You cannot waive my rights

Posted on October 22, 2005 by Pete Guither

Via TChris at TalkLeft comes this:

The [Connecticut State Supreme] court ruled 3-2 that opposition to a search by one resident invalidates permission granted by another, which is contrary to most case law on the issue nationwide. Defense lawyers predict the ruling will be troublesome for police, and could apply not only to attempted searches of homes but also to searches of businesses and cars with several occupants.

Although this was a ruling in relation to the state constitution, it has relevance to an upcoming Supreme Court case dealing with the same issue. (Georgia v. Randolph, Scott)
The Supreme Court has already ruled in US v. Matlock that if two people control a home, the one at home can give consent to search, and the absent one is out of luck. So if you have a roommate and you’re not there, your roommate can consent without a warrant and anything found can be used against you. However, Georgia v. Randolph, the issue is when both are home and one consents to the search while the other refuses — ie., can the officers “shop around” for someone in the house that will give consent?
The New York Court of Appeals in People v. Cosme ruled:

“an individual who possesses the requisite degree of
control over specific premises is vested in his own right
with the authority to permit an official inspection of
such premises and . . . this authority is not circumscribed
by any ‘reasonable expectation of privacy’
belonging to co-occupants. Whether the principle is
characterized as an ‘assumption of risk’ or a relinquishment
of the ‘expectation of privacy’ guaranteed
by the Fourth Amendment, the fact remains that where
an individual shares with others common authority over
premises or property, he has no right to prevent a search
in the face of the knowing and voluntary consent of a
co-occupant with equal authority.”

My view is that nobody else can waive my rights and consent to a warrantless search of my person, house, papers or effects, simply because they are a roommate, spouse, or otherwise share a location with me. I get that notion from the Constitution of the United States, which says, in part:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I’m hoping that the Supreme Court will rule in favor of the 4th Amendment in Georgia v. Randolph, but they haven’t had a very good track record with that amendment.
Regardless, if you share your home with someone, you might want to stop by Flex Your Rights with your roommate(s) and maybe pick up a copy of “Busted” while you’re there.

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