NationStates Jolt Archive

Here's the setup, in short. Two people live in a house - they are renting it (they're married, but seperated). They get in an argument and the police get called. When the police get there, the woman accuses her husband of cocaine use. The police ask if they can search the house. The husband says no. The people who own the house say no. The wife (who also lives there) says yes. The police take her consent and search - finding a straw with cocaine residue. The woman withdraws consent. The police (now with probable cause) go get a search warrant and return, finding cocaine. The guy gets charged.

The question before the Supreme Court: Can one occupant of a residence give consent to search over the objections of other occupants? Or do all occupants have to give consent in order to search?

It has long been held that, if only one occupant is home, their consent is enough (you don't have to go find other occupants). However, this case involves an incident in which both occupants were there, and only one gave consent.

It has also long been held that one occupant of a home cannot bar the guests of another occupant from entering. Could the police search be seen in the same light?

http://www.cnn.com/2005/LAW/11/09/scotus.search/index.html

(Not the best synopsis, but I can't find the other one I read right now).

So, here's the question (and debate): Who is in the right here?

Unlike the States, Germany has a law allowing policemen in cases of "Gefahr im Verzug", i.e. danger is passing away. This means that they can enter houses if called there or if they witness something amiss.

But then again, that wouldn't apply here, since cocaine use isn't punishable by German law. (Ownership is, but use itself isn't)

Unlike the States, Germany has a law allowing policemen in cases of "Gefahr im Verzug", i.e. danger is passing away. This means that they can enter houses if called there or if they witness something amiss.

Police officers can enter a house here if they have what we call "probable cause". For instance, if they smell smoke as if something is on fire, hear someone screaming, see blood through the window on the porch, etc., they can enter with no warrant.

However, in this case, there didn't seem to be any violence (at least not that I have seen mentioned) - it was just an argument. Thus, without someone allowing them in, they had no probable cause. From her statement on the cocaine, they *might* have been able to get a warrant, but then the guy could have stashed everything better, so they probably wanted to search right away by getting consent.

But then again, that wouldn't apply here, since cocaine use isn't punishable by German law. (Ownership is, but use itself isn't)

To use it, you pretty much have to own it - or at least someone does. That's a really silly law. It's like, "You can't own a slave, but you can use one..." Eh?

Ok, who voted other? Hmmmmm????

=)

To use it, you pretty much have to own it - or at least someone does. That's a really silly law. It's like, "You can't own a slave, but you can use one..." Eh?
Well, that depends on if ownership attaches during consumption. Otherwise a friend could let you snort a line of his without you ever having possessed it.

Back on topic, I'd say that since the Husband was there to say no, then the search shouldn't be allowed. Now if the woman had done the smart thing and waited till he had gone out the next day, then she could have rushed the officers through and the husband would be screwed.

I answered "for common spaces only", however this answer would only apply to roommates and the like. A husband and wife commonly own the whole house, and therefore either of them can give consent to search the whole thing. This is not the case for roommates.

kind of off topic . . . but Monty Python's Flying Circus rules! Go John Cleese!

I answered "for common spaces only", however this answer would only apply to roommates and the like. A husband and wife commonly own the whole house, and therefore either of them can give consent to search the whole thing. This is not the case for roommates.

My thinking is essentially the same.

I agree with Jello B., too. Good to see you again, Cat-Tribe.

My thinking is essentially the same.

I am leaning that way too, but then again I can see how other things could come into play.

For instance, some courts seem to view "spousal immunity" as being a way that a person could actually block their spouse from testifying against them. If we go with that precedent, couldn't a person invoke "spousal immunity" to keep their spouse from allowing their things to be searched?

And it does end up meaning that, if you live with someone with only common space, you have effectively given up your right to refuse a search.

I answered "for common spaces only", however this answer would only apply to roommates and the like. A husband and wife commonly own the whole house, and therefore either of them can give consent to search the whole thing. This is not the case for roommates.

I voted and agree the same...

I answered "for common spaces only", however this answer would only apply to roommates and the like. A husband and wife commonly own the whole house, and therefore either of them can give consent to search the whole thing. This is not the case for roommates.
I voted the same, but I do somewhat disagree with you on the common space in terms of husband and wife.

