Anyway, my question is for any legal eagles out there. If a person gives the police the okay to search their residence without a search warrant does that okay extend to a piece of rental property in the rear of the house that is currently being leased to another person?

Stephanie

P.S. Oops, I forgot to mention that this would be U.S. Law

P.P.S (Yeah, I'm a blond) I tried to goole this question and I got a bunch of legal mumbo jumbo that is hard to understand and sounds contradictory.

[This message has been edited by Stephanie (edited January 19, 2006).]

Edited, noticed I forgot the important "NOT"

S

In answer to the question you ask, the basis of the law states that a tennant has an expected right to privacy, that's guaranteed under the US Constitution and the state's laws have to concur, they cannot over rule the Constitution. Basically, this states that NO, the owner of the property CANNOTwaive the tennants rights against a warrantless search of the premisis. The owner can waive his own rights and let the police search whatever he desires without a warrant, but the rental property is off limits, the police would need a warrant. Even if the police had a warrant to search the premisis of the owner they would need a seperate warrant to search the rental property even if the rental property was attached to the main structure being searched, i.e. a garage apartment or even just a room in the main structure. It should be noted that this has been backed by the U.S. Supreme Court, so it is Constitutionally valid. However, there are some exceptions and those are:

1) The question arises in the legal definition of tennant. The Supreme Court has never ruled per se on the matter but the lower courts have ruled that tennant means a contract, either verbal or written, exists and that the contract states that either money or favors are exchanged from the person leasing the property and the person owning the property. In other words, if the person living there is paying rent or cutting grass, cleaning the swimming pool, maintaing the property then he is considered to be a tennant and has the right to privacy. If the person is living there rent free, then there is no right to privacy and the waiver of the property owner DOES extend to the rental property.

There is another factor to consider here. What if the person living there rent free is a family member. IF the person living there rent free is a member of the immediate family, son, daughter etc. and is considered to be a minor then there is NO expected right to privacy and the waiver extends to the rental property. IF the person is an immediate family member and is considered an adult, then the expectation of privacy exists and the waiver DOES NOT extend to the rental property.

2) Regardless whether or not the person living in the rental unit is paying rent but has an agreement with the owner in which the owner guarantees NO a reasonable right to privacy does not exist then the waiver DOES extend to the property.

3) If, while searching the main structure, the person who the police are looking for runs from the main structure into the rental unit he is renting, then the police have the right to follow him into the rental unit. This is commonly known as the hot pursuit law.

4) If the person who rents the unit is standing directly outside the rental unit is arrested then the police have the right to search the rental unit as it is considered to be under his direct control at the time. This is the search incidental to arrest law, which states the police have the right to seach the person being arrested and the area within their immediate control. In a case like this, immediate control would normally be construed as the first room you would enter.

5) If the police determine that while they were on the premisis there was a crime being committed in the rental unit, ie the smell of marijuana, crack or crystal meth coming from the house or anything in plain sight, or if it was determined that a person's life was in immediate danger the police have the right to enter.

Now for the street law code of ethics lesson. The easy way around all of this....not that I have ever done this, but so I've heard.... call the dispatcher and tell them to stand by for a 911 life threatening emergency call in regards to the premisis in question. (See the second part of rule five).

In short, if in doubt, get a warrant. Hope this answered your question.

Peace,
Scott

"Similarly, a landlord is not considered to be in possession of an apartment leased to a tenant, and therefore lacks authority to consent to a search of leased premises."

BUT:

"A tricky twist is that the consent in these types of cases will be considered valid if the police reasonably believe that the consenting person has the authority to consent, even if it turns out they don't."