Colorado Criminal Lawyer BlogColorado Domestic Violence Investigations – Can the Police Enter Your Home?
By H. Michael Steinberg Colorado Criminal Defense Lawyer
Introduction – The Fourth Amendment and Colorado Domestic Violence Cases
Domestic violence cases present many difficult factual and legal issues to both sides of the case, the prosecution and the defense. One of the key issues that can arise in a Colorado domestic violence case is whether the police had the legal authority to enter the home where an alleged domestic crime was being investigated.
It is well accepted to all who are familiar with domestic violence case investigations that they are inherently dangerous to all involved. It may be surprising because of this “potential for violence” factor there is no “domestic violence exception” to the Fourth Amendment mandate that the police may not enter a person’s home without a warrant.
There is no special rule for domestic calls because while these cases can be violent and it is well understood that there is clearly a greater risk to law enforcement, while there are exceptions to the warrant requirement into which a given case may fit, (the subject of this article) there is no rule providing “unfettered permission” to enter “based only upon a general assumption domestic calls are always dangerous..” United States v. Davis 290 F.3d 1239 (10th Cir.2002)
The Fourth Amendment to the U.S. Constitution reads as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Colorado Domestic Violence Investigations – a Legal Basis to Enter Your Home
Whether the entry into a suspect’s home is “constitutionally challengeable” turns on the facts of the case under scrutiny. In challenging the reasonableness of a warrantless entry the police must have more than “a generalized “ dispatcher’s report of a “domestic disturbance,”
“a vague and anonymous call about a domestic dispute” and with “no corroborating facts … suggesting that anyone was in danger.” is not enough. United States v. Davis 290 F.3d 1239 (10th Cir.2002)
The police cannot act on “mere suspicions not rising to the level of probable cause.”
Entry into a suspect’s home must be justified by one of the recognized exceptions to the Fourth Amendment’s requirement of a search… key among these exceptions is the exigent circumstances and emergency aid exceptions (community caretaking exception “ People v. Pate, 71 P.3d 1005 (Colo.2003)
Exceptions to the warrant requirement have been carefully drawn and the exceptions are few in number and under almost constant judicial review.
A Closer Look at the Fourth Amendment
The Fourth Amendment protects our privacy. It protects us from the real threat of unreasonable searches and seizures by the government. However, it is NOT a guarantee against all searches and seizures.
While searches and seizures inside a home without a warrant are presumptively unreasonable, there are exceptions to the rule. These recognized exceptions, as explored in this article, have been deemed “reasonable” under the Fourth Amendment.
This United States Supreme Court has formulated certain legal standards by which a particular search or seizure is judged. The exceptions have evolved over many years as a kind of “balancing of interests” – the intrusion on an individual’s Fourth Amendment rights versus “legitimate government interests”… such as public safety. Delaware v. Prouse, 440 U.S. 648 654 (1979).
When the police act to further a legitimate government interest, such as protecting citizens from potential serious bodily injury, the Fourth Amendment’s warrant requirement may give way and in a given case a warrantless search, otherwise presumptively illegal, may fall into one of the exceptions making that search …legal.
This article will explore the different legal justifications that may authorize the police to enter your home when there is a report of domestic violence and law enforcement is dispatched to your home.
Your Home – a Special Category Under the Fourth Amendment
Historically one’s home has been considered THE most sacred place under the Fourth Amendment. Governmental intrusions into the home are closely scrutinized for violations of the Fourth Amendment. The security of the home, the “sanctity” of the home, occupies a privileged status in our historical jurisprudence (the philosophy of law).
The physical entry of the home was the chief evil against which the wording of the Fourth Amendment was directed.
Even if the police have probable cause to believe a home contains evidence of a crime, the Fourth Amendment requires a search warrant based upon probable cause and issued by a neutral magistrate (a judge).
Warrantless searches are presumed to be unconstitutional and overcoming that presumption is always an uphill battle for the government
While there are exceptions to the warrant requirement that have developed over two centuries, (the primary exceptions are discussed below), the basic rule is this, we are all protected by the “4th” including those under investigation for alleged domestic violence.
