Search of Marital Home

July 22, 2008

My House Is My Castle


Mr. X asks:  I want to know if my wife can give permission to the police to search my house for drugs even if I am there and refuse to give my consent. The police did not have a search warrant to search my house.  But my wife and I have not been on the best terms and on that day, we had a quarrel.  Maybe that is why she gave the police consent to search our house.




Mr. X, your wife cannot allow the police to search your house if you are physically present and refuse the search.  Even if both you and your wife co-own or have equal possession of the house, your wife cannot allow the police to search the house if you do not want them to. They have to get a search warrant unless they have valid reasons to search the house under any exception to the warrant requirement of the U.S. Constitution. 


The Fourth Amendment of the United States Constitution protects persons within the United States from “unreasonable searches and seizures” of their “persons, houses, papers, and effects” unless the government has a search warrant.  The Constitution also provides that “no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”


This provision was intended to protect citizens against warrantless searches by law enforcement due to the perceived strength of the government as against the individual.  Although the Supreme Court has enumerated several exceptions to the warrant requirement for conducting searches, the Supreme Court has been reluctant to infringe upon the protections guaranteed by the Fourth Amendment, noting that “when the right to privacy must reasonably yield to the right of search is, as a general rule, to be decided by a judicial officer, not by a policeman or a government enforcement agent” (Johnson v. United States, 333 U.S. 10, 14-15 [1948]).


Against this very clear limitation of the Fourth Amendment, the Court traced the history of third-party consent cases, noting the development of the valid consent exception to the Fourth Amendment warrant requirement. The United States Supreme Court in the case of Georgia v. Randolph (126 S. Ct. 1515 [2006]) held that to determine the reasonableness of consented searches without warrant, the courts must consider “widely shared social expectations.”  Thus, the current rule is that a co-occupant (such as husband or wife) with common authority over any property, may permit a warrantless search valid as against other absent co-occupants.  If the other co-occupants are not physically present during the search, the co-occupant who is present can validly give consent and such consent binds other absent co-occupants.  However, one co-occupant’s consent to a search may not supersede an express refusal made by a physically present co-occupant.  Thus, a co-occupant cannot permit a warrantless search if another co-occupant who is physically present objects to the search. 


The Court observed that there is no hierarchy in the property rights co-tenants.  Thus, “there is no societal understanding of superior and inferior, a fact reflected in the common understanding of domestic property law, that ‘each cotenant has the right to use and enjoy the entire property as if he or she were the sole owner limited only by the same right in other co-tenants”. The Court also reasoned that because there is no “common understanding that one co-tenant has a right or authority to prevail over the express wishes of another”, all visitors, including the police, are devoid of any claim to reasonableness in entering a home at the request of a co-inhabitant in the face of another protesting co-inhabitant.