Say two people are married but with separate bedrooms? Not exactly the norm, I know, but it's still an important point to take into consideration. For instance, were my boyfriend and I living together in such a situation (married, of course), and he consented but they entered my private bedroom, I'd damn sure contest procedure, whether or not they found anything.

Simonist']I voted the same, but I do somewhat disagree with you on the common space in terms of husband and wife.

Say two people are married but with separate bedrooms? Not exactly the norm, I know, but it's still an important point to take into consideration. For instance, were my boyfriend and I living together in such a situation (married, of course), and he consented but they entered my private bedroom, I'd damn sure contest procedure, whether or not they found anything.From a legal perspective, until a divorce settlement is decided, the house in its entirety is commonly owned property.

From a legal perspective, until a divorce settlement is decided, the house in its entirety is commonly owned property.
Maybe it's different state-to-state, even working for a family attorney who serves some of the lower income bracket, I've never heard anything this ridiculously confused.

From a legal perspective, until a divorce settlement is decided, the house in its entirety is commonly owned property.

Two unmarried people (ie. roommates) can own a home together. That doesn't necessarily mean that all space is "common space", if they have decided that certain rooms are the domain of only one roommate.

Two unmarried people (ie. roommates) can own a home together. That doesn't necessarily mean that all space is "common space", if they have decided that certain rooms are the domain of only one roommate.
I stated that in the earlier post.

Gotta go w/the Common Space option here.

I voted "other" only because I think it really depends on the nature of the ownership/residency agreement. If three people live in an apartment, but only one lease was signed (ie, they are either all three parties to the same lease) then I think it's okay for one occupant's consent to be enough to search all rooms in the unit. If one roommate signed the lease and the other two just pay rent and bills through that roommate, then I think that roommate's consent should be required. In the case of a family-occupied unit, the consent of any family member over the age of 18 should be enough.

EDIT: Oh, yeah. Right now my roommates and I all sign separate lease agreements with our landlord. That means that I lease the common rooms and my own bedroom. In cases like that, the consent of the roommate with jurisdiction over the room in question should be required.

Olara']I voted "other" only because I think it really depends on the nature of the ownership/residency agreement. If three people live in an apartment, but only one lease was signed (ie, they are either all three parties to the same lease) then I think it's okay for one occupant's consent to be enough to search all rooms in the unit. If one roommate signed the lease and the other two just pay rent and bills through that roommate, then I think that roommate's consent should be required. In the case of a family-occupied unit, the consent of any family member over the age of 18 should be enough.

EDIT: Oh, yeah. Right now my roommates and I all sign separate lease agreements with our landlord. That means that I lease the common rooms and my own bedroom. In cases like that, the consent of the roommate with jurisdiction over the room in question should be required.
Wait.....house or apartment?
Shit, I'm doing it again. Nevermind, IM me, I've once again got questions as to you and Lawrence.

My reply here isn't based on how I think the 4th Amendment ought to be applied, but rather on how I think the Court will find. This was the part of teh story that stood out to me:Even Justice Clarence Thomas, who rarely speaks at oral arguments, was persuaded to step into the fray.

He twice asked Goldstein if it was acceptable for the wife to recover a hidden drug stash and give it to police, even if the husband objected. Goldstein conceded there would be no legal problem with that.
If that's really the case, if the wife could have just gotten the stash and brought it to the cops, then the issue of common space versus private space seems to be a bit moot. Whether or not she did is another point altogether--the cops had other options as well, including sitting in place until a warrant arrived and not allowing the suspect to return inside to potentially destroy evidence (which was the focus of another case a few years ago, as I recall). The fact that she could have done so means to me that the question of the legality of the search is sort of beside the point here, and that the drugs ought to be admissible.

In short, I think the Supreme Court is going to dodge the underlying question here, because it's easier to do so and they seem to have an out.

I answered "for common spaces only", however this answer would only apply to roommates and the like. A husband and wife commonly own the whole house, and therefore either of them can give consent to search the whole thing.

