No You Cannot Come In!

Recently SQ Attorneys has been receiving inquiries about one’s safety from police invasion into their living space. In other words, ‘do I have to let the police into my home’? It seems most folks think the answer is ‘yes’, if they are asked, they must permit an officer into their abode. Well, the answer is not that cut and dry. See … there is something called the Constitution. We, as Washingtonian people, are governed by two, our own state Constitution and the United States Federal Constitution. So, such a question really relates to protections and/or exceptions to protections based on our constitutional rights.

As is well known by lawyers, criminal or otherwise, warrantless searches and seizures are per se deemed unreasonable under the Fourth Amendment of the U.S. Constitution. Article I, section 7 of the Washington state constitution goes even further; it offers even more protection to our state citizens. Article I, section 7 creates an “almost absolute bar to warrantless arrests, searches, and seizures.” And the home enjoys a very special protection indeed. The closer officers come to intrusion into a dwelling, the greater the constitutional protection. State v. Schultz, 170 Wash.2d 746, 753, 248 P.3d 484 (2011) (citing State v. Ferrier, 136 Wash.2d 103, 112, 960 P.2d 927 (1998) (quoting State v. Young, 123 Wash.2d 173, 185, 867 P.2d 593 (1994))).

In the absence of exigent circumstances, police may not make a warrantless, nonconsensual entry into a home even when making a felony arrest. Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371 (1980). Exigent circumstances, it must be noted, however, includes the “emergency aid exception”. In other words, in order for law enforcement to justify a limited invasion, it must meet each of the following elements:

(1) The police officer subjectively believed that someone likely needed assistance for health or safety concerns;
(2) A reasonable person in the same situation would similarly believe that there was need for assistance;
(3) There was a reasonable basis to associate the need for assistance with the place being searched;
(4) There is an imminent threat of substantial injury to persons or property;
(5) State agents must believe a specific person or persons or property are in need of immediate help for health or safety reasons; and
(6) The claimed emergency is not a mere pretext for an evidentiary search.

The Washington Supreme Court has made it very clear that “failure to meet any of these factors is fatal to the lawfulness of the State’s exercise of authority.” Schultz at 760 . That is clearly a heavy burden to meet. This is so because it is often times impossible for the government to prove each of these elements.

In Schultz, Sequim police responded to an apartment complex after a resident reported a male and female yelling. Upon arrival, Officers Malone and Hill overhead a man and woman talking with raised voices. Officers specifically recall overhearing a man state he wanted to be left alone and needed his space. An officer knocked on the door and Schultz answered it. Schultz appeared agitated and flustered. Officer Malone asked Schultz where the other occupant of the apartment was. Schultz denied that anyone else was present. Officer Malone told Schultz she heard a male voice in the apartment. Schultz called for Sam Robertson who emerged from a nearby bedroom. The state claimed Schultz stepped back, opened the door wider, and Officer Malone followed Schultz inside. Schultz testified she stepped aside because the officers were entering. Regardless, neither officer requested permission to enter the home, and neither Schultz nor Robertson were told they could refuse the entry/ search. Moreover, neither Schultz nor Robertson asked the officers to leave and/or prevented their entry. Schultz, 170 Wash.2d at 750-751. Eventually, the officers discovered meth and drug paraphernalia.

The Washington Supreme Court held that the officers’ warrantless entry of the home was unlawful, reasoning that at the moment the officers crossed the threshold into Schultz’s apartment, they did not have enough facts to justify an entry based upon the emergency aid exception to the warrant requirement. Id. at 760. The Schultz court acknowledged, however, that courts may consider entries made into a home in the context of a domestic violence threat for reasonableness of the officer’s actions under the emergency aid exception. Id. at 761. The court was equally careful, in like kind, to point out “[d]omestic violence protection must also, of course, be consistent with the protection the state constitution has secured for the sanctity and privacy of the home.” Id. at 756 (citing WASH. CONST. art. I, §7; Ferrier, 136 Wash.2d at 112, 960 P.2d 927 (citing Young, 123 Wash.2d at 185, 867 P.2d 593)).

Upon a review of this holding, it does seem that it is ok to tell an officer you are not interested in them coming into your home. They do not have an absolute right to entry, and in fact law enforcement has some pretty significant restrictions pursuant to our constitutional rights to be free from unlawful searches and seizures.  Folks should not be fearful to say ‘no’ … you cannot come in!

If you (or a loved one) find yourself facing a DV related criminal charge, it is infinitely important to immediately contact and hire a Seattle domestic violence attorney. The Seattle domestic violence attorneys that make up the criminal defense team of SQ Attorneys are highly qualified and reputable Seattle domestic violence lawyers that are dedicated to providing top notch, aggressive representation for those arrested for crime all across Western Washington and the Greater Puget Sound region. The team creates success by working with law enforcement and the prosecuting attorney’s office to ensure that all facts and circumstances related to the criminal allegations are considered in creating the fairest, most equitable and just resolution possible in light of all the surrounding circumstances of the given case. So, whether cited for domestic violence related assault, malicious mischief, property destruction or some other crime, protect yourself … call SQ Attorneys immediately at 206.441.0900.

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10.0Gregory Wayne Schwesinger
10.0Saad Qamer Qadri
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