Senior Staff Reporter (2018 – 2019)
One of the most fundamental rights granted by the United States Constitution and the Texas Constitution is the right to be secure in your home against unreasonable searches.
The Fourth Amendment states: “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”1 The Fourth Amendment is very clear that law enforcement may not search a home without obtaining a warrant, unless circumstances dictate that an exception to the search warrant requirement applies. There are several exceptions to the warrant requirement that have been repeatedly held to be constitutional through case law. The most common exception is consent to search.
Each tenant has a right to consent—or refuse to consent—to a warrantless search by police. In Georgia v. Randolph, the Supreme Court held that when two people each have authority over a shared area, like the living room in a shared apartment, each person has the right to consent or the right to refuse when a law enforcement officer asks to conduct a warrantless search.2 When one of the tenants is away from the space, the remaining tenant can speak for both parties under their shared authority. This reasoning applies equally to a situation where both tenants are physically present on the premises. When the consent given by one tenant conflicts with a fellow co-tenant’s refusal to consent, the refusing tenant’s Fourth Amendment rights cannot simply be disregarded. The shared authority over the premises guarantees that neither tenant’s authority is stronger than the other, “whether the issue is the color of the curtains or invitations to outsiders.”3
In order to effectively refuse a search, the refusing party must be physically present at the residence. In Fernandez v. California, the Supreme Court made it clear that a co-tenant must be physically present on the property of their residence to object to a search when it determined that a lawful arrest or detention that removes the co-tenant from the residence removes his ability to object to the search.4 Therefore, once a co-tenant has refused to consent to a warrantless search by police, the co-tenant must physically stay on the premises for the refusal to remain effective.
1 U.S. Const. amend. IV.
2 Georgia v. Randolph, 547 U.S. 103, 107 (2006).
3 Id. at 114.
4 Fernandez v. California, 571 U.S. 292, 295 (2014).