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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 09-22-2012, 9:14 AM
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Default Roomate Consenting To Search?

A question occurred to me this morning regarding the aspect of roommates/spouses consenting to a police search of your property.

Of course most of us here understand that in the event of contact with police,we don't have to consent to a search without a warrant. That said, my roommate's not the Constitutional type. The moment an ATF agent gets assertive he'll cave under pressure, and bam my stuff gets hit with a search. Thinking back to my ex-gf's, none of them would have the chops to tell the government to pound sand either.Thus I pose the question to the legal eagles here:

Does LE have the authority to search the ENTIRE premesis if a roommate permits a search in the other party's absence? Likewise, if a wife or girlfriend permits entry while the main resident's away?
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Old 09-22-2012, 9:20 AM
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I'll add to that question... say another member of the household consents to entry by law enforcement without a warrant. And, I am home. I come out of my room and demand they leave. Must they obey my command to leave the premises?
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Old 09-22-2012, 9:29 AM
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IANAL, but I have always understood that if they get consent to search from anyone who has even partial control of the property, they have complete consent to search.

Same with the old line "Do you mind if we come inside?", once inside the door, they can go anywhere in the house.
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Old 09-22-2012, 9:30 AM
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I believe common area's would be allowed to be searched, but not your own private areas such as your bedroom. That is why I have a lock on my door that's automatically locks every time the door closes. Its a pain in the ***** but worth it to keep unwanted people out. I am no lawyer this is just what I have heard from friends who are cops.
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Old 09-22-2012, 9:31 AM
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Originally Posted by littlejake View Post
I'll add to that question... say another member of the household consents to entry by law enforcement without a warrant. And, I am home. I come out of my room and demand they leave. Must they obey my command to leave the premises?
That depends on who gave the permission to enter and who you are in relation to say the owner of the home etc...

But yes permission can be pulled at anytime. Weather they choose to follow your request or not is a different story.

This I feel is just the same as being questioned by the police. You can talk freely with them all you want. They can even Mirandize you. but you never give up you rights you simply waive them, and you can just as simply implement them as well.
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Old 09-22-2012, 9:35 AM
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While this is true that once inside the door they are allowed to "go" anywhere inside the house they are not allowed to start tearing through stuff.
Plain sight is the rule until they have probable cause to search further. Got a Bong sitting on the coffee table? They are going to want to see a card. Rifle or pistol laid out well they can ask anything that pertains to the item in view. But a rifle in a legal configuration does not automatically give probable cause for a mystery weapon that "may be" in the residence in an illegal configuration. nor is it probable cause to examine all the weapons of the house.
Best deal is to always keep them outside. Go to them and speak from your property, This way if they want to do anything they need a warrant.
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Old 09-22-2012, 9:49 AM
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if they mirandize you, you could easily consider yourself under arrest, where different rules apply to 'incident to arrest'

tell him to at least make the statement of what is his and what is not his, for example the back room is not mine, it belongs to SilverT. or, I can only give permission to search, locations x, y, but not z or a. location z and a belong to SilverT and I cannot speak for him.
if the police 'believe' they have the proper permission, and act on that belief, they can search everywhere, if he tells them its not his, they lose having the ability to claim they believed they had permission, doesnt mean they wont still search, but it will be easier to make it out as an unlawful search if they 'knew' it wasnt his and he had no authority to consent to the search.

a locked door is a good idea, an electronic lock, that he does not have the combo, if they have to testify they broke the door because the person that gave them permission didnt know the combo, it could be easily argued that he had no authority to give permission where he has no access. ..it seams..I think it would be hard for them to even say he gave permission but was simply claiming not to know, as that to me would be same as denying permission

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consult an actual attorney for best advise on that.
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Old 09-22-2012, 9:52 AM
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Quote:
Originally Posted by SilverTauron View Post
A question occurred to me this morning regarding the aspect of roommates/spouses consenting to a police search of your property.

Of course most of us here understand that in the event of contact with police,we don't have to consent to a search without a warrant. That said, my roommate's not the Constitutional type. The moment an ATF agent gets assertive he'll cave under pressure, and bam my stuff gets hit with a search. Thinking back to my ex-gf's, none of them would have the chops to tell the government to pound sand either.Thus I pose the question to the legal eagles here:

Does LE have the authority to search the ENTIRE premesis if a roommate permits a search in the other party's absence? Likewise, if a wife or girlfriend permits entry while the main resident's away?
The roommate can "consent" (acquiesce) as long as the authority to control the area searched isn't sufficiently refuted. If you walk out of the kitchen and say "no, you can't open my bedroom door and search it," then it's clear to the officer that the roommate can't consent. If you aren't home, then a good example would be a padlocked footlocker or bedroom door -- if the roommate has a key, the roommate has authority to consent; if not, then the officer knows it is your private space.

