If the police do not have a warrant, they likely cannot search a home under the Fourth Amendment unless an exception applies. One of the main exceptions to the warrant requirement is consent by the owner of the home, or another person who has the authority to permit a search. The person giving consent does not need to have full authority over the property to allow the police to search part of the property. For example, a roommate can consent to a search that covers the areas of the property over which they have control. They cannot consent to a search of another roommate’s areas if they do not have access to them. However, if multiple roommates are physically present, and not all of them consent, the police may not be able to search at all.
Cohabitant Consent in a Suspect’s Absence
If a roommate, spouse, or other cohabitant consents to a search in the suspect’s absence, and the search results in evidence incriminating the suspect, the search will likely be valid unless the suspect can demonstrate that the police could not have reasonably believed that the cohabitant had legal authority over the area searched.
Similarly, the primary resident of a home can give consent, but their consent does not cover areas controlled by a guest, to which the primary resident does not have access. A host cannot give valid consent to search the personal possessions of a guest on the property. Meanwhile, a guest can give valid consent to search areas that they control, even if they do not live in the home. But they cannot give valid consent to search areas controlled by the primary resident or other areas to which they do not have access. Sometimes it is hard to determine who controls certain areas, or whether someone has access to all of a property. The police will get the benefit of the doubt if it was reasonable to believe that the person who gave them consent had access to the areas covered in the search.
Consent by Children
A child may have the ability to give valid consent to a search if they are old enough to understand the situation and have access to the necessary areas of the home. If a parent is away, the child may be the only person living in the home, which may give them the ability to give full consent. However, if there are areas of the home to which the child does not have access, the police probably cannot search those areas without talking to the parents.
Consent by Landlords
A landlord usually cannot give valid consent to a search of a tenant’s apartment if the police do not have a warrant. This is because the apartment is the home of the tenant rather than the landlord. In certain types of emergencies, the landlord may be allowed to assist the police with entering a unit. They also maintain control over the common areas of the complex and can give valid consent to a search of them.
A landlord generally cannot consent to the search of a tenant’s apartment so long as the tenant remains in possession.
Once a tenant has moved out of the apartment, the landlord can give valid consent to a search. If the tenant is going through the eviction process, the question of whether the tenant or the landlord has control over the unit can become complicated. Each person’s ability to consent to a search will depend on the stage of the eviction process and the law in the specific state. If the tenant has not received written notice of the eviction, for example, the landlord may not be able to provide valid consent. Once the eviction has concluded, the landlord becomes the actual possessor of the unit and has the ability to consent to a search.
Consent by Housekeepers
A housekeeper generally cannot give valid consent to search a home in which they work. There may be an exception if the housekeeper lives there, such as when a housekeeper is a permanent staff member, and they consent to a search of only the areas that they control.
Consent in Hotels
A hotel room might not seem like a home, but it is similar for Fourth Amendment purposes. Unless they have a warrant, the police cannot search an occupied hotel room without the consent of the guest. Hotel employees usually cannot substitute their consent unless the guest has specifically given them the authority to consent.
Parallel to the landlord situation, however, hotel employees can give valid consent to a search of a hotel room that has been abandoned by the guest. If the guest has exceeded the permitted length of their stay, employees also can consent to a search. There are further exceptions for emergencies, as there are for apartment searches.