The Fourth Amendment to the United States Constitution protects citizens from unreasonable government searches and seizures. This means that for police to search a home, they either need to have acquired a search warrant, identified an exception to the rule, or received consent from a resident.
This consent has to be given voluntarily to the officer, who is not obligated to inform the person that they are allowed to refuse. Once consent has been given, the officer is free to search the home without probable cause or a warrant.
However, the officer may ask anyone they meet at the door of the residence for consent, whether it’s a roommate, guest, family member, or landlord. This is where things get tricky.
The Fourth Amendment applies to both owners and renters. Landlords cannot consent to a search of any part of an occupied rental property if the police do not have a warrant, except for communal places like a common area or laundry room. This is because the apartment is the home of the tenant rather than the landlord.
Circumstances do arise, however, where a landlord is legally authorized to allow the police to enter an apartment. If the police have a proper search warrant, the landlord is obligated to allow them to enter the rental property, even if the tenant is not there.
There are only three ways that it is legal for the police to enter a rental property to conduct a search:
Based on these three scenarios the police cannot enter your apartment without a warrant unless the tenant has given permission.
However, once a tenant has moved out of the apartment, the landlord becomes the actual possessor of the unit and has the ability to consent to a search. If the tenant has been evicted, each person’s ability to consent to a search will depend on the stage of the eviction process. If the tenant has not received written notice of the eviction, the landlord may not be able to provide valid consent. Once the eviction has concluded, the landlord becomes the actual possessor of the unit.
Many landlords struggle with the concept that while they are owners of a property, they give up certain rights to that property when it is occupied by a tenant.
Minnesota law says that a landlord can only enter your apartment for a business reason, maintenance or an emergency. If it is for a business reason or maintenance, the landlord has to inform the tenant via written notice ahead of time.
The courts have consistently ruled that a landlord emergency would generally be due to a water leak, gas leak, fire or other crisis that would cause damage to the property if it is not addressed immediately.
While a landlord cannot give consent to the police to search a rental property, another occupant, such as a spouse or roommate, can provide proper consent and allow the police to enter without a warrant.
The Supreme Court has ruled that any occupant of a residence can refuse consent, even if other roommates agree to a search. The Supreme Court ruled that if one or more roommates, who are physically present, object to the search, the police must obtain a search warrant. It is important to note, the objecting person must be at the residence to object in order for this protection to be available.
However, if only one roommate is present and consents to a search, the police are only allowed to search the common areas of the residence and the personal space of the person who gave consent, not the personal space of any other roommates who may not be home. So, if you share an apartment with a roommate, your roommate can consent to a search of the living room and kitchen but not your bedroom. Unless the police have a search warrant, any private areas are off limits to a search.
Unfortunately, the courts often determine your “expectation of privacy” on a case-by-case basis. To help prevent a search of your personal property, keep your room locked in case a roommate ever lets the police in. If your room is off-limits to your roommates and their friends, courts will often rule that it is off-limits to police as well.
In the event that a roommate, spouse, or other cohabitant consents to a search in your absence and it results in the police finding incriminating evidence, the search will likely be valid unless you can demonstrate that the police could not have reasonably believed that the cohabitant had legal authority over the area searched.
A child may have the ability to give consent to a search if they are old enough to understand the situation. If a parent is away and the child is the only person living in the home, they may have the ability to give full consent. However, if there are areas of the home to which the child does not have access, the police must talk to the parents before searching there.
A housekeeper generally cannot give valid consent to search a home in which they work. There may be an exception if the housekeeper lives in the residence and they consent to a search of only the areas that they control.
A hotel room is similar to primary residences for Fourth Amendment purposes. Unless they have a warrant, the police cannot search an occupied hotel room without the consent of the guest. Hotel employees cannot consent unless the guest has specifically given them the authority to do so.
Similar to landlords, however, hotel employees can give valid consent to a search of a hotel room that has been abandoned by the guest. If the guest has exceeded the permitted length of their stay, employees also can consent to a search.
If you think your rights were violated by police, write everything down about the incident so you don't forget any details. This can include witness names and phone numbers, and contact a lawyer as soon as possible.