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Searches of shared spaces: can cotenant consent?

Very few criminal appeals go all the way up to the U.S. Supreme Court. Indeed, very few cases of any type get a place on the Court's crowded docket. 

One of the main reasons the Supreme Court takes a case, however, is to resolve a split in the lower courts. And that is why a federal appeals court ruling in a recent Missouri child pornography case played a role in the Supreme Court's decision to take a case probing the limits of permissible searches of shared dwellings.

In the Missouri case, the 8th U.S. Circuit Court of Appeals held that a wife's consent for law enforcement officers to search a shared dwelling was sufficient. Even if her husband initially objected to the search, the 8th Circuit held in that criminal appeals case, the search was permissible once the husband was gone.

Other circuits have taken the opposite view. In a case that concerns an alleged lab to manufacture methamphetamine, the 9th U.S. Circuit Court of Appeals held that a co-tenant's refusal to allow a search meant that there was no consent to search, even if the co-tenant is absent from the premises.

In short, the circuits are split on the extent to which someone who shares a dwelling with another person can consent to search the shared space.

The U.S. Supreme Court earlier held, in 2006, that an explicit refusal by a co-tenant who is present to allow a warrantless search of common premises must be honored. To ignore such refusal violates Fourth Amendment protections against unreasonable search and seizure.

But the lower courts have not agreed on how this ruling should be interpreted in other cases. As a result, the Supreme Court will be stepping in again to clarify what types of searchers of common dwellings are or are not allowed.

Source: "California robbery case leads Supreme Court to reconsisder police search laws," Sacramento Bee, Michael Doyle, May 20, 2013

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