And nobody, including the court, has given a good definition of exactly who an “occupant” is under this ruling. That’s the main question of this thread.
Also, does the refusal last forever?
What if a year later those Georgia cops are called back to the house, only this time the husbands not there. Can the wife allow the search, or does the husbands refusal a year prior still stand?
I have to say – I agree with you. The courts need to supply a better definition (or one at all?) of “occupant” (thanks Gfactor for at least some clarification).
IMO – and I readily acknowledge that it’s only an opinion – spazattak has it right. At the same time, this is turning a blind eye to, say, the circumstance that anyone in the house is an “occupant”. Is a burglar an occupant? Of course not. Spouse? In (almost) every case, of course they are. Invited guest? I dunno…I’d think so. I guess that at some point, more case law will form precedent and we’ll have a better answer.
And that’s the debate of the OP. At some point theres going to be some hair splitting that may allow suspects to destroy evidence (i.e. FLUSH) while the police are getting a warrant.
I can see that a spouse would have equal rights by marriage, a domestic partner by it being their legal address (receives mail, pays rent, etc.). But what about a guest? What about residents who have no legal right to live there, but do so only by the grace of the owner? You wouldn’t believe how many calls I’ve been to that were domestic disturbance calls that turned out to be a parent arguing with their adult “kid” about drug use. Kid owns nothing, pays no rent or bills. Homeowner parent asks officers to come in and remove dope she know is hidden in the basement.
Under this ruling the dead beat kid has the right to halt the search.
What happens when a homeowner has a long-term “guest”? How long is “long-term”? When does “residency” begin? What happens when the police ask the person who opens the door if they can search the house, but don’t inquire as to other people living there? What if, upon asking, they are lied to?
Yeah; I think the “conservative” comment kinda set me off a bit. Sorry about that.
I’d think a mailing address definitely counts. Doesn’t matter if it’s an adult son/daughter who doesn’t own or pay anything. They live there, it’s their residence. Under 18? Parent wins. This distinction is made all the time and I don’t see the difference, really.
The guest situation? As I said, I dunno. In general, my opinion is that their refusal is valid, particularly if they’re invited (extended stay just strengthens it). Beyond that, take it on a case by case basis? I realize that’s not satisfactory, but again – this is just my opinion and I can’t cite any relevant precedent.
So? dead-beats have rights too!
Seriously, the 4th Amendment reads:
It refers to the “right of the people” not just the “upstanding citizens”. Any one of the people has the rights set out in this Amendment, even if a deadbeat. And secondly, the 4th doesn’t just apply to houses - it protects “papers and effects” as well. Even if the deadbeat kid doesn’t own the house, he can have “papers and effects” there, which are protected by the 4th.
But the ruling doesn’t seem to just give them veto power over searching their papers & effects, it seems to give them the power to stop a search anywhere on the property, even if their person/papers/effects aren’t involved.
Let’s say one of my adult sons still lived at home. Had his own bedroom, etc., but doesn’t pay any rent, bills, & his name isn’t on the deed.
Say my wife & I play our Starland Vocal Band records too loud and the neighbors call the police. While the cops are here I tell them my wife is hidding drugs in our bedroom, and give them permission to search. My wife waves her 4th Amendment rights and says “sure, go ahead and search our room, but only our room. Nowhere else” It’s our room, not the kids. He doesn’t have access to it. Yet under the ruling it seems he would have the ability to stop a warrantless search of our room even though we consented to it. It isn’t his room, he has no access to it, NONE of his effects are in there. How is the search in this case violating his rights? I don’t believe my wife & I waving our rights and having our room searched equates waiving his rights to not have his room/effects searched.
But you & the ruling seem to say it is.