The United States Supreme Court has indicated that under the Fourth Amendment, tenants, not landlords, have a privacy interest in leased residences. Chapman v. United States, 365 U.S. 610, 616-17, 81 S. Ct. 776, 5 L. Ed. 2d 828 (1961). In Chapman, a tenant successfully challenged a warrantless search carried out with the landlord's consent. The court held the landlord had no authority to consent to a search of property leased to and occupied by others; the tenant enjoyed the privacy right in the leased premises, and only the tenant could waive that right. In the realm of housing code inspections, the Court reached the same result: without the tenant's consent, a warrant was necessary to authorize an inspection of rented premises. Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). See also In re 728 Belmont Avenue, 24 N.C. App. 17, 210 S.E.2d 73, 77 (N.C. App. 1971) (Camara "gives rise to the clear implication that the Supreme Court considered the Fourth Amendment privilege personal to the occupant of the place to be searched.").

Although the issue whether a tenant may consent to a search of his or her leased apartment is one of first impression in Washington, we have previously approved the reasoning of both Chapman and Camara in the context of Const. art. 1, § 7. See State v. Mathe, 102 Wn.2d 537, 543, 688 P.2d 859 (1984); King County v. Primeau, 98 Wn.2d 321, 329, 654 P.2d 1199 (1982).

Other courts considering this issue have held that tenants may consent to searches of their leased premises. 4 Appellants cite no authority to the contrary. The reason a tenant may consent to a search of his or her leased premises has been explained as follows:

It is the right of possession rather than the right of ownership which ordinarily determines who may consent to a police search of a particular place. Thus, the landlord and tenant cannot be said to have "common authority" over rented premises, as that phrase is used in United States v. Matlock [415 U.S. 164, 171, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974)]; the tenant's right is superior, and thus the landlord cannot give consent which will be effective against the tenant. It logically follows, as the cases have held when the issue has presented itself, that the tenant may consent to a search of the leased premises during the term of the lease and that evidence found in a search based upon this consent is admissible against the landlord.

(Footnotes omitted.) 3 Wayne R. LaFave, Search and Seizure § 8.5, at 298-99 (2d ed. 1987). Because the tenant, not the landlord, has the privacy interest in the leased premises, we join the jurisdictions which hold that tenants possess the authority to consent to a search of their individual apartment units, notwithstanding any objections by their landlords.


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4 See, e.g., In re 728 Belmont Avenue, 24 N.C. App. 17, 210 S.E.2d 73, 77 (N.C. App. 1974) (consent of a tenant in actual possession and control of the premises is sufficient to authorize a search by a city housing inspector to determine compliance with the housing code); State v. Matthews, 805 S.W.2d 776, 781 (Tenn. Crim. App. 1990) (the fact that appellant is co-owner of the property does not, of itself, establish a reasonable expectation of privacy in the premises); People v. Koris, 107 Ill. App. 3d 821, 438 N.E.2d 593, 596, 63 Ill. Dec. 662 (Ill. App. 1982) (lessee, not owner, has the expectation of privacy in the leased premises, even if the owner retains the right to enter the area to make repairs); State v. Reagan, 35 N.C. App. 140, 240 S.E.2d 805, 807-08 (N.C. Ct. App. 1978) (warrantless search of a barn owned by the defendant was valid because the tenant in possession of the barn consented). See also United States v. Dubrofsky, 581 F.2d 208, 212, (9th Cir. 1978) (a party who has a key to the premises and access throughout the residence can validly consent to a search) (citing United States v. Green, 523 F.2d 968 (9th Cir. Cal. 1975)).

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