Do not confuse this with probable cause -- if the roommate *says* he saw something illegal in the locked footlocker, the officer is going to get a warrant to open it and search it even of the illegal item never existed.
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Old 09-22-2012, 9:54 AM
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Legally, they can search "common areas" (anywhere the roommate has access to).
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Old 09-22-2012, 10:06 AM
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Default Third Party Consent Searches

The Alameda County District Attorney's Office publishes a periodical called "Point of View."

Here's an article from 2007.

http://le.alcoda.org/publications/fi...RTYCONSENT.pdf

Hope this helps...
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Old 09-22-2012, 12:15 PM
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Quote:
Originally Posted by non sequitur View Post
The Alameda County District Attorney's Office publishes a periodical called "Point of View."

Here's an article from 2007.

http://le.alcoda.org/publications/fi...RTYCONSENT.pdf

Hope this helps...
It does, thank you for the link. It would seem that as long as control over a space is clearly my own and not my roomates, then even if police search it it's inadmissible in court.Thanks.

What I found odd was the last section of the breif.It says:

Consequently, the courts have ruled that employers may consent to police searches of
property that is used exclusively by employees only if both of the following circumstances
existed:
(1) Right to joint access or control: The employer must have had a right to joint
access or control over the place or thing.
(2) Employer exercised the right: The employer must have openly exercised that
right on a regular basis, or at least so frequently that the employee-suspect could
not have reasonably expected privacy in the place or thing that was searched.


If I understand that passage right, theoretically an employer can grant permission to search your vehicle if its parked in their lot.
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Old 09-22-2012, 12:32 PM
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Disagree.

employer must have had a right to joint
access or control over the place or thing.


must have openly exercised that
right on a regular basis,

The employer has control of the parking lot, but not over your personal vehicle. Did you give him/her a copy of the key, and they have your permission to enter your vehicle/drive your vehicle on a regular basis?

Nope? Nothing to worry about there then... He can allow them to search the parking lot, if you have something in plain view inside your vehicle, then they have probable cause... but anyone not in control of the vehicle can not give the right to search it. If you let someone borrow your car, they're in control, and can allow a search.

It sounds like it regards a search of a business, searching business owned property, that is used by an employee. Such as your desk or your employer provided computer- which is for your use, but not *your* property.

This would apply to an employer provided locker- If you put the padlock on the locker, and your employer doesnt have access, regularly accessed it, they cant allow LE to search it since it doesnt meet the requirements above.

If the locker has a combination lock the employer provided for you to use, they *gave* you the combination, and one could assume the employer has access- Such as a large rolling toolbox for mechanics- If the employer has access and opens it to use a tool, you have no reason to expect privacy in the first place... this is where they could consent to search.

Last edited by postal; 09-22-2012 at 12:42 PM..
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Old 09-22-2012, 12:39 PM
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Quote:
Originally Posted by non sequitur View Post
The Alameda County District Attorney's Office publishes a periodical called "Point of View."

Here's an article from 2007.

http://le.alcoda.org/publications/fi...RTYCONSENT.pdf

Hope this helps...
Good post -- thanks, Jake
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Old 09-22-2012, 12:55 PM
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Let me Tell you about one of my roomates from 6 years ago
He was a parolee with a parol agent and cops searching his house in regular intervals. He was not allowed to to have firearms or access to firearms. When he moved in I installed a lock on my door for his protection i had to remmember to lock it when I left the house ( I actualy had to lock it at all times when I was not in my room to prevent his acces to firearms). We had several searches but the parameters were established with his PO that he had no access to this room and it beeing my personal living space I do not concent to them searching it. They never went inside the room but everytime they came they did try the door.
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Old 09-22-2012, 3:34 PM
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Quote:
Originally Posted by Quiet View Post
Legally, they can search "common areas" (anywhere the roommate has access to).
^^^ This ^^^

In any type of room mate or joint tenancy a person may only consent to search of:

* Their private portion of the domicile over which they themselves have curtilage.

* Common areas used by all occupants.

Probably one of the better definitions of curtilage is in United States v. Dunn, 480 U.S. 294 (1987) where SCOTUS defined it as:

Quote:
the area immediately surrounding a residence that "harbors the intimate activity associated with the sanctity of a man's home and the privacies of life.''
As to employer owned property, check your company policy. Very often employers strictly reserve right to inspection if you are on their property as an employee. If you have something in your car you don't want the police to be able to see, don't park in your employer's parking lot.
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Old 09-22-2012, 5:13 PM
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I remember a court case from a few years ago where it was held that you can't stop a search once you've given permission. It said they can search as long as they want (within reason I suppose). If I remember right, the reasoning was that you can't just wait until they're just about to find something and stop the search just before they get to it. I wonder though if you could give permission to search for a specific time period specified up front. After all, it is not like if you give permission to search then the permission is valid for all future times. At some point in time the permission ends. I see no reason why you shouldn't be able to specifiy that point up front. Of course if somebody else gave permission to search your property I would imagine you could revoke that permission as soon as you found out, if you found out before it was over.

