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  • Marcus L. Schantz

Can Your Spouse Let the Police Search Your Car if You Say No? Not Always.

Updated: Apr 13, 2019

I once had a case where my client was charged with being a felon in possession of a firearm found in his car. I filed a motion to suppress the gun. Though many facts were in dispute at the hearing on that motion, the issue was clear: does a spouse have the legal authority to consent to the search of their husband's/wife's car?


The main allegation in my motion was that my client's wife did not have legal authority to consent to a search of his car. My client refused to give permission for obvious reasons. His wife after being pressured and threatened by police signed a search consent form. The car was searched. A pistol was found under the driver's seat. Case closed, right? Wrong.


My research into this issue found that a person must have some control over the thing they are giving a consent to search. This extends beyond spousal relationships. A roommate could consent to a search of a shared closet, but probably not the closet in your bedroom.

At the hearing, I got the police officer to admit that a registration check of the vehicle revealed it was registered only to my client. The cops also used keys taken from my client's pocket to unlock the car. In fact, the officer admitted there was no evidence the wife co-owned or even shared the car.


The officers believed, though incorrectly, that a spouse could give consent to search a vehicle belonging to their better half. My research found otherwise. Going into the hearing, I knew I had to establish the wife had no control over her husband's car. How did I do this?

As written above, I got the police officer to help. Then I called the wife as a witness. She testified she wasn't on the car's title, registration or insurance. She had no keys to the car and never drove it.


Why? She had her own car.


Her testimony and the police testimony corroborated each other. Had she opened her purse and pulled out keys to the car to allow it to be searched, it would be a different story. Had her name been on the vehicle's registration, likely different outcome. But this wasn't the case.


The judge sustained my motion. Rather than immediately dismissing the case, the State asked for a check date. Legally the State could appeal the judge's ruling to the Illinois Appellate Court within 30 days. They didn't and never do.


Instead, the prosecutor handed to me a case from the United States 5th Circuit Court of Appeals. We are in the 7th Circuit, thus this case had no controlling authority. He planned to make an oral motion to reconsider and handed me the case he was going to cite five minutes ahead of time and it was from another federal appellate jurisdiction.


An oral motion to reconsider is like telling the judge you have no real legal basis for your motion but are doing it anyway. If you have a good motion to reconsider, you write it, cite case law and argue convincingly.


I sat down to read the case and interestingly enough, it restated the law exactly as I argued it at hearing. The case held that a spouse with joint control over an automobile may give consent for it to be searched. There's that phrase joint control again. I thought we had settled this? The State made a pretty novel argument. It was argued that if this were a civil case, the wife would have a marital interest in the husband's car should the marriage be dissolved. Thus, it was further argued, she has control over the car.


I didn't see the logic behind this argument. Neither did the judge.


Motion to reconsider was denied and finally the case was dismissed. This case is a perfect example of an issue for which I didn't know the law. Initially, I had no idea whether his wife could give legal consent to search. Criminal defense lawyers don't know the law for every possible circumstance, but we know how to look it up. Through my research I was unable to find a case directly on point, which would mean more or less the same fact pattern. But I did find and studied the black letter law regarding consenting to search property of another.


I argued that being married does not create a legal authority to give consent to search your spouse's car. A showing of some control over that car must be shown to validate the consent, married or otherwise. And since it was not shown that the wife had any control over her husband's car, I argued the consent was not valid, and the gun must be suppressed.


The judge agreed with me.


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