Diminished Expectation of Privacy if Your Roommate is on Probation

State v. Hurt, Filed December 13, 2007:

The Defendant was arrested and charged with a misdemeanor and felony count of possession of drug paraphernalia. The Defendant resided with a roommate that was on probation. A condition of the roommate's probation was that her residence was subject to search without a search warrant at any time of the day or night. Although home at the time, the Defendant did not see the law enforcement officials enter the residence.

After entering the apartment, the officers walked through the kitchen and living room. When the officers reached the living room, they saw drug paraphernalia on the coffee table. The officers told the individuals in the living room if they were nonresidents, they could leave the apartment. The Defendant admitted he was a resident and stayed. A police officer, who was called to the scene after the initial entry, placed the Defendant under arrest for possession of drug paraphernalia. The Defendant was searched incident to arrest, and the officer found a glass pipe with what appeared to be drug residue in the pocket of his sweatshirt.

The Defendant moved to suppress the evidence obtained during the probation search, arguing the evidence violated his Fourth Amendment rights because there was no warrant or warrant exception specific to him; therefore, the probation search and all evidence gathered as a result should be admissible only against his probationer roommate.

It is well settled that in order for law enforcement officials to Constitutionally enter and search a person's home, the search must be accompanied by a warrant. The search may also be constitutional if there is no warrant and the search falls within one of the accepted warrant exceptions, such as consent. In Illinois v. Rodriguez, the Supreme Court held that a co-occupant's consent was a valid exception to the warrant requirement as to his fellow occupants, even when the fellow occupant was not physically present and thus could not object to the search. 497 U.S. 177, 184-86 (1990).

In 2006, the Supreme Court reinforced the "co-occupant consent" exception to the warrant requirement in Georgia v. Randolph when it held that a co-occupant's consent to search common areas of a home in the absence of the other occupant was constitutional, and evidence gathered during the search could be used against the absent, nonconsenting occupant. 547 U.S. 103, 109 (2006). The Court explained its rationale for such a holding by explaining that such authority to give consent

rests on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the
common area to be searched.

Essentially, the recent Supreme Court decisions in Rodriguez and Randolph have held that law enforcement officials do not need the consent of all occupants of a residence in order to conduct a constitutional search. Simply put, if a single co-occupant gives consent to a search and the other occupants remain silent or do not otherwise express an objection to the search, law enforcement officials have free reign to search the common areas of the residence, commonly including hallways, kitchens and living rooms. Moreover, a co-occupant need not even be present or given an opportunity to object to the search:

the co-occupant who is not present at the door and does not flatly refuse the search at the time his fellow occupant provides consent "loses out" on his opportunity to exclude evidence gathered in a common area co-occupant consent search.

If, however, one of the co-occupants does indeed refuse consent to search, this refusal trumps any consent offered by any other co-occupant and the law enforcement officials may not constitutionally search the residence based on consent.

The North Dakota Supreme Court relied on Rodriguez and Randolph and held that the Defendnat "lost out" on his opportunity to exclude evidence gathered in the common area of the residence because he did not object to the consent to search given by the terms of his roommate's probation.

Moral of the story: chose your roommates wisely.