Police need a warrant before they can search a home, unless an exception to the warrant requirement applies. One such exception is consent: If someone with control over the property agrees to a police search request, the subsequent search is legal. Someone with “control” over the property includes a resident of the home, but not someone who is clearly a momentary visitor. (For more on guests, see Ignorance Isn’t Bliss: When Police Search a Home With Only a Guest’s Consent.)
But even when it’s clear that someone has authority to consent to a police search, that person doesn’t necessarily have authority to allow the police to search all parts of the home. This issue frequently arises with roommates, who might share certain areas of the home but not others (such as their bedrooms). When police come knocking at the door and find only one cotenant or roommate home who readily invites the officers in to take a look, is the consent sufficient? If so, what is the scope of that invitation? Where, exactly, can the police search?
Police Searches When Only One Roommate Consents
The police can enter a home when only one occupant of several is present and consents—the agreement of any other occupant isn’t needed. For example, if college students Alex and Brian share an apartment and the police ask to enter when only Alex is home, his consent is all that’s needed to make their entry legal.
One Roommate Consents: Where May the Police Search?
In general, the police may search all parts of the home that the person who gave consent uses. So, they can search any part of the premises the consenting party occupies (such as that person’s private room) and any areas of the home where all roommates or tenants have access. Shared areas generally include places like the living room and kitchen.
Importantly, though, the police generally cannot search the private room or belongings of a person who, either present or not, did not grant consent. To determine whether the police may search a specific part of a home, courts evaluate whether the person who granted consent has access and authority over it. To return to our example of Alex and Brian, the police would not have authority to search Brian’s bedroom, if that room were his alone and not one Alex had use of.
When only one roommate has granted consent for the police to perform a search, courts often look at the relationship and understanding between the roommates to decide how much of the home the police were authorized to examine. For example, searching an entire residence would be justified if the roommates were romantic partners—the assumption is that no areas of the home were off-limits to either partner. But if the residents are simply roommates or cotenants and one doesn’t have permission to use or access another’s bedroom, then that bedroom is off-limits. On the other hand, if Alex and Brian, starving students that they are, can afford only a one-bedroom apartment, then the bedroom and closet that they share means that the consent of one will probably permit the police to search the shared space.
With almost all search issues, the issue is as much how the circumstances reasonably appeared to the police as it is who actually has access to and uses what in the home.
The considerations that dictate whether the police may search certain areas of a home also apply to items within the residence. Even if a roommate consents, the police cannot search a closed bag or suitcase of another occupant unless the consenting roommate has access to that item as well.