By Anthony Bandiero, attorney and senior legal instructor for Blue to Gold Law Enforcement Training.
A question from an officer in Wisconsin who works with people on house arrest. They sign something like 40 conditions and wear a GPS monitor. He wants to know what happens to the roommates, and Anthony sticks to the constitutional issues.
Do the roommates have to follow the probationer’s conditions?
All right, let’s talk about the situation where one roommate is on supervised release and the other roommate is not. Does the roommate that’s not on supervised release, can they get their room searched? Do they have to abide by all the restrictions that the person who is on supervised release has to comport with?
My name is Anthony Bandiero. I’m an attorney with Blue to Gold Law Enforcement Training, bringing you another roadside chat.
So this officer is in Wisconsin. I’m just going to talk about the constitutional issues here. And so he says, we have people who are on house arrest, right. So they have chosen to leave jail, go spend their time, and serve their time at home. They sign conditions. There’s like 40 conditions. No alcohol, no firearms, not being under the influence. They have to also wear a GPS monitor. The question is what happens with the roommates? Do they have to comply with these rules? Can we search their rooms? Because I know that the people who are on supervised release, they have a Fourth Amendment waiver. Their personal property and their person can be searched at any time. Well, what about the roommates?
Okay. So the first thing to know is that the roommates of course don’t have to abide by any of this. Not one iota.
What happens if the roommate brings alcohol or guns into the house?
If the person on supervised release is not supposed to have any alcohol in the house and the roommate brings home a 12-pack, he’s good to go. He has nothing to worry about. The problem is the guy that’s on supervised release. He should start getting a little nervous, because his probation can be revoked for being in that situation. He should try to convince his roommate to not do it, for his own sake. But the roommate does not have to listen to him.
So what happens here is that if the officers come in and they find that alcohol, they’re going to say, hey, we told you no alcohol. But he’ll say, but look, it’s not my fault, my roommate brought it in. And the cops can say, hey look, I’m sorry, but you better find a better roommate that is a teetotaler, because you cannot be around alcohol. It’s just the way it is.
Okay guys. So that’s the way you look at this. Sometimes a roommate will get a charge. He’ll be on probation. He can’t be around firearms. But the other roommate, that never did anything bad in his whole life, he has firearms. And then the probation officers learn that there’s firearms in the house. And the good guy is like, why? I’m not getting rid of my firearms. You know what, I didn’t do anything wrong.
And the probation officer said, you know what, that’s absolutely right. You don’t have to get rid of anything. That’s your choice. Hey probationer, I got bad news for you. You got to find somewhere else to live.
That’s just the way it is, guys. Right. And I think it kind of makes sense. Otherwise then these guys are around alcohol, guns and so forth, just because somebody else can lawfully possess it. There’s consequences, right. And that’s the consequences, that you have to pick roommates that are going to also play along.
Where can you actually search in a shared house?
The next thing is, all right, we have somebody that’s playing along, and where can we search?
You can search those areas that are under the probationer’s control, and those areas where there is common authority. You cannot search areas under the exclusive control, dominant control, of the roommate, and that’s because they don’t lose their rights. So if the probationer does not have common authority to their roommate’s room, the probation officer, the police officer, whoever, cannot just go into that room and start looking around. Absolutely not.
I will tell you, it happens all the time. Okay? It does happen all the time. I’ve seen it with my own eyes, where cops think that it’s in the house, that means I can access it. That’s not the case. Okay? These people that are not on supervised release do not lose their rights.
How do you establish common authority?
Now when it comes to search and seizure, you’re going to have to establish common authority. If they have common authority, then you can search it. If not, then you cannot.
A good case on this is a Nevada Supreme Court case where probation officers went into a man’s room just because he lived with a probationer. But the cops did not articulate that the probationer actually had common authority over that room. So the evidence that they saw in there was suppressed and it was unlawful. And that is the right answer.
So you’re going to need some kind of connection. That’s where we’re at here.
As far as the scope, again, the good guy here, the roommate, he doesn’t lose his rights. And if you don’t like what’s in the house that the roommate has, I’m sorry, the probationer has to find another place. And you can only search those areas under exclusive control of the probationer, or those under the common authority of the probationer. Shared bathroom, kitchen area, living room area. But not those areas under exclusive control of the roommate.
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The short version
- The roommates of course don’t have to abide by any of this. Not one iota.
- If the roommate brings home a 12-pack, he’s good to go. He has nothing to worry about.
- The person who should get nervous is the probationer, because his probation can be revoked for being in that situation.
- You better find a better roommate that is a teetotaler, because you cannot be around alcohol. It’s just the way it is.
- If the roommate keeps his firearms, that’s his choice. The probationer is the one who has to find somewhere else to live.
- You can search those areas under the probationer’s control and those areas where there is common authority.
- You cannot search areas under the exclusive control of the roommate, because they don’t lose their rights.
- Shared bathroom, kitchen area, living room area, yes. The roommate’s own room, no, unless you can establish common authority.
- Cops think that if it’s in the house, that means I can access it. That’s not the case. It happens all the time.
Related from Blue to Gold
- Can Police Question You During a Probation Search?
- Consent to Search by Co-Occupants
- Can a Person Who Has an Access Code Give You Permission to Enter a Home?
This article is an edited transcript of Roadside Chat EP#913. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
