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Can the police search my home if I say no but my co-tenant says yes?

Answer:

No, the police cannot search your home (without a search warrant) if you do not consent, even if your co-tenant (say, your wife or girlfriend) gives their consent, provided that you stay physically put on the premises. But the answer is yes, the police can search your home without a warrant if you leave the premises (even if the police arrest you! ) after having objected to the police searching your home if your co-tenant consents, and is the only one left at your home. This is a strange and difficult concept. As a Jacksonville criminal lawyer, I litigate search issues constantly. The following two Supreme Court cases will illustrate the point of how difficult the law is to understand in this area. Scott Randolph was arrested for drug possession after the police found cocaine in his home. The police did not have a search warrant to search Randolph's home, but Randolph's wife consented to the search. Randolph was also present at the time of the search and objected to the police's request. The police searched anyway and recovered cocaine. At his trial, Randolph's lawyer argued that the search was unconstitutional because Randolph never gave the police consent to search. The prosecutor argued that the wife's consent was sufficient. The trial court ruled for the prosecution and Randolph was convicted. Randolph appealed his conviction and the Supreme Court sided with Randolph, holding that when two co-occupants are present and one consents to a search while the other refuses, the search is unconstitutional and a violation of the Fourth Amendment. The case was Georgia v. Randolph.

That was the law from 2005 until just recently, in 2014, when the Supreme Court changed the law somewhat in Fernandez v. California. Walter Fernandez robbed a man in Los Angeles. The man called 911, the police responded and were told that the suspect (Fernandez) was in a house nearby. The police went to the house, knocked on the door and a woman named Roxanne Rojas answered. The police requested entry to conduct a search, but Fernandez stepped forward and refused them access to the apartment. The police arrested Fernandez, took him into custody and asked Rojas if they could search the apartment. Rojas consented to the search (verbally and in writing) and the police found a knife and a gun. At his trial, Fernandez' lawyer argued that the search of his home was unconstitutional, because he never gave the police consent (just like in Georgia v. Randolph.) Once again, the trial court ruled that the search was valid and Fernandez was convicted of robbery. Fernandez also appealed his conviction all the way to the Supreme Court, but this time, the Supreme Court ruled that the warantless search was lawful because a co-tenant consented.

How could this be? Here, the Court said that while warrantless searches are usually not permitted when two co-tenants are present and one objects, the search becomes reasonable and valid when the objecting co-tenant leaves and is no longer present. Here, the objecting co-tenant was arrested and therefore was no longer present. The court then held the search was reasonable and valid because the consenting tenant was present and had the authority to allow the police into her home to conduct a search.

Lesson Learned:

This is a truly awful and nonsensical Supreme Court decision. Because now, if you refuse to give the police permission to enter your home to conduct a warrantless search, all the police need to do is arrest you to get you out of the way. Then, you are no longer 'on the premises' and your co-tenant may consent and give the police the authority to search. This decision gives the police a great incentive to simply arrest the non-consenting tenant, on any charge, remove him from the premises, attempt to get the consent of a co-tenant and then conduct their search. I believe we will begin to see many fact patterns where this happens (the arrest of the non-consenting co-tenant). So if you're confronted with this situation, what should you do? Continue to object to a warantless police search and don't give your consent. Once again, Just Say No. Even if you're arrested, your lawyer can argue ( like I plan on doing ) that the arrest was a pretext (an excuse) to get you out of the way so that they can try and get the consent to search from someone else living in the house. The Law Office of Richard Landes has represented hundreds of people with complicated search issues, all over the State of Florida, just like the one presented here. Call for a free, no obligation phone consultation.

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