Lets take our hypothetical friend Jim. Jim owns a house and allows Bill to stay with him. Bill has a separate bedroom and Jim allows him to use the common areas of the house.
Unbeknownst to Jim, Bill is a bad guy. Commits mopery and the like. The police knock on the front door when Bill is not home and asks Jim for consent to search the house for things related to Bill. Jim agrees.
How far can the police go in searching things that are clearly Bill’s stuff? Can they search Bill’s bedroom? Can they search a closed container that Jim identifies as Bill’s? Can they shuffle through articles of clothing located in the common area that are identified by Jim as Bill’s clothing?
If you consent to an unwarranted search, the cops can look through pretty much anything and everything. That’s why you should NEVER, EVER consent to a search w/o a warrant, because the warrant will at least specify where they may search and what they’re looking for. Otherwise, it’s just a fishing expedition.
Even if they can’t legally do it, my WAG is they’d ask Bill if they can search the house without asking if it’s his house and then conduct the search and let the lawyers sort out the details if they find anything. It’s funny how many people, even bad guys, will think they’re totally in the right and let cops search them, their house, their car etc, like it’s a challenge. It’s a strange mentality. I’ve had plenty of times at work where I have someone creating a scene and I’ve had to ask them to leave, when they don’t I tell them that I’m going to call the police if they don’t. Nearly every time, their response is ‘fine, go ahead’. Even when I explain to them that when the police come, they’re going to be escorted out and their only choice is whether it’s going to be with the cop’s hand on their shoulder or them in handcuffs.
A few years back my ex MIL was at my house while I was at work. Someone in my neighborhood was burning leaves and the cops were nosing around trying to figure out who it was. They rang my doorbell, asked my (now) ex-MIL if she was burning leaves. She said no and they said ‘mind if we come in and take a look’ and she consented. All they did was walk in, look around and walk back out* and that was it (see footnote). I later explained to her that she should have said no. All she had to do was say ‘sorry, it’s not my house, if it makes you feel better you can look over the fence into the backyard and you’ll see I’m not burning leaves, but even if I was, I wouldn’t be doing it in the house’. Hell, she could have just walked them into the backyard. My guess was that as long as they were talking to her, they figured they might as well ask if they can take a look around, who knows what they’ll find. And, FTR, they didn’t know it wasn’t her house.
*I have two very, very hyper dogs, puppies at the time, and one of them nipped the cop. A few minutes later another cop suddenly showed up to “recheck” the premises for burning leaves. My guess is that the first cop said he was bitten and the second one wanted to see if this was ‘OMG they have pitbulls trained to fight’, or ‘suck it up, they’re puppies’. Nothing ever became of it. But I did explain to her that you never, ever, ever consent to a search, even of your own car. You never know what they’re going to find. Your friend that had a vicodin slip out of her back pocket. Those prescription NSAIDS that you keep in the bottom of your purse, you don’t need those getting found because you were speeding.
Interesting unrelated sidenote. My uncle (a cop) said when they would do a raid on a drug house one of the things they would do before going in is shut off the water to the house, that way they couldn’t start flushing things.
My guess would be that if you invited them in, they’d see what was out in the open. Much like during a traffic stop they can see what’s on the floor of your car, on your back seat, in your open purse etc, but they can’t reach in the open passenger window to move some paper and see what’s under them.
In your hypothetical, I’d guess they could see what’s on the kitchen table, but not, say, open a drawer or enter a closed bedroom.
There was a recent case near me where the police searched the apartment of a pair of suspects based solely on the OK of the landlord. The local paper mentioned it was permitted due to the specifics of the rental.
Me neither. That’s why I asked if someone can point me in the right direction. Here’s the basic question:
Jim agrees to allow the house to be searched knowing that it is for Bill’s stuff. The police walk over to a jacket, ask Jim if it is Bill’s jacket. Jim says yes. The police search the pockets of Bill’s jacket and find stuff that ultimately convicts him of murder.
Do consent searches allow a search of Bill’s jacket? The police know it is Bill’s jacket in the common area of the home where he was staying. The jacket was in plain view, but the stuff in the jacket was not.
If Jim doesn’t have common authority over the jacket, then Jim can’t consent to a search of that jacket. US v. Matlock.
If the police know that it’s Bill’s jacket and Jim doesn’t have authority to consent to a search of it, they can’t reasonably rely on his consent. If it wasn’t entirely clear, then
That’s some good stuff. It’s not exactly on point, but the inference is pretty clear, at least in my mind. If Jim doesn’t have ownership of the jacket, and the police know that fact, then the consent search is invalid.
I guess an argument could be made that since Bill left the jacket in a common area of the home which Jim undoubtedly had control of, that his reasonable expectation of privacy was not violated by a consent search of the jacket. I just don’t think there is a case on point talking about that.
On the old 1970’s tv show "Columbo’, detective Columbo was notorious for finding ways to search places and question suspects. Ex. Leaving someones house but accidentally opening a closet door and discussing the contents. Knocking over say a lamp or plant then helping to clean up.
If my memory of The Bill is correct, the answer is no but anything in the open is fair game. The operative phrase being, “I could not help but notice…”
If I were a cop, I would pick up the jacket and ask Jim “is it OK if I look in the pockets?” Jim says “go ahead” and I find the murder weapon with Bill’s fingerprints on it.
The DA could argue for a “good faith” exception to the rule, since the cops could reasonably assume that Jim had the authority to give consent to the search, since he didn’t say “that isn’t my jacket”.
Not ownership: common authority, which is a lower bar. Say Jim regularly goes into Bill’s jacket to get his keys or to borrow some cigarettes, or throws it on every once in awhile to take out the trash, and Bill knows that:
[QUOTE=Frazier v. Cupp]
Petitioner, in allowing Rawls to use the bag and in leaving it in his house, must be taken to have assumed the risk that Rawls would allow someone else to look inside. We find no valid search and seizure claim in this case.
[/QUOTE]
[QUOTE=Matlock again]
more recent authority here clearly indicates that the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared. In Frazier v. Cupp, 394 U. S. 731, 394 U. S. 740 (1969), the Court “dismissed rather quickly” the contention that the consent of the petitioner’s cousin to the search of a duffel bag, which was being used jointly by both men and had been left in the cousin’s home, would not justify the seizure of petitioner’s clothing.
[/QUOTE]
My understanding of the law is very much in line with Jimmy’s. Absent certain very specific sets of facts,* Matlock effectively kills any reasonable expectation of privacy in common areas of a home.
In my view, the bedroom is off-limits, as is a locked box. The clothing is fair game. Of course, it’s not my field.
Yes it is. There is no evidence to suggest that Bill ever let Jim use his jacket. It was in the hallway closet. The police asked clearly if the jacket was Bill’s and Jim affirmatively stated that it was Bill’s jacket.
The police then shuffled through the jacket pockets and found the incriminating evidence.
Although none of the cases have suppressed evidence in this situation the implication is that there must be “common authority” over the item. I don’t believe that Jim has this common authority over an item as personal as a jacket.
If we were roommates, for example, I don’t think that it would be assumed that we could go through each other’s clothing or wallets. I don’t believe that I could give authority to a person to search your clothing because I don’t have the right to do so myself.
I also think that you would have a reasonable expectation of privacy for the contents inside your coat when it is left in your home.