homeWelcome, sign in or click here to subscribe.login
     


 

 

Real Estate


print  email to a friend  reprints add to mydjc  
Andrew Bergh
Andrew Bergh

September 18, 1997

Unwarranted searches

By ANDREW BERGH
Special to the Journal

Can the police search your home without a warrant? Sure, as long as you say it's okay. But consent, legally speaking, can be an elusive thing. In State v. Walker, for example, a consent-to-search form signed by a Grays Harbor County woman proved to be worth less than the paper it was written on.

The origin of the Walker case is a drug bust of sorts involving a student named J.W. (His full name wasn't disclosed given his juvenile status.) After being caught at his middle school with a bag of marijuana, the youthful offender told the police that he got the pot from the house where he lived with his aunt and uncle. Doing his relatives no favors, J.W. also said there was more marijuana at the home.

After J.W. was taken to the police station, his aunt, Ellen Walker, arrived a short time later. Following some discussion about the marijuana, Ellen signed a form allowing the police to search her home without a warrant.

As Ellen was being transported home by the police, she saw her husband Gus as he drove by in the opposite direction. Gus, who likewise had good eyesight, saw his wife in the patrol car and promptly turned around to follow it.

Three cars soon converged at the Walkers' residence. First to arrive was the patrol car carrying Ellen and the officer who talked with her at the police station. Next to arrive was a second patrol car carrying two more officers. And Gus, all by himself in the family car, was a not-too-distant third.

At this juncture, it's important to know the exact sequence of events. After exiting the patrol car, the officer and Ellen started walking toward her front door. By the time they reached it, Gus had pulled into the driveway, left his car and begun talking with the other two officers. It was only then that the officer and Ellen physically entered her home. Gus, meanwhile, learned from the other two officers that his wife had agreed to a search of their home. Although presumably unhappy about this development, Gus didn't voice any objection.

Once inside, Ellen directed the officer to the bedroom closet, where he seized two bags of marijuana. Predictably, the Walkers soon faced marijuana possession charges in Grays Harbor County Superior Court.

As the best defense is a good offense, the Walkers moved to suppress the evidence. Their Fourth Amendment rights were violated, they urged, because the police had searched their home without a search warrant. Gus, on the one hand, claimed he wasn't bound by his wife's consent. Ellen meanwhile claimed that her signed consent was invalid because the police also should have obtained her husband's consent before searching the home.

As it turned out, the Walkers batted .500. Gus got to walk, the trial court said, because his constitutional rights were violated by the warrantless search. But the evidence was admissible against his wife, said the court, who later found Ellen guilty of the drug charge.

Two appeals followed. Ellen appealed her conviction, claiming the marijuana should have been suppressed. The state also cried foul, claiming the evidence should have been admissible against Gus.

Since I know the suspense is killing you, I won't delay telling you what happened.

It's true, the appeals court said, that as one of its cohabitants, Ellen could have lawfully consented to a search of the house if Gus had never shown up. This is so, the court said, because one assumes the risk that another cohabitant may permit a search of a commonly shared area in his or her absence. But where the equal cohabitant is present and able to object, the police must get consent from both occupants for the search to be valid.

The issue thus became whether Gus was present and able to object at the time of the search, which in turn explains why the sequence of events was so critical. If Ellen and the officer had physically entered the home before Gus arrived on the scene, the marijuana seizure would have been valid. But since Ellen and the officer had not quite reached the front door when Gus arrived, the police should have procured his consent too. Gus's failure to object was irrelevant, the appeals court said, because the police should have affirmatively requested his consent once he was present.

True, the Walkers got off on a technicality (if only by a few seconds). But as a general rule, the Fourth Amendment bans warrantless searches by the police. And when an overriding interest like sanctity of the home is involved, even law-abiding types would probably agree the state should carry a high burden of persuasion regarding the propriety of a warrantless search.


Seattle lawyer Andrew Bergh, a former prosecutor and insurance defense attorney, now limits his practice to plaintiff's personal injury cases. He fields questions via email at andy@berghlaw.com.


Previous columns:



Email or user name:
Password:
 
Forgot password? Click here.