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Departments : Point of Law

Third Party Consent Searches

A new Supreme Court decision overturns some previous rulings on voluntary consent for search and seizure.

May 01, 2006  |  by Devallis Rutledge - Also by this author

One of the "firmly established exceptions" to the warrant requirement for searches and seizures is the "consent exception." If you have the voluntary consent of the suspect to enter a residence or to conduct a search, a resulting seizure of evidence will generally be reasonable under the Fourth Amendment (Schneckloth v. Bustamonte).

When the person you're going to use the evidence against is the one who gave valid consent, the situation is fairly straightforward. But what if the consenter is a third party? Under what circumstances does the consent of another suffice to make a search reasonable as to someone else? In a recent decision on this issue, Randolph v. Georgia, the Supreme Court has affirmed some of its prior rulings, but created a new one that overturns the existing rules in many jurisdictions.

Property Owners vs. Tenants

A consistent line of cases has held that while owners who rent their property to another may retain a contractual right to reenter during the tenancy for limited management purposes, the owner has no right to grant permission for police to enter to conduct a criminal investigation:

  • Operator of a boarding house could not authorize police to enter the suspect's room to search for and seize evidence of an illegal numbers operation (McDonald v. U.S.).
  • Hotel manager's consent for officers to enter a counterfeiting suspect's room was not valid (Lustig v. U.S.).
    • Although hotel maids, janitors, and repairmen have an implied right of entry to a guest's room to perform cleaning and maintenance, the assistant manager could not lawfully admit officers to search for a guest's narcotics (U.S. v. Jeffers).
    • Officers could not rely on a desk clerk's consent for entry into robbery suspects' motel room (Stoner v. California).
    • Landlord could not give valid consent for police entry into a rented house where an illegal distillery was found (Chapman v. U.S.).

      These cases establish that as long as the tenant has the right to occupy premises rented from another, police cannot obtain valid consent for entry from the property owner or agent. By contrast, where the tenant never had, or no longer has, a lawful right of occupancy, the owner has a right of re-entry and can effectively consent to police entry:

      • After check-out time, a motel manager can reclaim a defendant's room and permit police entry (U.S. v. Larson; U.S. v. Croft).
      • Once a motel manager locked out a guest for non-payment of room charges, the manager could admit police (U.S. v. Allen).
      • Even if it is his arrest that prevents the defendant from returning to a rented room by check-out time to reclaim his luggage or pay to extend his stay, the motel manager can reenter and permit police entry and search (U.S. v. Rahme; U.S. v. Huffines).
      • Where a motel manager repossessed a room that had been rented with a fraudulent credit card, the defendant never acquired a lawful right of occupancy, and so had no legitimate expectation of privacy in the room (U.S. v. Cunag).

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