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Fourth Amendment Waiver and Roommates

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  • 03-30-2009, 12:53 PM
    ererckerdeet
    Fourth Amendment Waiver and Roommates
    My question involves criminal law for the state of: IN

    Supervised probation, petty offense. I own my home and recently had my fiancee move in with me. She is not subject to any waivers.

    It's my understanding that I cannot waive HER rights for her by allowing law enforcement to search HER property.

    Anyone else in a similar position and have any experience? Anyone know any case law regarding this issue?

    Thanks!
  • 03-30-2009, 01:30 PM
    BOR
    Re: Fourth Amendment Waiver and Roommates
    Here is a recent case on such from SCOTUS. You can also click on the Knights case in (a):


    http://www.law.cornell.edu/supct/html/04-9728.ZS.html



    Although it does not address such search as you outline, having a roommate does not limit the paramaters of such otherwise authorized search. If that were the case, all a probationer/parolee has to do is hide any contraband in a borderer's room.

    You can not waive her rights, only she can do that, but rooming with a person under a conditional release will not exempt her even if she objects, as I understand the law?
  • 03-30-2009, 02:19 PM
    ererckerdeet
    Re: Fourth Amendment Waiver and Roommates
    It appears the US Supreme says even if I have waived my rights, the roommate (fiancee) has her rights, and if she denies entry then the search may not occur.

    Georga v Randolpf March 22, 2006
    (in part)
    But nothing in social custom or its reflection in private law argues for placing a higher value on delving into private premises to search for evidence in the face of disputed consent, than on requiring clear justification before the government searches private living quarters over a resident's objection. We therefore hold that a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.

    Anyone disagree?
  • 03-30-2009, 02:26 PM
    BOR
    Re: Fourth Amendment Waiver and Roommates
    I am familiar with this decision already, and it adresses "consensual" entries.


    http://www.law.cornell.edu/supct/html/04-1067.ZS.html
  • 03-30-2009, 02:35 PM
    ererckerdeet
    Re: Fourth Amendment Waiver and Roommates
    Okay, makes sense. Thanks! :)

    So I voluntarily waived my right to be free of warrantless search and seizure of my person and home while on probation, giving law enforcement an invitation to search my property.

    My fiancee resides with me and has equal rights to the dwelling.

    She is physically present and refuses to permit entry for a search.

    Her refusal supersedes my previous voluntary waiver, rendering a warantless entry and search unreasonable and invalid.

    (regardless of if law enforcement forces their way in and searches anyway, any contraband they may find would be inadmissable)

    Correct?
  • 03-30-2009, 02:43 PM
    BOR
    Re: Fourth Amendment Waiver and Roommates
    Quote:

    Quoting ererckerdeet
    View Post
    Okay, makes sense. Thanks! :)

    So I voluntarily waived my right to be free of warrantless search and seizure of my person and home while on probation, giving law enforcement an invitation to search my property.

    If such an agreement was entered into as a condition of probation, you have to submit to such search.

    Quote:

    My fiancee resides with me and has equal rights to the dwelling.

    She is physically present and refuses to permit entry for a search.

    Her refusal supersedes my previous voluntary waiver, rendering a warantless entry and search unreasonable and invalid.
    Her refusal does not trump the right of them to search. Did you sign such an agreement as a condition of probation?
  • 03-30-2009, 02:50 PM
    ererckerdeet
    Re: Fourth Amendment Waiver and Roommates
    BOR, I did not *have* to sign the paper, thats why it said voluntary. Whether it would have resulted in the judge sentencing me to 60 days instead, well, thats water under the bridge.

    I did agree to such a search, she did not, and has every right to be free of such an intrusion.

    They do not have a 'right' to search, I gave them permission to.

    So they could still search, but could not prosecute her as she declined the search, they could only prosecute me?

    If she claimed total ownership of any contraband, she had declined the search so the evidence would be suppressed?

    (sigh, being a peaceful 'conscientious objector' to antiquated cannabis laws is sure a pain)
  • 03-30-2009, 03:09 PM
    BOR
    Re: Fourth Amendment Waiver and Roommates
    Yes, you did not have to sign it, but you did.

    Example, if you are a felon and not permitted to possess a firearm, no one in the house is permitted to, as I understand it.

    If you signed such form as you say you did, I do not think she has any standing to refuse the search of her property. I could be wrong?

    Even if found in HER room, you could possibly be charged with "constructive possession" and your probation could be revoked.
  • 03-31-2009, 02:59 AM
    KeyWestDan
    Re: Fourth Amendment Waiver and Roommates
    This is something to ask an attorney.

    However, any common area is subject to search. If she had her own room or a closet that is locked and you do not have a key, it can't be searched absent her consent or a warrant.

    If you have her hold something for you, her room is searched, she would be busted and possibly you too.
  • 03-31-2009, 06:04 AM
    ererckerdeet
    Re: Fourth Amendment Waiver and Roommates
    Hmm sounds like its time to play it safe - instead of sorry! :)

    The situation seems almost exactly like Georgia v Randolpf in which consent is given by me but refused by her - but in these parts a search warrant or 6 months of vindictive hassling by the probation department would more than likely be the end result. Really makes ya proud to be an American...

    Thanks for the good advice and good references, I apprecate it!!!
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