Question: Can a co-tenant give consent to search a shared home even though the suspect has previously refused consent?
Quick answer: Yes. If the suspect is not physically present to dispute the consent, a co-tenant may subsequently consent to a search of the premises.
Facts: In 1975, defendant Thomas Shrader began to stalk his ex-girlfriend, and he eventually shot and killed her mother and a family friend. Shrader was sentenced to life with the possibility of parole for the murders. He was paroled from prison in 1993 and finished parole in 1999. In 2008, he obtained his ex-girlfriend’s phone number and began threatening her by phone.
In 2009, the ex-girlfriend received a 32-page letter from Shrader discussing delusions he had about the 1970s murders as well as opportunities he had to kill her. The ex-girlfriend and her husband contacted the FBI, which sent agents to the home Shrader shared with his aunt to execute an arrest warrant. Shrader admitted there were guns in the home, but he refused to consent to a search of the house. Agents took him into custody and waited for his aunt to come home. When she arrived, she consented to a search of the house. Law enforcement recovered three firearms.
Why the case is important: The agents did not violate the Fourth Amendment by obtaining the aunt’s consent to search. Law enforcement doesn’t need a suspect’s consent to prove that a search was consensual. Proof can come from consent by a third party who has common authority over the premises. Here, Shrader’s aunt also lived in the home, so she had the authority to consent to a search. Shrader’s earlier refusal did not remain in effect indefinitely. In order to override his aunt’s consent, Shrader had to be physically present and expressly refusing consent at the time his aunt gave permission to search. And because the arrest warrant was a lawful reason to remove Shrader from the home, he couldn’t show that the agents removed him only in an attempt to get consent later from his aunt.
Keep in mind: If multiple co-tenants are present when you want to search a home, all it takes is one co-tenant’s refusal to prevent the search. But if only one tenant is present, and that tenant consents to a search, there’s no constitutional violation even if the other co-tenants had previously refused consent. Be careful, though, not to abuse this rule by removing the objecting tenant as a pretext to get consent from a co-tenant.
to read the entire opinion.