The Fourth Amendment of the United States Constitution and the New Jersey State Constitution protect citizens against unreasonable searches. They guarantee that people have the right to privacy in their persons, houses, papers, and effects. Homes are particularly protected spaces under these constitutional guarantees.
So in order to search a person’s home, the police are generally required to get a search warrant. This is a court order that a judge issues to authorize law enforcement officers to search a person or a location, which can include a home, for evidence of a crime. A warrant is based on “probable cause” that evidence is located at the specified location.
But one well-recognized exception to the warrant requirement is consent. A search conducted by consent does not require a warrant based on probable cause. In a search of a home, the US Supreme Court has said that in certain circumstances, a third party, namely a person besides the owner or person who lawfully occupies a residence, can validly consent to a search.
The first permitted situation is when a third party has the actual authority to enter the premises. For example, a roommate consenting to a search of the living room. He or she has the actual authority to enter into the living room and therefore can allow officers to search the area without the consent of the other roommate.
Another example is when an officer relies on a third party’s “reasonable apparent authority.” In other words, if a third party’s conduct “reasonably portrays” that he or she has the authority to enter the premises, an officer can rely on such behavior and search a home based on consent. Recently in a New Jersey Supreme Court case, State v. Cushing, the court was faced with a situation where the consent exemption was tested in both ways.
On June 24, 2011, a police officer from the Bridgewater Township responded to a telephone call from a person reporting suspected marijuana in a single-family home in the township. When the officer arrived, the caller identified herself as the daughter of the owner of the house, who was not home at that time. The daughter explained that she was at the house that day to remove her mother’s twenty-six-year-old grandson who had been living with his grandmother for twenty years. The daughter told the officer that she had power of attorney over her mother’s household affairs, but she did not provide proof of that – and the officer did not ask for it.
The daughter also told the officer that the grandson, the defendant, had failed to pay rent, and after looking around the house, she found plants that she believed to be marijuana. The officer then entered the house, with the consent of the daughter, and discovered the marijuana plants. No evidence was touched, but the officer informed his supervisor of the need to apply for a search warrant. Thereafter, the police officer got it and seized marijuana and drug paraphernalia from the grandson’s bedroom. He received multiple charges related to possession of controlled substances and intent to distribute.
The State Supreme Court found that the grandson had an “expectation of privacy” in his bedroom because of the grandmother’s lack of common use of it and her recognition of his exclusive control of that space. This meant that only he had the ability to consent to a search of his bedroom and interior space. The daughter did not have that authority.
Also, the high court held that the officer’s reliance on the daughter’s “apparent authority” was unreasonable, because he failed to ask adequate questions at the scene, before he followed the daughter into the grandson’s room and peered into his closet. According to the Court, the officer was required to get information about the exclusivity of the use of, and access to, defendant’s bedroom. Because he failed to do so, he could not reasonably rely on what the daughter’s told him. Omar Bareentto is a 2016 Rutgers School of Law graduate and a former contributor to the Rutgers Business Law Review. He collaborated with me on this blog.