We should all feel safe and secure if we are in a place where we have a reasonable expectation of privacy.. chief among these places is our home.
Entry Into the Home in Domestic Violence Cases -When Can the Police Enter and Search Your Home?
There are basically four possibilities involving police entry into a home in a domestic violence case investigation (assuming the police have the requisite probable cause to believe a crime has occurred or is ongoing). Those four possibilities are:
Consent to Enter – the police are lawfully allowed to enter by an occupant who has the authority to give that consent.
Refused Entry – the police are refused entry without a warrant – there is no alternative but to leave (if no recognized exception that applies).
Forced Entry – the police are refused entry, however, entry is permitted under one of the recognized exceptions to the requirement for a warrant.
Search Warranty Entry – the police are refused entry and they establish probable cause, seek and obtain a search warrant from a judge and then execute that warrant.
The Impact of the 911 Call in a Domestic Violence Case
When a police department responds to a report of a domestic dispute they are tasked with collectively gathering information from every source possible.
The primary source of their information prior to arrival at the scene of a “domestic” is usually the 911 call.
When the officers involved are later called upon at trial to justify their entry into a home without a search warrant, they must stand ready to offer facts that justify the entry beyond the mere fact of a serious argument.
These facts testified to under oath, and must provide an “objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others.”
The emergency 911 call can be the critical stone in the foundation of this inquiry. The depth and detail of the 911 call, the facts learned in the course of the investigation, can make a massive difference in the result of the case later filed by the state.
One thing is clear, 911 calls alone rarely constitute the evidence necessary to “fit” the case into the exigent circumstance exception to the warrant requirement…but they may provide at least the first objective reason to believe that the caller or other occupant on the phone or present at the scene is in need of emergency assistance.
Example: A 911 Hangup Call
Consider a disconnection after what appears to be a domestic violence-based 911 call. The 911 operator calls back, someone picks up the phone but then hangs the phone up.
The 911 hang-up call alone can imply many things to a court later reviewing the case. Clearly, the call raises the very fair question of whether or not the 911 caller was unable to pick up the phone due to an injury, an illness (a heart attack, or fall), or a threat of violence.
The police are duty-bound and are compelled to go to the scene to investigate further.
The 911 Call Closely Examined
In reviewing the legality of actions of the police upon arrival at the scene of alleged domestic violence, questions arise as to what was known and not known to the police before and at the time of arrival.
The focus of the later examination of the 911 call is the immediate safety of the caller, the victim, or others at the scene.
The well-trained 911 dispatcher will always attempt to keep the caller on the telephone as long as possible to gather information. The caller could be the alleged victim, a witness, or the assailant. The goal of the 911 operator is to obtain as much information about the alleged domestic violence incident as possible in order to relay that information to the responding officers. That information plays a critical role in any later attempt by the government to justify a warrantless entry into the home based on exigent circumstances.
The 911 dispatcher typically seeks to obtain answers to the following kinds of questions (and many others):
What is the exact nature of the incident (a verbal or physical attack)?
Are there injuries?
Is the alleged violence ongoing?
Are there weapons involved, are the weapons on the scene?
Are animals on-site?
Is either the 911 caller, the alleged assailant, or anyone present under the influence of alcohol or drugs?
Are mental health issues involved in some way?
What is the alleged assailant’s description?
Is the alleged assailant still on scene, if not, what is the direction and mode of travel the assailant chose to leave the scene?
Are there other people involved?
Are there witnesses still on the scene?
Were children involved are they still present on the scene?
Does the alleged assailant have a criminal history? (especially for domestic violence?)
Have the police been called to this address in the past?
Is there an existing protection order on file against the suspect or the caller?
Are there outstanding warrants against the caller or the alleged assailant?
The information generated by this key piece of evidence, the 911 call, is carefully scrutinized in a review of the legality of the decision to breach the home of a suspected act of domestic violence.
