authorize the police to search those parts. But someone who is a mere guest generally doesn’t have authority to let the police snoop around. The question is whether police officers reasonably believe that someone who provides consent has normal access to and use of the parts of the house to be searched.
Children
Whether the police are allowed to search a home after receiving permission from a child who lives in the house depends on the circumstances. To determine whether a child's consent is valid, a court might consider factors like the kid’s age and how much use of the premises the youngster appears to have.
In one case, a court determined that the police were reasonable in assuming that a 15-year-old had enough control over an apartment she lived in in order to let them search it. The court pointed out that:
- the girl told the police that her mother was out of town
- she told them she was in charge of the home, and
- other adults on the premises let her talk to the police without trying to assist her.
(Rajappa v. State, 200 Ga. App. 372 (1991).)
But even when a child has authority to agree to a home search, the police probably can’t use consent to search everything. For instance, officers would likely be going too far by searching a locked trunk that the child doesn’t have a key to. (People v. Cooney, 235 Cal. App. 3d Supp. 1 (1991).)
Housekeepers
Usually, consent to search a home that a housekeeper gives is invalid. For example, an Illinois court upheld a ruling suppressing evidence police found in a home after the housekeeper gave them the green light. The court agreed that the search was unlawful because the officers knew that:
- the housekeeper wasn’t a resident of the home
- she didn’t use the home for her own purposes, and
- she had access to it only at the discretion of the homeowner.
(People v. Keith M., 255 Ill. App. 3d 1071 (1993).)
Of course, if the housekeeper lives in the home and authorizes the police to search only those parts of it that he or she has access to, then the search might be legitimate. In general, the more authority over the home someone like a housekeeper (a live-in babysitter, for example) has, the more likely it is that the person's consent will be valid.
https://www.nolo.com/legal-encyclopedia/who-can-let-the-police-search-your-home.html
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