Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
A question from an officer in Ohio. Officers have tried an arrest warrant at a suspect’s house several times with no answer. They see people coming and going who say they are friends, they have the key and the access code, and they are there to feed the animals. The friends consent, officers go in, and the suspect is not there.
Hey guys, this is Anthony Bandiero here, attorney and senior legal instructor with Blue to Gold Law Enforcement Training, bringing a roadside chat. I am actually in Austin, Texas. Just got done teaching Texas DPS, Austin PD, and a few other agencies as well. So, just wrapping up the class, I had a little bit of time to answer some questions.
This question comes from an officer in Ohio. Basically says, all right, recently myself and other officers attempted to serve an arrest warrant at a suspect’s residence. Multiple occasions. The guy is not answering. The guy is apparently not home.
Despite these efforts, what happened here is we saw some people coming and going from the house. We made contact and these people say, yeah, we’re friends of the suspect, and the suspect gave us permission to come into the house in order to take care of the animals. So they have the access code, the key and so forth. They do say that the suspect is not home. The cops are not sure if that’s true or not.
And they asked for permission from these people, the friends, to enter the home. They gave consent. The cops entered the home. They searched for the suspect. He in fact was not home.
And now the question is, did they do the right thing?
The answer is yes. But there is a caveat here.
What is common authority?
So what we’re talking about here is something called common authority. Common authority is when two or more people have the authority to allow you to enter or search a place or a thing.
So clearly the suspect has the authority, but also, has he given authority to somebody else? Here he gave the authority to the friend.
Does a babysitter have common authority over the house?
Now, the next issue that’s going to come up here though is scope.
Does the babysitter have common authority over the house to some degree? The answer is yes. They have some kind of dominion and control over the living room, maybe the kids’ room. But they’re not going to have dominion and control mostly over the owner’s bedroom, over the safe, over the private bathroom. But they may have common authority over the refrigerator.
So the point is, what do you reasonably believe they have access to? What do you reasonably believe they can do?
Now also with the babysitter, you have another scope issue, which is, do you think they’re allowed to actually invite people into the home? Most babysitters are not going to be allowed to invite their friends over. So this is where the court would probably want you to ask, hey babysitter, are you allowed to have friends over? And they’re like, no, no, they’re very strict, they don’t want me to have any friends over. Then you shouldn’t be asking them to invite you in, because they’re not allowed to have anybody else inside the house.
Can the friends invite officers in?
Now let’s turn to the friends here. Do they have the authority to enter the house? The answer is yes. They have common authority.
Do you think it’s reason to believe that they can invite other people into the house? Yes, sure. Why can’t they bring their best friends to go check on the animals and feed them and water them and take them out and so forth? I know you’re not their best friend, but at the end of the day, they can choose to have whoever they want with them.
With these facts, there’s no reason to believe that other people cannot enter the house. With their authority, they have the key, they have the access code. They didn’t say anything like, oh yeah, he would kill me if he knew I let anybody else in. They’re not saying that. They’re like, yeah, you can come in and check it out.
Where can you search for the suspect?
Now, the next thing with scope is, where do you search for the person? You can only search those areas where they have authority over.
So maybe they say, yeah, the door’s closed to the bedroom, and you’re like, oh, so what’s this? You guys go in there? Oh, no, no, no. That’s his bedroom. The animals are not allowed to go in there.
Well, if that’s the case, you shouldn’t be in there. Which is probably where he could be. But in order to enter that, you’re not going to be able to enter that bedroom under common authority, under their consent.
What you would need there is a reason to believe the person is presently home.
When can you serve an arrest warrant inside a home?
So, which is another rule I want to talk to you about. When can you serve an arrest warrant?
You can serve an arrest warrant when it’s valid. Obviously you have an arrest warrant, and you have probable cause that this is their house. We have that. And you have a reason to believe that they’re currently home.
So, do you have a reason to believe they’re currently home? Well, it seems like you don’t. Because A, the guy’s not been answering the door. B, they’re there to actually take care of the animals. Why would they be there if homeboy is at his own house taking care of his own dogs?
So I don’t think you actually have it under these facts. You don’t hear anything while you’re in there. You don’t see anything. There’s not like a lit cigarette that’s still kind of burning while you enter the house. Things like that. His car is not out front.
You should have a reason to believe that he’s currently home. It’s not a high standard, but it is a standard. If you don’t have that, I don’t think you have the authority to search the house for him. That’s what I teach.
At the end of the day, I think it’s a really good scenario. I like the officers reaching out to me, trying to run it past me. At the end of the day, they did the right thing in my view.
The short version
- “Common authority is when two or more people have the authority to allow you to enter or search a place or a thing.”
- The friends had it. Key, access code, and a job to do inside the house.
- Scope is the caveat. A babysitter has the living room, maybe the kids’ room, maybe the refrigerator. Not the owner’s bedroom, not the safe.
- Second scope question: can they invite anyone in at all? “Most babysitters are not going to be allowed to invite their friends over.”
- Here they could. “They can choose to have whoever they want with them.”
- Nothing in their answers suggested a limit: “They didn’t say anything like, oh yeah, he would kill me if he knew I let anybody else in.”
- You search only where their authority reaches. The closed bedroom the animals never enter is not yours on their consent.
- To go further you need reason to believe he is presently home. No answer at the door, friends feeding the animals, no car out front, no lit cigarette. “It’s not a high standard, but it is a standard.”
Related from Blue to Gold
- When Can You Do a Protective Sweep With an Arrest Warrant?
- Can Police Enter a Locked Room to Arrest a DV Suspect?
- Consent to Search by Co-Occupants
This article is an edited transcript of Roadside Chat EP#825. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
