Article by Daniel A. Levy, Esq.
As a New Jersey criminal defense attorney, I am sometimes asked if the landlord or a roommate can let police in to an apartment to conduct a search. This is an interesting and complicated issue, and a recent Appellate Division case discusses it. As we point out below, police are generally allowed access to places when they are let in by others who already have lawful access (like a roommate, and a landlord), but this right is limited.
Can police enter my home without a warrant?
First, we would like to point out that police generally are not allowed to enter people’s homes without a warrant. If police knock on a person’s door to conduct an investigation, but they have no search warrant, then the homeowner does not have to let them in. They certainly do not have to allow the police to search the house or apartment. Many people think that police will find it suspicious if they do not allow a search, but if the person is charged with a crime, the fact that they exercised their constitutional rights cannot be held against them. There are exceptions, however – for example, they may enter if they are chasing an escaping criminal, if they have probable cause to believe that evidence if being destroyed, if they need to enter to save a person’s life, etc. These exceptions are beyond the scope of this article, but click here for some more information.
The major exception to the warrant requirement is when the occupant gives consent to the search. For example, if police are investigating a crime and they knock on a suspect’s door, they may ask to be allowed into the house, and they may ask for permission to conduct a search. If the person consents to the search, then no warrant is required, and any evidence that they find could be used against the person.
Roommates and landlords giving consent to search
In the case of State v. Wright, decided in the Appellate Division on July 25, 2013, the court addressed the issue of a roommate or landlord giving the police consent to search. In that case, the defendant lived in an apartment with his girlfriend. The girlfriend requested that the landlord enter the apartment to repair a leak. While there, the landlord saw drugs on a table in plain view. Concerned, the landlord called the police after the girlfriend had left. When police arrived, the landlord let the police in to the unit and he showed them the drugs in plain view. The girlfriend then returned and the police asked her if they could search the rest of the apartment, and she consented to the search. The police then found an illegal gun. The defendant was later arrested for possession of the drugs and gun.
The defendant filed a motion to suppress the evidence, arguing that the police never had valid permission to search his apartment. The Appellate Division, citing to the doctrine of “third-party intervention”, upheld the search. They reasoned that the landlord was given valid permission by the girlfriend (the defendant’s roommate) to enter the apartment. He never did anything beyond the scope of that permission – he saw the drugs in plain view. They also reasoned that the landlord had the authority to allow the police to enter and observe the drugs in plain view. Finally, they held that the girlfriend, being a tenant at the property, could validly give permission for the police to search the whole apartment. All of the evidence was therefore admissible.
I do want to point out my disagreement with the court’s reasoning. Once the landlord had repaired the leak and left, he no longer had permission to return to the apartment without permission. Even though he had keys, he would still need permission from the tenant to enter or make an emergency entry to repair something critical. Neither was the case here since he already finished the repair. I do believe that the landlord exceeded his authority in letting the police into the unit.
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