Can Someone I Live With Consent to a Drug Search of My Room?

August 9th, 2018 by Tad Nelson in Drug Crime

Drug charges often succeed or fail based on the legality of how the police discovered the alleged illegal narcotics. We all know the Fourth Amendment to the U.S. Constitution protects against unreasonable searches conducted without a warrant. In plain terms, this means that if the police show up at your front door and do not have a warrant, they cannot simply barge in and start looking for drugs.

But what if you live with someone else? Here, the law is much trickier. According to the U.S. Supreme Court and the Texas Court of Criminal Appeals, a “third party” may consent to a search if they have “actual authority over the place or thing to be searched.” For example, if you share an apartment with someone else, your roommate can consent to a drug search of the common areas, such as the living room.

It should be noted that it does not necessarily matter who owns the property in question. The legal test is not ownership, but rather “common authority.” And even “actual authority” is not always required. As the Court of Criminal Appeals explained in a 2010 decision, Hubert v. State, when a police officer “reasonably, though erroneously, believes that a third party purporting to provide consent has actual authority over the place or thing to be searched, apparent authority exists and the purported consent from the third party can serve to make the search reasonable.”

Grandmother’s Consent Dooms Defendant at Trial

Here is a recent example from here in Houston of how these legal principles apply in practice. In this case, the defendant lived in a house with his grandmother. She owned the home. One day, the grandmother called 911 because the defendant was “acting erratically” and threatening her.

A Houston police officer arrived at the scene. What happened next was the subject of dispute at the defendant’s trial. The officer said he asked the grandmother for permission to enter the defendant’s room. As he approached the room, the officer said he detected a “heavy presence of narcotics.” He then exited the house and asked for the grandmother’s written consent to conduct a search. The search uncovered illegal narcotics.

In contrast, the defendant testified the officer attempted to gain access to his room before seeking permission from his grandmother. The defendant therefore asked the trial judge to suppress the evidence gathered in the search. The judge denied that motion but instructed the jury that if it determined any evidence was obtained from the defendant’s room without the grandmother’s consent, it should disregard such evidence.

The jury convicted the defendant of possession of a controlled substance with intent to deliver. On appeal, the defendant argued the judge should have issued an additional instruction expressly asking the jury to determine whether the grandmother gave consent before the search. The Texas 14th District Court of Appeals rejected this argument, however, and affirmed the conviction.

Speak with a Houston Drug Crimes Defense Lawyer Today

If you are accused of a drug crime, you must act quickly to preserve your legal rights. The first thing you need to do is contact a qualified Houston criminal defense attorney. Call the Law Offices of Tad Nelson & Associates at (281) 280-0100  today if you need help right away.

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