Today’s question is one that I get all the time around the country and it’s important. So let’s go through it. Can you get consent to search a home from a spouse, even if the non- consenting spouse has left?
The answer is, “Yes you can.” You can use that consent even if there is a person who is non- consenting. Let’s say the wife will allow you to search the home, but the husband is like, “No way! You cannot search the house!” And he tells you, “My lack of consent is good for the next two years!” And then he goes to the store, he goes to work, or he gets arrested and is no longer at the residence.
And the question is, can we now go back to the wife and ask her for her consent, even though we know that her husband has already said no? And the answer is, “Absolutely yes!”
Here’s why. A spouse leaves the property for a lawful reason. For example, they get arrested. And that arrest was not done to remove them from the environment, but done for any lawful reason, such as for domestic warrants or whatever; or they go to the store to get a six pack of beer; they are taking the risk that the person that they leave behind will betray their trust.
All law enforcement officers need to conduct a consensual search on a house, apartment, etc., is valid consent from someone with apparent authority, and that a non-consenting spouse or roommate is not present at the time of the search. That’s the rule.
This comes from a Supreme Court case called California vs. Fernandez. Now, many officers are thinking about a case called Georgia versus Randolph, where the non-consenting husband was at the scene and said, “You cannot search my house.”
The wife said, “Yes.” The husband said, “No.” The police searched anyway. Well, we know the result of that case. You can’t do it.
But if the husband is going to leave his drugs, his illegal guns and whatever, at the house, and he leaves, he’s taking the risk that somebody with authority will give consent.
Finally, part of the rule is that you can only search those things which the consenting person has common authority over. That just makes sense.
If you’re getting consent to search common areas of an apartment from a roommate, the roommate probably does not have common authority over his roommate’s bedroom, but would have common authority over a shared bathroom, shared kitchen, living room, hallway areas, maybe a hallway closet, and so forth.
If the consenting person is the wife, she most likely has common authority over the shared bedroom, everything in the garage, in the attic, and in the basement. In fact, it’s probably going to be rare, that there’s something that is not available for her to allow to be searched, because usually spouses have common authority over the entire marital home.
There can be exceptions and you want to look for those, but generally speaking, the answer is that they have common authority because they have joint access, joint ownership, or control. We need one or more of those three things.
I hope this is useful for you for cops out there. Stay safe!