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Raleigh Criminal Attorney Answers the Question “Can A Renter say no to a search by the police?”

Howard Kurtz - 11/14/2017
Image of residential landlord agreement - Kurtz & Blum

As a criminal defense attorney, I research issues of law on a daily basis. Many years ago law school trained me to find relevant caselaw to support any argument or defense I advance on behalf of my clients. The more caselaw I have on my side, the harder it will be for a judge to find against me. 

Many times, things that are common knowledge to me are otherwise unknown to the general public. 

This lack of knowledge by the general public only hurts their cases sometimes. Each month, I will go over an issue of criminal law that may be helpful to you. 

This month, I will answer the question “As someone that rents an apartment, can I deny consent to search my apartment to a police officer?” 

Renter: “Can I say no to a search by police?” 

Someone who rents an apartment might think that because they don’t own the apartment, they have no rights to assert. WRONG! As long as you are a lawful occupant, you are within your rights to deny an officer’s request to search your apartment. At that point, it is up to the officer to either get a search warrant supported by probable cause or he must have a valid reason for not obtaining a search warrant. 

There are specific reasons that an officer can have to avoid getting a warrant. Consult a criminal defense attorney for further details. 

“The officer said that if I don’t consent, he will just get a search warrant. I should just consent to the search, right?” 

No! 

There is nothing wrong with making the police get a search warrant. 

There are several reasons why they are asking for consent: 

  1. It is easier for them to get consent from you than to go to a magistrate and get a search warrant. They don’t need a search warrant once you say yes to the search. 
  2. They may not have enough probable cause to get a search warrant so getting consent to search from you may be easier. 
  3. It is easier for them to get consent than doing anything else! 

Why would you make it easier on the police to gather evidence against you by consenting to a search? 

“Can the landlord consent to a search of my apartment?” 

No! 

The United States Supreme Court decided this issues all the way in 1961 in the case, Chapman v. U.S., 365 U.S. 610 (1961)

In that case, officers acted without a search warrant but with the landlord’s consent to search a person’s rented house in that person’s absence. The Court found the search unconstitutional. “If I say no, and they still search, does that mean that they violated my rights?” 

Not necessarily. Every case is fact specific. 

Only a trained and experienced criminal defense attorney can tell you whether your rights were violated. If you or someone you know is dealing with this type of issue, please contact Kurtz & Blum at 919-832-7700 to discuss your case. 

The best way to fight for your constitutional rights are in court, not during the search. At the time of the search, assert your rights by verbally saying “I do not consent to a search” and stepping aside. Do not impede or block the police. 

That will only get you in more trouble.



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