Not necessarily. If the legal rule is "common spaces only," the suppression ruling might come down to whether or not the husband can prove that evidence was found in an area, item, or furniture identifiably and exclusively "his." Thus, an office or even a personal dresser or closet should be out-of-bounds.

Otherwise, if two roommates both have their name on the lease or mortgage, wouldn't they be in the same boat as the husband and wife in terms of common ownership?

I know in many cases husbands and wives are assumed to have common ownership simply by virtue of their marriage... but that in itself seems like a legal doctrine long past its prime.

I know in many cases husbands and wives are assumed to have common ownership simply by virtue of their marriage... but that in itself seems like a legal doctrine long past its prime.
I'm pretty sure that it still applies, or at least it should. The reason for this is because even though a chair might be only used by the husband, it could still conceivably go to the wife in a divorce settlement.

Am I the only person wondering what the 4th amendment to the U.S. constitution has to do with Monty Python, a British show?



edit: incidently, I voted for the consent belonging to the owner.

edit: incidently, I voted for the consent belonging to the owner.

That's an interesting take on it. May I ask why? After all, in the case of a rental home, the stuff being searched through would not belong to the owner. Does signing a lease agreement equate to signing away your 4th Amendment rights to your landlord?

I answered "for common spaces only", however this answer would only apply to roommates and the like. A husband and wife commonly own the whole house, and therefore either of them can give consent to search the whole thing. This is not the case for roommates.
I take a similar reasoning to come to the opposite conclusion, that the action of one (the husband) in denying permission to search was sufficent to prevent the search (legally). If the husband had not refused to permit the search but had merely been mute then the wife's consent would be enough however he did not stand mute but positively asserted his right to privacy. If the object being searched for were a gun or a bomb I might feel a littel differently, however one member of a marriage does not have the power to waive the rights of all other members when those others have asserted those rights.

That's an interesting take on it. May I ask why? After all, in the case of a rental home, the stuff being searched through would not belong to the owner. Does signing a lease agreement equate to signing away your 4th Amendment rights to your landlord?


Well, in the U.S., it does in many cases. For instance, in an apartment/rental home, the owner retains many rights- the right to enter (depending on the state, they may not even have to notify you) to spray for bugs, do maintenance, etc. At a building I lived in (Florida), they usually knocked, but went in whenever they needed to. Since it is not your property, your rights are limited. In many ways, it would be like your car. Yes, it is your property, but the land you're parked on isn't yours, so your rights are not exclusive.

I guess it would depend on your lease if you were not the owner. But with two roommates, whoever's name was on the lease would have the upper hand in granting search rights. If both names are on the lease, then I would go with the "common areas" option.

Well, in the U.S., it does in many cases. For instance, in an apartment/rental home, the owner retains many rights- the right to enter (depending on the state, they may not even have to notify you) to spray for bugs, do maintenance, etc. At a building I lived in (Florida), they usually knocked, but went in whenever they needed to. Since it is not your property, your rights are limited.

These things are generally covered in the lease contract. You have to sign a piece of paper stating that you will allow the owner to enter, to spray for bugs, etc. Thus, you agree to let them do so. Is there a warning in most lease agreements that you also give up your 4th Amendment rights?

I guess it would depend on your lease if you were not the owner. But with two roommates, whoever's name was on the lease would have the upper hand in granting search rights.

I can't argue this. Of course, there is the matter of common law which counts verbal agreements as contracts in some cases. Thus, if you had essentially agreed to sublease part of your apartment to another....

Wow, this could get messy quickly.

But, in general, another person living there with no legal right to be there should not be able to consent to a search.

If both names are on the lease, then I would go with the "common areas" option.

Yeah, the more I think about it, the more I lean towards that option.

Well, in the U.S., it does in many cases. For instance, in an apartment/rental home, the owner retains many rights- the right to enter (depending on the state, they may not even have to notify you) to spray for bugs, do maintenance, etc. At a building I lived in (Florida), they usually knocked, but went in whenever they needed to. Since it is not your property, your rights are limited. In many ways, it would be like your car. Yes, it is your property, but the land you're parked on isn't yours, so your rights are not exclusive.

