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More Then Just the Owner of a Residence Can Give Police Consent to Search

We continue to be amazed at how many people give police officers consent to search them, their vehicles, their homes or anything else that contains illegal drugs or other evidence of criminal activity. Everyone should understand that the the Constitution gives each person a right to refuse a police officer’s request to search his/her private property or belongings.

In any case, there are legal issues that arise that address who is actually authorized to give consent to search a residence when more than one person lives there. Certainly, the owner/occupant can give consent to search, but what about someone else is also staying there or someone who is just visiting?

In a recent case south of Jacksonville, Florida, the defendant was charged with possession of a firearm by a convicted felon and possession of ammunition by a convicted felon after police found the gun and ammunition during a search of his apartment. In this case, the police responded to a domestic violence call at the defendant’s apartment. When the police arrived, they found the 911 caller in the front yard, and she showed some signs of a recent physical altercation. She told the police she lived in the apartment with the defendant for the past two months, but she was not listed as an occupant on the lease. With the woman’s consent, the police officers went inside the apartment to help her retrieve some of her belongings. Once inside, the police officers found an assault rifle and ammunition. The police officers also found a pile of women’s clothes which corroborated her story that she was staying at the apartment.

The defendant was ultimately arrested for possession of the firearm and ammunition after previously being convicted of a felony. His criminal defense lawyer filed a motion to suppress the evidence of the firearm and ammunition claiming the police did not have a right to enter and search his apartment. The court denied the motion and upheld the validity of the search because the evidence was sufficient for the police officers to believe the woman had authority to give consent to search the apartment.

Police officers are generally not allowed to enter a person’s home without either a valid search warrant or consent from someone authorized to give consent to search the premises. In addition to the owner/occupant, someone else who has some common authority over the premises may also give consent to search it. This is generally established by showing the person has common use and access to the premises. Some of the relevant factors include; a key to the premises, a license, bill or some other document showing the person lives at that address, keeping clothes at the premises, a person’s child at the premises or being on the lease. If the person giving consent to search the premises has what appears to be common authority and access to the premises, it is likely that a police officer’s search of the place may hold up in court after consent to search from that person is obtained.