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Who can consent to a police search of private property?

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In the world of criminal law, the Fourth Amendment to the U.S. Constitution is of paramount importance. This legal provision affords property owners protection against unlawful searches and requires police to obtain a search warrant if consent to a search isn't offered. When police fail to heed this legal foundation, any evidence collected from an illegal search could be thrown out when defending against criminal charges during trial.

Not long ago, the U.S. Supreme Court weighed in on a case that has serious implications for the Fourth Amendment. This recent case, Fernandez v. California, addresses situations in which one occupant of a home refuses to allow a police search, but a different occupant offers consent. The justices ultimately decided in favor law enforcement in allowing searches when at least one legal occupant of a residence allows police in for a search.

By issuing this ruling, the nation's high court rolled back a decision handed down in 2006. According to the earlier case, police would not be allowed to enter a residence if one occupant offers consent and the other doesn't. In offering dissent related to the more recent case, one justice noted that the ruling allows law enforcement to work around the warrant requirement.

In siding with the majority, Justice Alito noted that denying police the ability to search when one person offers consent infringes on that person's right to control property. Regardless, this decision adds a layer of complexity to certain aspects of criminal defense. Without knowledge of case law, an individual unfortunately may not know whether or not a police search is being conducted legally.

Source: ABA Journal, "Cops may search home when suspect objects but girlfriend later consents, Supreme Court says," Debra Cassens Weiss, Feb. 25, 2014

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