Supreme Court: roommate may consent to police search after other previously refused

The United States Supreme Court just held in Fernandez v. California that police may enter a home and conduct a search without a warrant if one occupant consents, even if another occupant previously objected.

The Fourth Amendment has never required police to obtain a warrant to conduct a search so long as consent is given. But, what about when one occupant of a home consents while another objects? The Court previously held that the police may not conduct a search in this situation. See Randolph v. Georgia, 547 U.S. 103 (2006).

In the recent case, police asked for permission to search, and one occupant consented while the other refused. However, police arrested one of them and removed them from the premises. They returned later that night and asked the remaining party for consent while the other was in jail. Consent was granted; the search took place; and police discovered evidence that led to the non-consenting occupant’s conviction.

The Supreme Court held that Randolph only applies where the non-consenting occupant voices his objection at the time of the requested search. In other words, if one occupant refuses, then police may either attempt to remove that occupant or return when he is otherwise not present.

This obviously has important implications for anyone sharing a home together, including roommates. The saving grace for roommates is that this rule only applies where the consenting tenant has “common authority” over the premises. That means that one roommate presumably cannot consent to police searching her roommate’s bedroom; the search would be limited to the common areas.

Roommates who are particularly concerned about their privacy may consider handwriting a notation on their leases stating that each roommate will have sole possession of his respective bedroom. They can even go a step further than that by closing their bedroom doors when they are away and posting an inscription stating that it is their bedroom and others may not enter without permission (i.e., a “keep out” sign).

Finally, roommates may consider entering into broader cohabitation agreements that make it clear that one person may not consent to allowing police (or anyone else, if so desired) to enter the premises after the other objects. Cohabitation agreements can help roommates avoid any number of disagreements, and should contact a landlord-tenant attorney for assistance.

Categories: Constitutional Law, Landlord-Tenant, and Public Interest Law.