Five Key Recognized Exceptions to the Fourth Amendment’s Requirement for a Search Warrant to Enter a Home
If the police enter a home without a warrant, it is the government that bears the burden of proof that the entry was legally justifiable and therefore has overcome the presumption of unreasonableness that attaches to all warrantless home entries
“When a government agent enters a home without a warrant, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries.” Payton v New York, 445 U.S. at 586, (100 S.Ct. 1371).
A warrantless search of a home, in the context of a domestic violence case, may be lawful if it is based upon one or more of the following recognized legal exceptions to the warrant requirement:
1. Consent to Search
2. Exigent (Emergency) Circumstances.
3. The Protective Sweep
4. The Plain View Exception
5. The Community Caretaking Function.
Consent to Search
1. Consent to Search
2. Exigent (emergency) Circumstances.
3. The Protective Sweep
4. The Plain View Exception
5. The Community Caretaking Function.
Consent constitutes a waiver of the Fourth Amendment right against warrantless searches. Fourth Amendment rights, like other constitutional rights, may be waived. A “waiver” of a constitutional right overcomes any deficiency in the quantum of evidence that right may require – such as, in the case of the Fourth Amendment, the requirement of probable cause and a warrant to enter and to search a home.
It is estimated that approximately that 90% of warrantless searches are based on consent. The initial entry in domestic violence cases is most often based on the express or implied consent given by a resident or other person who answers the door and permits entry.
Consent to enter the premises is customarily is given when the police, at the door of the scene, are invited in or when their request to enter is granted. As noted, it can be express (given verbally “come in”). Or consent can be implied by an act from which permission to enter can clearly be implied. Implied consent is usually conveyed through gestures or other non-verbal methods of acquiescence, as long as they sufficiently convey consent and are objectively comprehensible.
Consent is by far the most common exception to the general rule that the police need a search warrant or probable cause for a search of a home to be reasonable and valid. BUT a warrantless search of that home is only valid with an individual’s consent as long as the consent is voluntarily given by a person and that person is authorized to give that consent.
Example of a Common Consent Fact Pattern:
In a well-known fact pattern, the police knock on the door of an apartment in response to a domestic violence call. The victim, a woman opens the door and the officer immediately observes that her face was bruised and swollen.
When he asks who had hurt her, the woman says nothing and simply points to her husband who is inside the apartment lying on the couch.
The police officer enters over the verbal objection of the husband.
This is a lawful entry. The reasoning was that the police entered to keep the peace, to protect the consenting party, and to arrest the non-consenting suspect.
Consent Must Be Freely and Voluntarily Given
To be valid, consent must always be “freely and voluntarily” given.
Unlike the Miranda warnings, (under the Fifth Amendment) the police are not required, under the Fourth Amendment, to inform people of their right to refuse to consent to a search.
To “test” whether consent has been voluntarily given, the trial courts examine the totality of the circumstances surrounding the consent. If the accused is alleged to have given consent, the government has the burden of proving that the accused freely and voluntarily provided that consent.
Put a little differently, courts must determine on the basis of the totality of the circumstances to decide whether consent has been freely given or was coerced.
Third-party Consent
If the police obtain consent from a person other than the person who owns the property that is being searched and the police reasonably believe this third party has authority to give such consent, the police are allowed to search another’s property.
Example: A Babysitter. If the police reasonably believe that a babysitter was the homeowner, the consent may be valid. Law enforcement is not required to conclusively establish that the person authorizing entry has the right to permit entry. If the police act upon a good faith belief that the third party had the authority to consent, the subsequent search, upon judicial review, will usually be held as valid.
Actual common authority over the premises is not required even if the police are mistaken if their reliance on the “common authority consent” was reasonable based on the facts and evidence they knew at the time, the search is good.
Each case of consent requires a fact-specific evaluation.
Examples of Sufficient and Insufficient Consent
Sufficient: consent by a person with whom the defendant was living and sharing the bedroom.
Insufficient: a landlord’s consent.
Insufficient: a hotel desk clerk’s consent to a search of a guest’s room.
Sufficient: consent of a joint user of a single duffel bag.
