I'm looking for some feedback regarding the following scenario. Assuming a home is for sale with a posted sign, can an officer, just like any other citizen, make an appointment with the realator/home owner to tour the house? In the course of touring the house, could the officer look in closets, drawers, cabinets, etc. in the hopes of seeing items in view that he/she could then use as a basis to obtain a Search Warrant? I did not see any cases on point. I would appreciate any feedback.
Posts: 7 | Location: Fort Worth, Texas | Registered: January 15, 2003
Interesting scenario. It certainly seems that the owner has given the officer consent to enter and inspect the home - but arguably NOT consent to conduct a search. So, the issue may turn on "effective consent". I think the issue is close enough that I would certainly try it. Get the officer to make the appointment and look through the house. STOP as soon as he finds stolen property, narcotics, paraphernalia, or whatever, and get a warrant to search the remainder of the residence. You might also want to look at (as strange as this may sound) "plain view" cases - the premise being that the officer is able to view the stolen property, drugs, or whatever from a location where the officer is lawfully located (like if the realtor went through the house and opened all of the closets prior to the officer looking around. Given the current composition of the CCA, I would be very surprised if you have a problem with the "search". That of course does not mean that your trial judge will let it in.
Posts: 325 | Location: Texas, USA | Registered: November 16, 2004
I would advise the officer to ask the real estate agent to open the closet doors, drawers, etc. If he does so, the "search" is ok. If that gets too awkward, he should specifically ask the agent: May I pull out these drawers? May I look in this closet? The real estate agent is the seller's agent, and obviously has authority to show the property. The officer has authority to view what he is shown, because he's been invited by the seller to do so by the sign, and other advertising.
If the seller later claims that the officer had no authority to be on the property because he was not a bona fide potential buyer, I think the real estate agent could testify that many people who go thru a house when it's on the market, have no real intent to buy the house, but do it out of curiosity, or to get a feel for what the market is (they may be putting their house on the market) etc., etc., and obviously these people are not tresspassers. When you put your house on the market, you are opening it up to inspection by anyone who goes thru the property with a listed agent.
I would have thought this kind of thing was extremely problematic, but similar stuff has worked before. E.g., State v. Poland, 132 Ariz. 269, 645 P2d 784, 792-93 (1982) (officer posed as home buyer and saw incriminating items in barn, closets, and shelves; search upheld).
I'm not sure you could justify poking around in cabinets and such. And it all seems dangerously close to the classic example of the officer posing as a gas company guy coming around to investigate a leak. That would probably be verboten.
Posts: 143 | Location: Fort Worth | Registered: August 08, 2001
I think you could go through the house and look around, but don't start doing things that an ordinary homebuyer wouldn't. For instance, don't turn the TV around to get a serial number and definitely stay out of anything that is not likely to be part of the purchase of the house. Dresser drawers are definitely not cool to go through.
[This message was edited by Dan Bradley on 03-21-06 at .]
If you go to any bookstore, you can usually find a whole shelf of books on the subject of buying or selling your house. They ALWAYS tell buyers to check EVERYTHING out VERY, VERY CAREFULLY.
Since a home buyer is not likely to get the TV in the typical home sale, turning it around just to get the serial number may be going a tad far, but moving it out of the way to see the condition of the floor it sits on, or the wall behind it, or the electric sockets it plugs into is acceptable. If you happen to see the serial number, so what? If you are thinking of buying a house, you diffenately want to check all the drawers, to see how easily they pull out, and go back in, and to see if they are otherwise damaged. Checking out a house you may want to buy is not the same as coming over to a friend's house for a Coke.
All of this is understood and accepted by real estate professionals. In any case, the owner has entrusted the showing of his house to any real estate agent he has signed up with, and if he agreed to have it listed on the multiple list, he's agreed to any such agent to enter and show the house. If the u/c cop gets the permission of an agent, he can look pretty much anywhere.
Remember, the 4th Amend. only prohibits "unreasonable" searches. Ask anyone who's ever had a house on the market, and they'll tell you: there is no reasonable expectation of privacy when you list your house with the real estate community. This is especially true if you have vacated the house.
Think about the home inspection aspect, too -- once a contract is pending, the buyer customarily agrees to have the property inspected in detail -- closets, garage, attic, basement, crawl space, etc. I would think that further limits any reasonable expectation of privacy the buyer might have.
That said, I don't think any of this would extend to furniture. I think that looking in a closet or cabinet or kitchen drawer or another feature of the home is OK, but looking in a free-standing dresser drawer that does not convey with the home is not. (If that was the case, we might never sell our house b/c my wife wouldn't want strangers digging through her unmentionables!)
Posts: 2414 | Location: TDCAA | Registered: March 08, 2002