Of course it is rarely a good idea to give permission to search since there are so many laws you could be breaking without realizing it (e.g. putting a silicone cover on your phone, which can get you a felony with three years prison Cal PC 537e) and you never know what small objects could have fallen off one of your guests into the seat cushions or carpet, like one of grama's pain pills, or could have been left in your possession intentionally without you knowing it.
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Old 09-22-2012, 6:43 PM
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Intresting!
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Old 09-22-2012, 7:13 PM
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Quote:
Originally Posted by SilverTauron View Post
It does, thank you for the link. It would seem that as long as control over a space is clearly my own and not my roomates, then even if police search it it's inadmissible in court.Thanks.

What I found odd was the last section of the breif.It says:

Consequently, the courts have ruled that employers may consent to police searches of
property that is used exclusively by employees only if both of the following circumstances
existed:
(1) Right to joint access or control: The employer must have had a right to joint
access or control over the place or thing.
(2) Employer exercised the right: The employer must have openly exercised that
right on a regular basis, or at least so frequently that the employee-suspect could
not have reasonably expected privacy in the place or thing that was searched.


If I understand that passage right, theoretically an employer can grant permission to search your vehicle if its parked in their lot.
I would not assume That!!

In the Alameda District Attorney’s publication a court case is sited that says


“Because many situations which confront officers in the course of executing their
duties are more or less ambiguous, room must be allowed for some mistakes on
their part.”

Because of this the court said that even if the consenting party did not legally have control of a place or thing evidence found would still be admissible as long as the police ‘thought’ the consenting party had control!

Is this as disgusting to others as it is to me? We are talking about an enumerated basic human right here, and all you have to do is say; “The wino sleeping on the porch said it was his place and to go ahead, and we believed him?
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Old 09-22-2012, 7:14 PM
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IANAL...but I do investigations...
a roommate can give consent to search "common" areas. the areas (bedroom, etc.) that you pay for are your private property and under your control. therefore, only you can provide consent. anything found in a warrantless search of your property that you did not consent to would be inadmissable.
but again....IANAL.
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Old 09-22-2012, 7:33 PM
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I had an ex-GF that had the police show up to "search" her Mother's house because my ex's Mother had a vent tube from a swap cooler sticking out of the front window. The police said it was a "grow house." I don't understand how you can have a grow house with a window open and not have the smell oozing out in all directions but whatever......

Well, one of my friends was living with her and her mother at the time. When the police asked her(my ex) if they could search the house she said yes to them and gave consent. My friend who was living with her at the time comes running out and said something along the lines of "hell no, you aren't searching the house!" like an idiot. He could have said it much more polite but it did keep my GF from waving her rights. Long story short, they searched him and detained him in the back of a police car until the "detectives" showed up about an hour later with a search warrant to search only the room with the vent tube coming from the window.

It was worth in the end because the police came off like complete incompetent assclowns. The detectives where nice and very polite, though. It was an experience to say the least.
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Old 09-22-2012, 7:44 PM
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More on law enforcement searches...

http://le.alcoda.org/publications/fi...NTSEARCHES.pdf

see page 23 - consent withdrawn
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Old 09-22-2012, 8:14 PM
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In that living situation, I would install a doorknob with a simplex style (push button key pad) lock on it. It's a pita to enter a code to get into your room, but solves the problem of uninvited access...
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Old 09-22-2012, 10:08 PM
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Quote:
Originally Posted by BigDogatPlay View Post
^^^ This ^^^

In any type of room mate or joint tenancy a person may only consent to search of:

* Their private portion of the domicile over which they themselves have curtilage.

* Common areas used by all occupants.

Probably one of the better definitions of curtilage is in United States v. Dunn, 480 U.S. 294 (1987) where SCOTUS defined it as:



