The two primary parties in most police searches are the police and the suspect whose property is being searched. In some circumstances, a third party may be involved, who may consent to a search on behalf of the suspect.
A classic example is when the suspect is not home, and a roommate agrees to let the police search the suspect’s property. Here, the roommate may be deemed the third party who proffered consent on behalf of the suspect.
When Are Searches Permitted?
A person’s home has special protection under the Fourth Amendment, which safeguards the right of the people “To be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
To search a person’s home for evidence of a crime, the police must get a search warrant from a judge. If the police do not have a search warrant, a search is only allowed if an exception to the warrant requirement applies.
What Is a Search Warrant?
A search warrant application is a document drafted by the police. In the warrant application, law enforcement asks that the Court permit it to search a home. The Court may only grant the application if the application has enough detail to provide “probable cause” for the search.
“Probable cause” means reasonable cause to think that evidence of criminal activity or a crime can be found at the address noted in the application. If the court finds probable cause, the Court will sign the application.
Typically, the search scope is restricted to where the evidence of criminal activity or a crime may be discovered. For instance, if the warrant suggests that the suspected crime is the theft of a baby grand piano, then the police may scour all rooms large enough to contain a piano. Yet, the police may not exceed the warrant’s scope by searching items or areas too small to have a piano. To do so would be to “execute” the warrant unreasonably, violating the Fourth Amendment.
If the police validly perform the warrant and discover evidence relating to a crime or criminal activity, the evidence may be seized and introduced. To be “introduced” means that the evidence can be utilized at trial against the defendant thought to have perpetrated the crime.
When Can the Police Search My Home?
Under the Fourth Amendment of the United States Constitution, any search of a home by the police must be “reasonable.” For the search of a home to be “reasonable,” the search must be conducted with a search warrant.
A search without a warrant is unreasonable unless the search is performed under a legal exception to the warrant requirement.
Can A Person Consent to a Search On Behalf of Someone Else?
A search warrant is an order signed by a judge that allows law enforcement to scour a distinct place for specific objects when those objects are related to a criminal investigation. In general, U.S. citizens have the right not to have their homes or belongings searched by the police unless detailed procedures are followed. Getting a valid search warrant, signed by a judge, is part of these proper and specific procedures.
To have a search warrant issued, the police officer requesting the warrant must demonstrate to the judge that they have probable cause to search. There must be some basis for the belief that evidence is connected to a crime on the property or premises they wish to search. Police will typically need a search warrant to search areas where a person has a reasonable expectation of privacy.
An example of this would be how police usually require a search warrant when searching a person’s home because any reasonable individual would expect a certain level of privacy in their own house. Without a warrant, there are few exceptions in which the police may search a person’s home.
In general, police may search without a warrant if the property’s owner agrees to the warrantless search. A typical question related to consent and search warrants is whether someone can consent to search someone else’s property on their behalf. This is known as a third-party consent search. The general rule regarding this matter is that the police may search the property if someone who controls the property consents to the search.
This includes individuals who have a key to the property, are listed on the property’s lease, or are the owner or landlord. A landlord consenting to the police searching a rental property without the tenant’s consent would be an instance of a person consenting to a search on behalf of someone else.
How Does the Reasonable Expectation of Privacy Factor Into Consensual Searches?
As previously mentioned, U.S. citizens have various privacy rights. The 4th Amendment of the Constitution guarantees all citizens the right to be free from unreasonable searches and seizures of a person or property. There are some exceptions to this general rule. However, the 4th Amendment demands that police get a valid search warrant before searching and seizing property. Without first obtaining a warrant, the police could be disregarding the citizen’s rights.
Courts will examine all police and home searches on a case-by-case basis. This is particularly true when a person’s expectation of privacy is involved.
Typically, the individual who controls the property can consent to a search of common areas shared by the tenants. This could include living rooms, hallways, and yards. However, the tenant may expect privacy in their living areas. An example of this will be if they keep their bedroom door locked with a key that the other tenants do not possess. They may be shielded from a third-party consent search in such instances.
A general rule is that if an area is off-limits to a tenant, the court will often find that the site is off-limits in terms of a warrantless search. Nevertheless, police may always search areas such as these if they have prearranged a valid warrant that permits them to do so.
Are Third Party Consent Searches Legal?
Generally, suppose a suspect is going to be searched by the police. In that case, the police need a search warrant to search where the individual has a “reasonable expectation of privacy” (such as in their bedroom or living quarters). However, the police can still search such areas without a warrant if the suspect willingly and knowingly consents to such a search. This is known as a “consent search.”
However, whether a third party can consent on behalf of another is a more complex situation.
Third-party consent searches may be legal if:
- The searched area is shared in common with the suspect and the third party (such as a living area, a shared common dining room, hallways, shared bathrooms, etc.).
- The third party lawfully controls the shared area- i.e., they have a key to such areas, or their name is listed jointly on a lease.
- The consent is offered willingly and without any force or deception.
Do I Need a Lawyer for Help with Consent Searches?
Consent searches can often play an essential part in a criminal investigation. You may wish to hire a criminal lawyer if you need help with legal issues such as police searches and individual privacy rights. An attorney can provide you with legal service on your problems and can represent you during the upcoming trial.