Montgomery County Criminal Defense Attorney, Can I tell the police to leave if my roommate consents?
Montgomery County Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law
The basic rule of searching a home is that the police have to get a warrant. With a warrant the police may search a home without anybody's consent. But if the police don't have a warrant there has to be an exception to the warrant requirement for them to search. Some examples are:
Hot Pursuit - This is where the police are actively chasing someone due to reasonable suspicion or probable cause that a crime has already been committed or about to be committed and the person runs into a home. The police can chase in after the suspect if it was one continuous chase and they enter immediately after the person goes inside.
Exigent Circumstances - This is where there is some emergency happening in the home which requires the police to enter like someone being attacked in the home or a fire.
Protective Sweep - This is where the police may enter the home because they have reason to believe there may be other people there who are a danger to police or others on scene. The police may do a cursory check for persons and that is all, then they have to leave.
Consent - This is where someone with the authority to give consent to enter the home and search gives that consent to the police knowingly and voluntarily and free from coercion.
The example of roommates consenting to a search when you object to the search falls under the consent exception. If you are not at the home and the police are given consent by a roommate then the roommate can consent to a search of the common areas of the home and any area where the roommate has control or authority over. For example, a wife could allow the search of the entire home. A roommate who has a deadbolt lock on his door and so do you which you typically keep locked wouldn't be able to consent to a search of your room, only the common areas like the kitchen and living room and his own room.
So what happens if you ARE present in the home and your roommate tells the police they can search the common areas and his room and you say HELL NO! Well the law is clear and the police are required to leave.
"a physically present inhabitant's express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant." Georgia v. Randolph, 547 U.S. 103, 122–23, 126 S. Ct. 1515, 1528, 164 L. Ed. 2d 208 (2006).
The Supreme Court of the United States has repeatedly ruled that where someone is physically present in the home the police are wishing to search and they object the search becomes illegal. However if the objecting person is not present in the home the search may continue. Fernandez v. California, 571 U.S. 292, 301, (2014).
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