A search warrant is an order signed by a judge that authorizes law enforcement to search a specific place for specific objects, when those objects are connected to a criminal investigation. In general, U.S. citizens have the right to not have their homes or belongings searched by the police unless specific procedures are followed. Obtaining a valid search warrant, signed by a judge, is part of these proper and specific procedures.

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

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

In general, police may conduct a search without a warrant if the property’s owner consents to the warrantless search. As such, 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. The general rule regarding this issue 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, who are listed on the property’s lease, or is the owner or landlord of the property. A landlord consenting to the police searching a rental property without the consent of the tenant would be an example 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 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. There are some exceptions to this general rule. However, the 4th Amendment requires that police first obtain a valid search warrant before searching and seizing property. Without first obtaining a warrant, the police could be violating the citizen’s rights.

Courts will review all police and home searches on a case by case basis. This is especially true when a person’s expectation of privacy is involved. Generally, the person who controls the property can clearly consent to a search of common areas shared by the tenants. This could include living rooms, hallways, and yards. However, the tenant may have an expectation of privacy in their own living spaces. An example of this would be 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 in such instances.

A general rule is that if an area is off limits to a tenant, the court will often 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 secured a valid warrant that authorizes them to do so.

In a recent decision made by the Supreme Court, 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. This is conditional on the following circumstances:

  • You are physically present within the house and 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?

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. This is what’s 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 obtained during that unlawful search will most likely be excluded from the court’s evidence log. However, it is important to remember that this may vary based on the facts of each individual case.

Do I Need an Attorney for a Third Party Consent Search?

If the police have searched your home or other property, it is in your best interest to consult with a skilled and knowledgeable criminal defense attorney. An experienced criminal defense attorney can advise you regarding your legal rights and options, as well as determine if any evidence obtained during the search is inadmissible. Finally, an attorney can represent you in court, and ensure you receive the best possible outcome given the specifics of your case.