When is a Warrant Required for Police to Enter a Home and/or to Make an Arrest? The Chief Case is Instructive
By Ken K. Gourdin
This comes with the usual caveats: (1) I am not a lawyer; (2) This post isn’t legal advice; (3) Anyone needing such advice should contact an attorney who is licensed to provide legal advice and representation in the jurisdiction involved. The family of a young man killed by a police officer who responded to a domestic dispute call has filed a wrongful death suit. See the story in The Salt Lake Tribune here, last accessed today: http://www.sltrib.com/sltrib/news/57029523-78/chief-brandon-officer-lloyd.html.csp. In response to a commenter who alleged that it was improper for police to enter the home without a warrant, I pointed out that, lack of a warrant notwithstanding, police very likely did have probable cause, especially since a conversation very similar to this one is very likely to have occurred:
Officer/Dispatcher: “What happened?”
Victim: “My uncle slammed my head into the floor several times.”
Officer/Dispatcher: “Where is your uncle now?”
Victim: “He’s at 123 Easy Street [to dispatcher, or] He’s in that house right there [to officer on scene].” [And officers are able to observe wounds consistent with the niece’s story, further verifying her account.]
That gives (an) officer(s) probable cause to make entry no matter who doesn’t like it. Ergo, no warrant is required.
In response to this commenter continuing to maintain that it was improper for police to enter the house without a warrant (or since no exigent circumstances authorizing their entry allegedly existed), I said:
So … furniture and other stuff is being thrown around by this lunatic, he’s yelling and screaming (and people are probably yelling and screaming back) and if you were an officer responding to the scene, you would automatically conclude that no exigent circumstances exist? Oooh-KAY! You have a much higher tolerance for chaos than the average human being, I’ll say that for you. I hope you haven’t been charged with the responsibility of protecting my community (or anyone else’s) as a first responder. Whether the niece resides in the home, and whether her “permission” was obtained to enter, is irrelevant. The officer didn’t need anyone’s permission to enter the home. He had probable cause to believe that a crime was taking place (not to mention that (an)other(s) already had taken place.
Accusing me of mischaracterizing what took place in the house and mistaking when law enforcement may enter a home without a warrant, this poster then wrote:
Whether it be the police report or this lawsuit, there is absolutely no mention of what you [describe] taking place inside the home in the officers’ presence. The only thing lunatic is your assertions that [such activity had occurred]. [By the way]: Upon the unlawful entry into the home didn’t [law enforcement] state just the opposite of what you claim, that the dad was sitting in the living lacking [room] mention [of] type of arguing or fighting? [Law enforcement’s] only contact concerning a crime was that of the niece, a misdemeanor, lacking [exigency] in [its] entirety once they arrived upon the scene.
From the article: “Brandon Chief became infuriated after his niece smashed his bottle of alcohol on the ground and chased her into the home, where he threw her down and slammed her head repeatedly on the floor, according to the report. He then began damaging furniture and tossing household items, breaking several windows in the process.”
But, as I’ve already said, it’s a reasonable assumption that a conversation such as the one I posit in my previous post took place between the niece and either a dispatcher or (an) officer(s). As I said, I admire (on one level, at least) your high tolerance for chaos and your apparent belief that officers should simply give people who throw and break things (and otherwise create disturbances) the benefit of the doubt by assuming that no one else (or their property) is likely to be disturbed or harmed in such circumstances. But whether officers entered the house because they observed a disturbance (or reasonably believed that further investigation was necessary because a disturbance appeared to have had taken place based on the house’s disordered state) or they entered the house based on the niece’s report of what happened, either way, they had probable cause to do so. And aggravated assault is not a misdemeanor, so whether the officers actually saw what Chief did to his niece is irrelevant.
P.S.: If a dispatcher gets a 911 hang-up call from my house, calls me back, and either (1) I answer and tell her that nothing is wrong, or (2) nobody answers, proper procedure dictates that the dispatcher send the police anyway to ensure that my report that nothing is wrong is accurate (and that I’m not, for example, simply saying that nothing is wrong because someone else is putting me under duress). And under those circumstances, police have a right to come in, to observe the condition of the house, and to talk to whomever is here to ensure that my report of a false alarm is genuine. If police have a right to come in, look around, and talk to the house’s occupants under those circumstances, even if they don’t have specific evidence that a crime has occurred, much less a warrant, I cannot, for the life of me, understand why a warrant would have been necessary in this case. In this case, in contrast to my 911 false alarm, there was plenty of evidence that some type of crime had occurred. [Officers can only arrest for misdemeanors committed in their presence.]