Do police have the right to enter a home if one spouse gives consent but the other does not?
UPDATED: August 18, 2012
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Generally, law enforcement officers do not have the right to enter a house without a search warrant when the wife gives consent but the husband does not. The most pertinent case regarding this subject is a U.S. Supreme Court case, Georgia v. Randolph, 547 U.S. 103 (2006). In that case, a wife consented to police entering the family home without a warrant. Her husband did not. Both parties were present when police came to the home. Each made their position clear when the police arrived. The court ruled that one co-occupant's consent to a search does not negate another co-occupant's right to refuse consent.
Consenting to Search in Absence of Co-Occupant
What happens if the situation is different? Say the party refusing consent to search is absent when the police arrive. This occurred in an earlier U.S. Supreme Court case, United States v. Matlock, 415 U.S. 164 (1974). In Matlock, one co-occupant of a shared home consented to an entry by law enforcement officers.
The law enforcement officers conducted a search of a common area in the home. The search turned up evidence that incriminated a second co-occupant. Later, the second co-occupant faced criminal charges. He challenged his sentence. The second co-occupant said the search was illegal because he had not given consent. The court did not agree—it ruled that the search was legal.
Recent technological advances pose questions about the legality of law enforcement officer’s entry and searches. What if a co-occupant is absent when law enforcement officers arrive? Yet at the time the law enforcement officers come, the co-occupant refuses consent via a phone conversation, text, or audio or video recording. What if a co-occupant refuses consent in a language other than English, or in a manner that cannot be understood because of a speech impairment? It is not clear how the court would view such situations.
Legal and Illegal Searches
The fight over the legality of a search is often more important than the fight over the legality of an entry. Georgia v. Randolph indicates that when one co-occupant consents but another refuses, law enforcement officers do not have the right to search a shared home. Law enforcement officers may have the right to search even if one co-occupant refuses.
A search may be legal if law enforcement officers have probable cause to believe a crime occurred or they possess a valid search warrant. Law enforcement officers may also conduct a legal search if circumstances present a exception to the warrant requirement.