The Fourth Amendment of the U.S. Constitution provides protection against unreasonable searches and seizures by law enforcement of the dwellings of citizens. The Fourth Amendment states as follows:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The main reason for the Fourth Amendment is to protect a person’s right to the privacy of their person, their home and its contents and their papers and effects, i.e. their belongings. To search a person’s property, the police generally must have a search warrant supported by probable cause to believe that a crime has been committed and that evidence of the crime is located in the place to be searched.
A valid search warrant is an order issued by a judge, and it describes the place to be searched and the evidence that can be seized if it is found. A judge issues a search warrant after a hearing at which law enforcement has presented the judge with sufficient evidence to support a finding of probable cause. There are a limited number of exceptions to the requirement that law enforcement obtain a warrant prior to conducting a search.
If a search is conducted illegally, that is without a valid warrant or the justification of an exception to the warrant requirement, then any evidence seized during the search cannot be used in the trial of a criminal suspect. It must be excluded from evidence.
Before a criminal trial, if the person charged with a crime, the defendant, expects the prosecution to use evidence obtained from a search, the person can make a motion to suppress the evidence. The defendant would claim that the search that produced the evidence was illegal. The court holds a hearing on this motion and rules on whether there was probable cause or an exception to justify the search. The court then decides whether the evidence is admissible at trial.
One important exception to the warrant requirement allows the police to conduct a search if they have consent for the search from the occupant of a dwelling.
How Do Fourth Amendment Rights Differ When People Share Property?
As noted above, to search someone’s property, the police generally need a search warrant supported by probable cause. A search without a warrant may be conducted under certain limited exceptions to the warrant requirement. One of those exceptions provides that law enforcement may conduct a search if the occupants of the place consent to the search.
Consent is viewed as a type of waiver to the Fourth Amendment rights of the consenting person. A person may consent to a search of their person, car or dwelling by police officers who have not obtained a warrant before asking to conduct the search.
In a trial, if the prosecution wants to use evidence seized during a search made with consent, the prosecution has the burden of proving that consent was given voluntarily and not coerced. The prosecution must also prove that the person who gave the consent was aware of their right to refuse their consent. If the consent to search is challenged, a court that reviews the search would determine whether the consent was given freely or coerced based on the totality of the circumstances.
The prosecution does not have to prove that the person who gave consent had actual knowledge of the right to refuse consent for a search pursuant to consent to be found valid. So, law enforcement does not have to inform a person of their right to refuse to consent to a search. But consent will not be found voluntary when a police officer asserts his official status and claims a right to search, and the occupant agrees to the search on the basis of these factors.
When law enforcement obtains consent through the deception of an undercover officer or an informer who gained admission to a dwelling without bothering to tell the occupant who he was, the Supreme Court has held that the occupant assumed the risk that a person they invited into their home would betray them and turn out to be a police informant. So the evidence obtained through this deception is perfectly admissible on the grounds that the occupant consented to the search.
Consent can be implied and not explicit also. The Supreme Court has endorsed searches of places where the occupants were engaged in certain regulated activities. Carrying on such activities is viewed as giving implied consent to a search related to those activities. This is true especially if a violation of the regulations at issue results in civil penalties only and not criminal penalties. But this doctrine of implied consent does not extend to searches when the occupant could be punished under criminal laws.
Other issues regarding the validity of consent to search can arise when consent is given not by a criminal suspect, but by a third-party. Third-party consent used to be acceptable if the third-party had common authority over a place or some other sufficient relationship to the place or the contents of the place that law enforcement wanted to search.
Now, however, actual common authority over the place is not required. It is good enough if the officer who conducts the search has a reasonable but mistaken belief that the third-party had common authority and could consent to the search.
An issue arises also when occupancy of a property is shared, as when roommates share an apartment or a house. The law in this case is that either one of the legal occupants can give valid consent to search the home. This means that if one of the people who share a residence is not home at the time of a search, the other occupant can give their consent to the search, even if the absent party would not have allowed it.
However, the property search is limited only to common areas and areas occupied by the consenting roommate. Personal spaces that are not used by the consenting roommate, such as an office or a bedroom, would remain off limits. Also, someone who owns property but does not use or occupy it, such as a landlord, cannot give consent to a search.
If, however, one occupant consents to a search of shared premises, but a co-occupant who is physically present at the time expressly objects to the search, the search is unreasonable. So, for example, if a person’s estranged spouse consents to a search, but the person expressly refuses to give their consent, the search should not take place without a warrant.
What Happens If Two Property Holders Are in Conflict?
Again, the U.S. Supreme Court recently ruled that while any person who shares common authority over property can give valid consent to a search, if another person who shares the space is present, that person can refuse consent. This means that the police cannot conduct a search without a warrant if any one of two or more people who share common authority over a place is present and objects to the search.
Do I Need a Lawyer?
An experienced criminal defense attorney can help you determine whether a search is legal. A search made without a warrant or the justification of an exception, such as valid consent, is unreasonable, and the police cannot use any evidence obtained in the search. Therefore, it is important to discuss the search with a criminal defense attorney who can evaluate the search procedure.
If you have been charged with a crime and believe that the police obtained evidence against you in a search, you want to consult an experienced criminal defense attorney for guidance.