Homes or apartments often are occupied by more than one person. When can an individual consent to a search of a jointly occupied residence? In the past, the Supreme Court has held that any person who is a joint occupant of a residence can consent to a law enforcement search of the shared residence. However, if the co-occupants are both present, and have a disagreement as to whether to let law enforcement conduct a search, the police cannot enter and conduct their search so long as a physically present co-occupant objects.

The Supreme Court further elaborated on this question when issuing a decision in the Fernandez case earlier this week. In that case, the suspect in a domestic violence dispute objected to a search of the residence. He was thereafter removed from the residence by the police, based upon the allegations of domestic violence. Police returned to the residence an hour later and questioned the suspect’s girlfriend, the victim, as to her consent to a search. She did provide consent to search, and a search was conducted. The Supreme Court upheld the search as constitutional, because the suspect was no longer at the residence at the time she provided consent to search and the search was performed, and also because he had been removed from the home for legitimate reasons. Had the suspect been removed from the home in an illegitimate manner, the search would have been invalidated.

The decision appears to focus on the concept of “presence”, but does not clearly elaborate on what exactly presence means. Does the non-consenting party need to be present at the door, or on or near the premises for his objection to invalidate any consent by a consenting co-occupant? The opinion appears to indicate physical presence at the door would be necessary, but stops short of making that perfectly clear.

About the Author: 
Kimberly Diego is a criminal defense attorney in Denver practicing at The Law Office of Kimberly Diego. She obtained her undergraduate degree from Georgetown University and her law degree at the University of Colorado. She was named one of Super Lawyers’ “Rising Stars of 2012” and “Top 100 Trial Lawyers in Colorado” for 2012 and 2013 by The National Trial Lawyers. Both honors are limited to a small percentage of practicing attorneys in each state.  She has also been recognized for her work in domestic violence cases.