I guess it would depend on your lease if you were not the owner. But with two roommates, whoever's name was on the lease would have the upper hand in granting search rights. If both names are on the lease, then I would go with the "common areas" option.I am pretty sure in the entire US a search by the police lacking a warrent requires special circumstances or the consent of the occupant, not the owner. The 4th amendment right applies to the occupants, not the property owners, and while leases may allow property owners (or their agents) certain inspection and maintence rights of access these are not mutable to become the power to waive the right of the occupants to be secure against warrentless searches. Given the perversities allowed in certain jurisdictions of the "good faith rule", it may be that a search under the permission of the property owner would prevent the supression of evidence obtained from such a search, but it would not make the underlying search legal under the 4th amendment.

These things are generally covered in the lease contract. You have to sign a piece of paper stating that you will allow the owner to enter, to spray for bugs, etc. Thus, you agree to let them do so. Is there a warning in most lease agreements that you also give up your 4th Amendment rights?

Once again, it varies state to state. Actually, in most cases, you do not agree to let them do so. They are just legally bound to inform you that they retain the right to enter the premises. The paper you are signing is your acknowledging that you understand it is still their property. You can't say: no, I don't want to sign that, I'll take care of my own bugs and repairs. They will refuse to lease to you if you do.

The police can come to your door, and if you don't answer, the landlord can open it for them if he/she chooses.

Once again, it varies state to state. Actually, in most cases, you do not agree to let them do so. They are just legally bound to inform you that they retain the right to enter the premises. The paper you are signing is your acknowledging that you understand it is still their property. You can't say: no, I don't want to sign that, I'll take care of my own bugs and repairs. They will refuse to lease to you if you do.

The police can come to your door, and if you don't answer, the landlord can open it for them if he/she chooses.The first parafraph points to the reasons why a landlord retains the right of entry but has nothing to do with the second. Certainly a landlord can open the door to a rented dwelling for the police, however that does not mean an ensuing search by the police is legal. Leaving aside wilful ignorance on the part of the police, a landlord does not have the right to grant permission to the police to conduct a warrentless search of rented dwellings.


As for my earlier, I should like to point out that while the law as it stands in the US permits one member of a joint occupancy dwelling to consent to a legal search of that dwelling, the OP was asking not what the law was but who was in the right. I feel that one person cannot forfiet another person's rights even when those rights are jointly held. I feel it not acceptable for the wife's consent to abrogate the husbands asserted right to privacy, despite the state of the law.

If you have nothing to hide, then you have nothing to fear nor worry about. ;)

Once again, it varies state to state. Actually, in most cases, you do not agree to let them do so. They are just legally bound to inform you that they retain the right to enter the premises. The paper you are signing is your acknowledging that you understand it is still their property. You can't say: no, I don't want to sign that, I'll take care of my own bugs and repairs. They will refuse to lease to you if you do.


You still have the option of refusing. You can say, "I don't want to live somewhere that my landlord will walk in whenever they feel like it. Thus, I won't sign your lease unless you take that part out. I'll go elsewhere to live otherwise."

Yes, the landlord can refuse to lease you an apartment if you don't agree to his terms, but you can refuse to lease the apartment if he won't agree to yours. That's why there is a contract there in the first place - so that both parties agree to it equally.

Yes, the landlord can refuse to lease you an apartment if you don't agree to his terms, but you can refuse to lease the apartment if he won't agree to yours. That's why there is a contract there in the first place - so that both parties agree to it equally.

Neither party has complete freedom with a residential lease however. There are some elements that can be negiotiated, some rights/duties are required as a matter of law, and are therefore cannot be waived by amending the lease. So you really have to check local law to find out what is what.

It is possible therefore, that you can sign a lease stating that the landlord has no right to enter, but depending upon the status of local law, he can still go ahead and do it anyway, and the tenant will have no legal recourse.

however one member of a marriage does not have the power to waive the rights of all other members when those others have asserted those rights.
But if the husband's statement that he didn't want the search was what we based the decision on, it would by definition revoke the wife's right to invite whomever she wanted to to search the place. In other words, this decision would revoke another member's rights.