Attorney James K. Minick
Under the 4th Amendment, individuals are given protection by the Constitution to be free from unreasonable searches and seizures in their homes. In order for police to be able to search a home, they are faced with the following options: acquire a search warrant, identify an exception to the 4th Amendment, or get consent. Although the general procedure is for police officers to obtain a search warrant, many police officers will attempt to avoid this step by simply asking for consent to search the premises. Because many people assume that refusing to give consent to a police officer can be seen as a sign of guilt, many people freely give their consent. Unusually, the occurs even in situations where incriminating evidence will be found.
Consent
In order for a police officer to get consent to search a residence, the police officer must receive permission from a person who the police officer reasonably believes has the authority to give consent. This consent has to be given voluntarily to the police officer, but the police officer is not obligated to inform the person that they are allowed to refuse. Once consent has been given, the police officer is free to search the home without any showing of probable cause or existence of a warrant. Although this entire situation seems a little backwards, it becomes even stranger when a person invites another individual into their home as a guest.
Guests
When you invite a guest into your home, you allow that individual the right to enter and occupy your home for a certain period of time. As such, in the eyes of the law, this person has the authority to give consent to a police officer to search, even though you may not have expressly given them this permission. In Illinois v. Rodriguez, the Supreme Court ruled that a police officer only has to reasonably believe, that the person giving consent has the authority to give that consent. Based off that case, police are not required to clarify whether the individual who gave consent actually lives there, but rather, the police officer just has to reasonably believe that the person can give consent. Although this ruling by the Supreme Court makes a police officer’s job easier, it can also be seen as encouraging less then scrupulous behavior by the police by not requiring them to ask any basic questions to establish the individual’s authority.
Contact Us
If you have been charged with a crime after the police have been given consent to search your residence, it is important to consult with an experienced criminal defense attorney that can help zealously defend your case. Contact Us at Minick Law, P.C. for a free consultation on your case.
