Back in January, I posted an entry about the way the police will try to get your to waive (give up) your Fourth Amendment rights and try to get you to agree to let them search your vehicle. They try to do the same thing with your residence, but it has its own special twists.
The English common law principle that "a man's home is his castle," is something we inherited and it is engrained in American law. The Fourth Amendment protects our "persons, houses, papers, and effects" from unreasonable, that is, warrantless, searches.
The police are aware of this higher expectation of privacy for homes as compared to cars, backpacks, and other "effects." They also know they need to show a judge they have probable cause (a "more likely than not" standard) that what they want to seize in the place they want to search is actually in that place.
Sometimes police will have reasonable suspicion (a level less than probable cause) that there is evidence or contraband in a house but just can't come up with the necessary probable cause. Sometimes, they don't even have reasonable suspicion, but they get a tip from an anonymous source so there is no way to confirm the tip's reliability. Or a crook who gets arrested on a case and is looking for a break tells the police that contraband is located in a certain house. Arrestees are presumed unreliable, so the information is not enough for a warrant.
Cops have enough to do without wasting time going to miscellaneous houses and trying to get permission to search them. Can you picture this? "Good morning, ma'am. Sorry to interrupt 'The Price Is Right,' but things were a little slow down at the station today so we were wondering if we could come into your house and do a random search for possible contraband?" Neither can I.
However, depending on their training and experience and any other investigation they are able to do, the police might use the information from the anonymous tipster or the arrested crook as a springboard to attempt what they call a "knock and talk," which is just cop jargon for trying to get a resident's consent to let them come in and go through your belongings.
Just like the request to search your car, the approach will be nice and friendly with some guilt trip phrases like "you want to cooperate, don't you?" or "if you don't have anything to hide, what's the problem?"
Warn Your Teenagers
If you have a child old enough to drive without an adult present, that child, as the operator of the vehicle, can grant the police permission t search it. Well, guess what? That same teenager can allow the police to come in and search your home if you aren't there!
Case law prevents a minor from allowing access to the parents' sleeping area, but the home-alone teenager has the authority to give the police free rein over their bedroom and all the "common areas" of the residence, meaning those areas that family members and houseguests have access to 24-hours a day: the living room, the family room, the kitchen, the main bathroom, the hallways, the laundry area, and the garage, especially if it is attached to the house.
The same authority over the common areas would include any live-in employees (maid, au pair, etc.) and any adult houseguests, especially if they have stayed overnight the previous night or intend to that night. Again, these persons could not grant permission to search the homeowners' bedroom.
Could a minor less than driving age grant the police permission to search in the absence of any adults? Possibly. In one child abuse case, permission by twelve-year-old was upheld by the appellate court. Any such search resulting in evidence being seized and charges being filed would certainly have to be hashed out in a suppression motion.
Let's say you decide that standing up for your constitutional rights isn't all that important to you and you let the police in. In that case, it is best to know some other options.
1. You can limit the scope of their search. Maybe you have an elderly parent or a sick child in an upstairs bedroom whom you don't want to be disturbed. You can tell the police you will permit a search of the downstairs but you do not want them searching the second floor. Say it loud so everyone within hearing distance can hear you.
If the police should go up there anyway ("We thought we heard someone calling for help" or some other excuse), remind them loudly that you limited them to the first floor. Should they discover something of evidentiary value to use against you, at least I can make an argument to have it suppressed and not admitted.
2. You can limit the length of the search. Once again, you are bending over backwards to show the police "how cooperative" you can be (trust me, if they arrest you, all that cooperation won't help you one bit), but you also don't want to be late for picking up the kids, a doctor's appointment, or any other time sensitive event. You should tell the police, again loudly so everyone nearby can hear it, that you have an appointment you need to leave for in x minutes so they can only search for x minutes. Anything they might find if they go beyond that time limit will not be admissible against you. Keep in mind, though, that if they do find evidence or contraband and arrest you, don't plan on making that appointment and call someone else to pick up your kids.
We all rely on the police to help in an emergency and want to trust them the rest of the time. Trust me, though, that if they come to your house and "knock," ring the doorbell, or shout through a screen door, and want to "talk" about obtaining consent to come in and search your home, they are not there as your friend. If they think there is something illegal in your house, or just aren't sure, tell them to go get a search warrant. It's you right!
If you have any questions about this topic or any of the those covered in previous blog entries, post your question in the Comment box or email me, criminal defense attorney Rebecca Ocain, at firstname.lastname@example.org.
Rebecca Ocain has been a criminal law trial attorney for over fourteen years.