Can a guest give police permission to search a home?

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Can a guest give police permission to search a home?

I was at a friend’s house and the cops were looking for someone. I do not live there. They asked to search and I said I guess. They found pipes used to smoke drugs. Is my giving consent as good as the owner giving permission or is the the owner the only one that can give permission?

Asked on December 31, 2011 under Criminal Law, Arkansas

Answers:

Russ Pietryga / Pietryga Law Office

Answered 9 years ago | Contributor

 Two possible issues with your question.  First, can you give consent to search the residence? Second, was your consent voluntary?

  Valid consent to enter may be given by the owner, or one entitled to possession of the premises, or one with common control or joint acess to the premises for most purposes.  

       

Utah Courts apply a two-pronged analysis in determining if defendant’s consent was freely and voluntarily given.  Specifically, defendant’s consent is valid only if: (1) The consent was given freely and voluntarily; and (2) The consent was not obtained by police exploitation of a prior illegality. 

 

1st Prong

           

In determining whether defendant’s consent was given freely and voluntarily the Utah Courts scrutinize both the details of the detention, and the characteristics of the defendant.

The totality of the circumstances must show consent was given without duress or coercion.In other words, a defendant’s will cannot be overborne, nor may their capacity for self-determination be critically impaired.  With respect to a defendant, evidence of minimal schooling, low intelligence, and the lack of any effective warnings about their rights should be considered.  Further, the Utah Courts have stated that factors which may show a lack of duress or coercion include: (1) The absence of a claim of authority to search defendant by the peace officer; (2) The absence of an exhibition of force by the peace officer; (3) The peace officer merely requests to search; (4) The cooperation of the defendant; and (5) The absence of deception, fraud, deceit, misrepresentation, or trickery by the peace officer. 

 

2nd Prong

 

            Utah Courts, conducting an exploitation analysis, evaluate the relationship between the peace officer’s misconduct and the subsequently discovered evidence to determine if excluding the evidence will effectively deter future illegalities. An exploitation analysis requires looking at the facts of each case.  When Utah Courts review the facts in an exploitation analysis, three factors are of particular relevance, they are: (1) The purpose and flagrancy of the peace officer’s illegal conduct; (2) The presence of intervening circumstances; and (3) The temporal proximity between the peace officer’s illegal detention and the defendant’s consent.



 


 



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