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    Colorado Domestic Violence Law – Searches – Consent

    Colorado Domestic Violence Law: Consent to Search – Co-Tenancy

    The 4th Amendment protects people from unreasonable searches and seizures. The 4th Amendment is triggered by a government intrusion into a place where somebody has a reasonable expectation of privacy. Once the 4th Amendment is triggered, the search — the following search must be reasonable. To be reasonable, Judges like to see agents get judicial permission, or a search warrant, before going inside a home.

    Warrantless searches and seizures are, presumed to be unreasonable. However the 4th Amendment uses the term the operative word – reasonable… reasonable search and seizure is the key.

    Obtaining consent to search the premises from an individual who has the authority@is a reasonable exception to the warrant requirement. With voluntary consent from someone who has actual or apparent authority over the place to be searched, police authorities do not need probable cause to search or a search warrant.

    First the consent has to be voluntary. The person giving the consent has to voluntarily consent. Consent is determined from the totality of the facts and circumstances. Looking at a personfs age, his education; is he under the influence of narcotics or alcohol? And finally, was the person told that he had the right to refuse consent? Finally, the consent has to be given by someone with either actual or apparent authority over the place to be searched.

    Actual authority asks: does the person actually own or control the place to be searched? For example, you own your home; you can obviously consent to a search of your home. Or, maybe two people might share a place where there is a reasonable expectation of privacy, a husband and wife. Either the husband or the wife could probably consent to a search of their home.

    The laws of Co-tenancy are often involved in many domestic violence investigations,

    What follows is an interesting fact pattern that drives homes the issue:

    Two people occupying a home. One person consents to a search while the other one does not. A husband and wife that shared a house. This husband and wife are in a child custody dispute. The police are called to the house. Let’s add that the wife, angry at her husband, tells the police there is drug evidence inside the house and “consents” to a search. Her husband is also present and he adamantly refuses any consent.

    Again the operative word for a 4th Amendment search is reasonableness. In this actual case, the United States Supreme Court said that a warrantless search of a shared home for evidence over the express refusal of consent by a physically present resident is not reasonable. In this particular case, in this particular situation, the Supreme Court held that you have to obtain a warrant.

    Where two people are present and both have actual authority over the place to be searched, a home for example and one person consents but the other refuses. The law seems to suggest that a warrant is needed. If, however, there is an emergency circumstance – a so called exigency, for example, if there is no time to get a warrant, if the police do not have time to get a warrant, then they may be able to avoid getting one.

    For example, if there’s probable cause to believe the time necessary to get a warrant will result in the destruction or removal of the evidence, then the police can forgo the need for a warrant.

    In domestic violence situations, if the police have a reasonable belief that somebody inside — that their lives are in danger, then, of course as long as the police can articulate that basis, they can go inside and in that particular case there obviously wouldnft be time to get a warrant.

    One final note: what happens here if a consenting party is present and a potentially non-consenting party is absent? Here, the United States Supreme Court has said there is no need to obtain a search warrant, so as long as there is no evidence that the police physically removed a potentially objecting party from the home for the sake of avoiding the objection. Then, the consent from one party should be sufficient.

    Georgia vs. Randolph, a recent Supreme Court decision, is the case upon which these rules are based… the following is the Wikipedia entry describing the case and the decision.

    Georgia v. Randolph, 547 U.S. 103 (2006),


    Respondent Scott Randolph and his wife, Janet Randolph, separated in late May 2001, when she left the marital residence in Americus, Georgia, and went to stay with her parents in Canada, taking their son and some belongings. In July, she returned to the Americus house with the child; the record does not register her motive for returning.

    On the morning of July 6, she complained to the police that, after a domestic dispute, her husband had taken their son from the marital residence, and when the police reached the Randolph house, she told them that her husband was a cocaine user whose drug-use habit had caused the family financial troubles. She mentioned the marital problems, saying that she and their son had only recently returned after a several weeks’ stay with her parents. Shortly after the policemen arrived, Scott Randolph returned, explaining to them that he had removed their soon to a neighbor’s house, worried that his wife might again take the boy out of the U.S.; Scott Randolph denied using cocaine, and countered that it was his wife, Janet, who used illegal drugs and abused alcohol.

    One of the policemen, Sergeant Murray, went with Janet Randolph to reclaim the Randolph child from the neighbor; when they returned, she renewed her complaints about her husband’s drug use, and volunteered that there were “items of drug evidence” in the house. Sergeant Murray asked Scott Randolph for permission to search the house; he refused. The sergeant then asked Janet Randolph’s consent to search the Randolph house, which she readily gave, and then led him to an upstairs bedroom she identified as Scott’s, where the sergeant noticed a section of a drinking straw with a powder residue he suspected was cocaine. He then left the house to get an evidence bag from his patrol car, and to call the district attorney’s office, which instructed him to stop the search and apply for a search warrant. When Sergeant Murray returned to the house, Janet Randolph withdrew her consent to searching the house. The police took the drinking straw to the police station, along with the arrested Randolphs. After obtaining a search warrant, they returned to the Randolph house and seized further evidence of illegal drug use, on the basis of which Scott Randolph was indicted for possession of cocaine.

    At court, Scott Randolph moved to suppress the evidence, as products of a warrantless search of his house, unauthorized by his wife’s consent over his express refusal. The trial court denied the motion, ruling that Janet Randolph had common authority to consent to the search.

    The court’s decision

    In a 5-3 opinion written by Justice David Souter, the Court held a co-resident could refuse consent to a police search, even if another resident consented, specifically:

    The question here is whether such an evidentiary seizure is likewise lawful with the permission of one occupant when the other, who later seeks to suppress the evidence, is present at the scene and expressly refuses to consent. We hold that, in the circumstances here at issue, a physically present co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him.

    The Court’s decision distinguished its previous rulings in Illinois v. Rodriguez, 497 U.S. 177 (1990) and Matlock. In Rodriguez and Matlock the police obtained voluntary consent from a co-occupant at the residence, and found evidence implicating another resident who was not present when the police obtained consent. The Court said that the present case was different from the previous two in that the co-resident was not present to refuse consent to the search. In Rodriguez the co-occupant who later objected to the search was asleep in a bedroom within the residence; in Matlock the later-objecting co-occupant was located in a nearby police vehicle.

    by Colorado Domestic Violence Lawyer.

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    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
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