As to employer owned property, check your company policy. Very often employers strictly reserve right to inspection if you are on their property as an employee. If you have something in your car you don't want the police to be able to see, don't park in your employer's parking lot.
IANAL, but I don't think that applies to your personal vehicle only to a company vehicle that you happen to drive. I work at a public school that has signs posted that say "If you park here you are giving consent to a search of your vehicle" however, our RSO told me that he cannot search my vehicle.
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Old 09-23-2012, 7:06 AM
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Train your roommates and ex-girlfriends to not allow police in without a warrant. Keep your own personal room locked and don't let them have access. That is the only way to prevent them from consenting to a search that would be held legal if challenged in court.
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Old 09-23-2012, 8:36 AM
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Once in the home its "game on", they will dig in like an "Alabama Tic"... its up to a court to decide if they were wrong or cross a line after that... they do not have to leave after you ask them at that point. The problem is between you and your roommate...they already got their permission.
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Old 09-23-2012, 3:00 PM
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Originally Posted by dieselpower View Post
Once in the home its "game on", they will dig in like an "Alabama Tic"... its up to a court to decide if they were wrong or cross a line after that... they do not have to leave after you ask them at that point. The problem is between you and your roommate...they already got their permission.
Too bad this isn't Indiana.
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Old 09-23-2012, 4:25 PM
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Quote:
Originally Posted by dieselpower View Post
Once in the home its "game on", they will dig in like an "Alabama Tic"... its up to a court to decide if they were wrong or cross a line after that... they do not have to leave after you ask them at that point. The problem is between you and your roommate...they already got their permission.
Actually incorrect, you can with draw consent at any time. Weather they choose to leave is another story. But cops can be arrested too.
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  #28  
Old 09-24-2012, 2:54 AM
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Dreaded Claymore Dreaded Claymore is offline
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Originally Posted by tpuig View Post
In that living situation, I would install a doorknob with a simplex style (push button key pad) lock on it. It's a pita to enter a code to get into your room, but solves the problem of uninvited access...
If you can install any kind of lock whatsoever, that would utterly negate any presumption of common-access-ness. Even if it costs $5 and could be broken with a toothbrush, it proves to everyone that you're not consenting to a search, no matter what your roommate says.

I didn't hear this from a lawyer, though. I saw it on Law & Order: Special Victims Unit. So maybe it's bull.
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  #29  
Old 09-24-2012, 8:25 AM
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Mulay El Raisuli Mulay El Raisuli is offline
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Originally Posted by Dreaded Claymore View Post
If you can install any kind of lock whatsoever, that would utterly negate any presumption of common-access-ness. Even if it costs $5 and could be broken with a toothbrush, it proves to everyone that you're not consenting to a search, no matter what your roommate says.

I didn't hear this from a lawyer, though. I saw it on Law & Order: Special Victims Unit. So maybe it's bull.

Yeah, but it seems consistent with what I see in the links.


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  #30  
Old 09-24-2012, 8:56 AM
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Originally Posted by SilverTauron View Post
It does, thank you for the link. It would seem that as long as control over a space is clearly my own and not my roomates, then even if police search it it's inadmissible in court.Thanks.

What I found odd was the last section of the breif.It says:

Consequently, the courts have ruled that employers may consent to police searches of
property that is used exclusively by employees only if both of the following circumstances
existed:
(1) Right to joint access or control: The employer must have had a right to joint
access or control over the place or thing.
(2) Employer exercised the right: The employer must have openly exercised that
right on a regular basis, or at least so frequently that the employee-suspect could
not have reasonably expected privacy in the place or thing that was searched.


If I understand that passage right, theoretically an employer can grant permission to search your vehicle if its parked in their lot.
I am not a lawyer, but I disagree with your conclusion. An employer NEVER has "joint access or control" over your vehicle unless you are co-owners of the vehicle (ie. spouse or the vehicle is provided by your employer as a "company car", etc.).

As an employer, I have absolutely no right to do much of anything with my employees vehicles-other than have them towed if they violate posted laws in the parking lot.
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  #31  
Old 09-24-2012, 10:25 AM
Wiz-of-Awd Wiz-of-Awd is offline
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Originally Posted by Wherryj View Post
I am not a lawyer, but I disagree with your conclusion. An employer NEVER has "joint access or control" over your vehicle unless you are co-owners of the vehicle (ie. spouse or the vehicle is provided by your employer as a "company car", etc.).

As an employer, I have absolutely no right to do much of anything with my employees vehicles-other than have them towed if they violate posted laws in the parking lot.
I think this is the key part:

"...only if both of the following circumstances
existed:

(1) Right to joint access or control: The employer must have had a right to joint
access or control over the place or thing.
(2) Employer exercised the right: The employer must have openly exercised that
right on a regular basis, or at least so frequently that the employee-suspect could
not have reasonably expected privacy in the place or thing that was searched."

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  #32  
Old 09-24-2012, 10:41 AM
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Originally Posted by kcstott View Post
Actually incorrect, you can with draw consent at any time. Weather they choose to leave is another story. But cops can be arrested too.
well yes and no... if your roommate gives consent...LEO have consent..period end of the story. I agree your roommate can then withdraw consent and ask them to leave... BUT both do not have to be in agreement for a search of the common areas.... and following the USSC rulings if while in the common area LEO see illegal or in some way gain PC...the whole house is now open to them....especially if exigent circumstances arise...such as witnessing a person run from the common area into a back room and lock the door... the LEO have the right to bust that door open.

as I said..once inside...its game on for them and game over for you...
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