Who Can Consent to a Search for Someone Else?

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 What Is A Search Warrant?

A search warrant is a court order that is signed by a judge, and authorizes law enforcement to search a specific place for specific objects, when those objects are believed to be associated with a criminal investigation. Generally speaking, United States citizens have the right not to have their homes or belongings searched by the police, unless specific procedures are followed. Obtaining a valid search warrant, which must be signed by a judge, is part of these procedures.

In order to have a search warrant issued, the police officer who is requesting the warrant must prove to the judge that they have probable cause to conduct the search. Simply put, probable cause means that there must be some basis of belief that there is evidence associated with a crime on the property or premises that they wish to search. To reiterate, police will generally need a search warrant in order to search areas in which a person has a reasonable expectation of privacy.

An example of this would be how police generally need a search warrant when searching a person’s home, because any reasonable person would expect a certain degree of privacy in their own home. Without a valid warrant, there are few exceptions in which the police may search a person’s home.

Additionally, there are circumstances in which a search warrant is invalid or illegal. In general, when a search occurs based on the use of the illegal warrant, the search will be unconstitutional. A search warrant may be considered illegal if the search warrant was obtained without the proper probable cause. It may also be considered illegal if the search warrant does not state or list the time, place, and items to be searched with specificity.

If the search warrant is considered illegal, the evidence that was gathered from the search warrant would not be used against the defendant during a trial. Additionally, it could not be used to charge them with a crime. This will be further discussed later on.

There are certain searches that do not require a search warrant, such as:

  • Consent Search: A warrant is not required when a person who is in control of the property gives consent for the search;
  • In Pursuit Of a Felon: A warrant is not required in order to prevent a felon’s escape or ability to harm others;
  • Imminent Destruction Of Evidence: This is justified when evidence might be destroyed before a warrant can be obtained;
  • Emergency Searches: A warrant is not required if someone is heard screaming, yelling, or calling for help;
  • Search Incident To Arrest: This would be in order to mitigate harm to the arresting officers;
  • Public Safety: A warrantless search may be permissible in emergency situations, such as those in which the public is in danger; and
  • Plain View: This refers to evidence that is in plain view from a lawful vantage point. In plain view cases, the officer must be legally on the premises with a legitimate vantage point, and it must be immediately obvious that the evidence is contraband.

Can Someone Consent To A Search On The Behalf Of Someone Else?

The United States Supreme Court has determined that, if one occupant is present in the home and does not consent to the search, consent of another occupant would be insufficient to justify the search. What this means is that a warrant is required; however, if the objecting occupant is not present when the other occupant grants permission, the warrantless search is considered valid.

Simply put, police may generally conduct a search without a warrant if the property’s owner consents to the warrantless search. Because of this, a common question related to consent and search warrants is whether someone can consent to a search of someone else’s property, on their behalf. This is known as a third party consent search, and the general rule is that the police may search the property if someone who has control over the property consents to the search.

This includes:

  • People who have a key to the property;
  • People who are listed on the property’s lease; and
  • The owner or landlord of the property. A landlord consenting to a search of rental property without the consent of the tenant would be an example of a person consenting to a search on behalf of someone else.

To reiterate, U.S. citizens have various rights to privacy. The 4th Amendment of the Constitution guarantees all citizens the right to be free from unreasonable searches and seizures of a person and/or property. While there are some exceptions to this general rule, the 4th Amendment requires that police first obtain a valid search warrant before searching and seizing property; otherwise, they are violating the citizen’s rights.

Police and home searches are reviewed by the court on a case by case basis, especially when a person’s expectation of privacy is involved. To reiterate, the person who controls the property can clearly consent to a search of common areas that are shared by the tenants.

Examples include living rooms, hallways, and yards. However, it is important to note that the tenant may have an expectation of privacy in their own living spaces. An example of this would be how if they keep their bedroom door locked with a key that the other tenants do not control, they may be protected from a third party consent search.

A general rule is that if an area is off-limits to a tenant, the court will find that the area is off-limits in terms of a warrantless search as well. However, police may always search areas such as these if they have first secured a valid warrant that authorizes them to do so.

The Supreme Court has determined that if you are sharing your home with another person, and the two of you disagree as to whether the police may come in when they knock on the door requesting to do so, the police are not free to search your home. Doing so would be a violation of your rights to privacy. This is conditional on the following circumstances:

  • You are physically present within the house and are near the door; and
  • You clearly tell the police that you are refusing to let them inside, even though the property’s other occupant may be consenting.

What Happens To Evidence That Is Seized During An Unlawful Search?

As was previously mentioned, evidence that was seized by means of an unreasonable police search may be excluded from the proceeding trial. If excluded, the evidence cannot actually be used as evidence, which is known as the exclusionary rule.

An example of this would be if the police showed up at a person’s home for a search, and their roommate wrongfully granted consent to search locked areas. Any evidence that was obtained during that unlawful search will most likely be excluded from the court’s evidence log.

The police may seize evidence illegally in one of two ways. The first would be exceeding the scope of the permitted search under the warrant, and the second would be by not having a warrant where one is needed.

Do I Need An Attorney For A Third Party Consent Search?

If the police have searched your home or other property, you should consult with a criminal defense attorney. Your lawyer can advise you regarding your legal rights and options, as well as determine if any evidence that was obtained during the search would be inadmissible. A criminal defense lawyer will also be able to represent you in court as needed.


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