In the criminal context, one person generally cannot consent to the search of the property of another. In order for a search to be legal, the person whose property is being searched must consent to the search, or the police must have a valid search warrant.

There are some exceptions to this rule. For example, if the person whose property is being searched has a reasonable expectation of privacy in the property, but has given another person control over the property, that other person may be able to consent to a search.

For example, if a tenant gives their landlord a key to their apartment and the landlord consents to a search of the apartment, the search may be legal, as the tenant has given the landlord control over the property and has a limited expectation of privacy.

However, in most cases, only the owner or lawful possessor of the property can consent to a search. If the police do not have the consent of the property owner or a valid search warrant, any evidence obtained during the search may not be admissible in court.

This case addresses the following issue: Georgia v. Randolph, 547 U.S. 103 (2006).

Can one co-tenant consent to a search over the objection of the other, present co-tenant?

This case dealt with the consent exception to the warrant requirement imposed by the Fourth Amendment. Id. at 109. Specifically, if two co-tenants are present and produce contradicting responses to a request for consent, which one controls? Id. at 108. The Court ultimately determined that because no reasonable person would feel welcome in such a situation, consent does not exist. Id. at 113. This decision is consistent with what the Court had hinted at in United States v. Matlock, 415 U.S. 164 (1974), which dealt with consent by one co-tenant when the other co-tenant was absent. Id. at 110.

The defendant in the underlying matter was attempting to rekindle a relationship with his co-tenant. Id. at 107. However, the reunion was going poorly, resulting in the police being summoned to the home twice. Id. The co-tenant accused defendant of using drugs and informed the police that there were drugs in the home at that moment. Id. The officer asked defendant for permission to search the home, and defendant emphatically refused. Id. The officer then turned immediately to the co-tenant and asked for permission, which she granted. Id. This search produced a drinking straw with powdery residue that was ultimately used to convict defendant of possessing a controlled substance. Id. at 107-08.

The Court began by outlining where the consent exception was clearly defined at law. Id. at 109. An occupant can consent to a search of his or her own property, as well as property which the occupant “shares common authority over” with another. Id. The key is what a reasonable person would interpret such consent to cover: a normal individual would feel comfortable entering a shared apartment when invited by one co-tenant, even without consulting with the other co-tenants. Id. at 111-12. Thus, a co-tenant takes such a risk when he or she agrees to live with another, and an absent defendant cannot complain about consent given by the co-tenant. Id. at 112.

However, the case here poses a much different scenario, because there is a clear disagreement between both co-tenants, each of whom is present. Id. at 113. Finding that a “co-tenant wishing to open the door to a third party has no recognized authority in law or social practice to prevail over a present and objection co-tenant,” the Court likewise found no power to consent so far as the Fourth Amendment is concerned. Id. at 114. Admittedly, this is a fine line: a co-tenant that is arrested and inside a squad car outside of the house is not “present” and cannot protest a co-tenant’s consent. Id. at 121.

In arriving at this conclusion, the Court noted that the decision was less about the conflict of the two co-tenants wishes, and more a measure of the competing interest of the refusing co-tenant’s right to privacy and government’s interest in obtaining evidence to combat crime. Id. at 115-16. For example, the Court noted a co-tenant that wished to assist police or distance him- or herself from criminal activity happening in the dwelling, had other options available. Id. at 116. The co-tenant could bring the evidence out of the home and to the police, or contact the police when the co-tenant is not there to protest. Id.