The Fourth Amendment of the U.S. Constitution protects us all from unreasonable government searches and seizures of our home. While many of our constitutional rights have developed over the years based on later Supreme Court decisions, the right to be free in your home from the government barging in is one that goes directly back to the days of our Founding Fathers who wanted to create a society in which government soldiers and police officers could not trample on the private domain of citizens, as the British had done to the early American settlers.
Of course, the police do sometimes come into people’s homes to collect evidence to be used against them, but they must have a legally valid justification for doing so. One such justification is obtaining a warrant signed off by a judge, which requires a showing of probable cause that the home contains evidence of a crime.
But a far easier way for the police to come into your home is for them to get consent by a person inside the home to let them come in. It should go without saying that a person who knows he or she has evidence of a crime inside the home would often be acting against their own interests by consenting to such a search.
But the police might ask anyone they meet at the door of a house or apartment – a roommate, a guest, a family member, or landlord – to get consent to come in and search around. This is where things get trickier.
A third party may give consent to the police to come inside and search a home, but only if that consent was voluntary and not coerced, and that person had control over the property such that they had the right to allow the police in.
An owner of property could be said to have to control over the property, but it would apply to other people living on that property as well. That said, a landlord may not give the police consent to search a tenant’s property and, likewise, a motel owner could not give consent to search a room.
But if the person has the right to be in the property and control it, such as a roommate or family member, it is possible that that person can give consent to search the home. But this consent can only extend to the areas of the home that that person who gave consent actually had the right to be in, such as common living areas like a kitchen or shared bathroom.
Searching Private Areas of a Home
Thus, the police cannot search a person’s private area within that home if the third party who gave consent to the search did not himself have the right to be in that area.
Determining what would be considered a private area for this question of searching via consent may be complex. For example, if the door to the defendant’s bedroom was locked and the person giving consent did not have a key, this is a strong sign that the third party could not give consent. But a lock is not necessary, and a court could look at other factors in deciding whether the third party could give consent to a defendant’s private area in a home.
The prosecution in a criminal trial will have the burden of proving that a co-occupant could indeed grant access to a specific area in a home where contraband was seized.
Experienced Criminal Defense in Your Oklahoma Criminal Matter
Oklahoma City criminal defense attorney Patrick Quillian is a former Oklahoma district attorney who relies on his years of experience in prosecuting cases to provide the best possible defense for all defendants. If you are facing criminal charges and/or investigation for a felony or misdemeanor in Oklahoma, contact the office of J. Patrick Quillian, Attorney at Law, today at 405.294.4448 to schedule a free consultation to see what his criminal defense team can do for you.