A mutual use of the property as demonstrated by joint access or control to the scene renders reasonable. This rule is based on the reasoning that each party has assumed the risk that the other might permit a search, and each has the right to give such permission.
Just as important to note is this: consent is limited to those areas to which the consenting party has access. For example – a roommate usually does not have the right to consent to a search of a private bedroom or a locked suitcase under the bed of another roommate.
Exigent (Emergency) Circumstances
1. Consent to Search
2. Exigent (Emergency) Circumstances.
3. The Protective Sweep
4. The Plain View Exception
5. The Community Caretaking Function.
The rationale behind the exigent circumstances exception is founded on the very nature of urgency – the need to act with immediacy. When there are exigent circumstances, the time required to obtain a warrant makes obtaining that warrant impractical. There must be a compelling need to act at that moment.
To later justify a search based on exigent circumstances, the police officer must point to specific and articulable facts demonstrating that the harm in this instance is imminent.
The “exigent circumstances” exception to the warrant requirement requires that:
(1) the police have reasonable grounds to believe that there is an immediate need to protect their lives or others or their property or that of others,
(2) the search is not motivated by an intent to arrest and seize evidence, and
(3) there is some reasonable basis, (probable cause), to associate an emergency with the area or place to be searched.
The Scope of the Search is Very Limited
The scope of any search following a warrantless entry based on an exigency must be “reasonable to meet the need of the exigent or emergency circumstances in the given case. For example, a warrantless may be justifiable where the police cannot see an alleged victim but have reason to believe that he or she is in the home and may be in potential danger.
Exigent circumstances are not limited to risks to life and property. There are several other types of exigent circumstances that fall within the category.
Examples of Exigent Circumstances:
1. Imminent Destruction of Evidence. – A warrantless search is lawful to preserve evidence if the police have probable cause to believe the evidence is located in the place searched and the police reasonably believe the destruction of evidence is imminent.
2) Immediate Danger to a Person – This is the basis for a search in most domestic violence cases. A warrantless search is lawful if the police reasonably believe that the person or items to be seized are dangerous to others.
In this instance, the search is limited to specific areas where there is a reasonable belief that the person or items are located. The courts will weigh the reasons given for the need for the search using a “totality of circumstances” standard to include such areas of inquiry as the seriousness of the crime, whether the person sought to be arrested is armed, as well as all of the other relevant facts surrounding the investigation.
3) Hot Pursuit of a Fleeing Felon – (Requires close and continuous pursuit).
4) Preventing a Suspect’s Escape – The police must establish that they reasonably believed that it was likely the suspect would flee before a warrant could be obtained.
Conjecture About Future Harm – Not Enough
The police may believe that there is a possibility of future harm to the victim but belief alone is insufficient to establish exigent or emergency circumstances – the subjective belief of an officer is not relevant when the courts later analyze the nature and extent of the exigency.
Furthermore, the police cannot create the exigency and then use the emergency they create to gain entry.
To determine whether a risk creates an exigent circumstance, the courts ask two questions:
(1) Did the officers have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others?
and
(2) Was the manner and scope of the search is reasonable?
To make this determination courts are guided by the realities of the situation presented by the evidence in the case which is analyzed from the viewpoint of ‘prudent, cautious, and trained officers.’
The Protective Sweep
1. Consent to Search
2. Exigent (emergency) Circumstances.
3. The Protective Sweep
4. The Plain View Exception
5. The Community Caretaking Function.
A “protective sweep” is a limited and brief search to permit police officers to ensure their own safety.
In many contexts such as a domestic violence investigation, the police are searching for an individual who may pose a threat to the safety of others and that includes law enforcement. When the police come to a potential crime scene they are rarely familiar with the physical layout of the premises and a person hiding at the scene has a clear tactical advantage.
Protective sweeps are “constitutionally permissible” under very limited circumstances. Protective sweeps are required to be limited to a quick inspection of only those places in which a person might be hiding.
This cursory inspection of those spaces where a person may be found may “last no longer than is necessary to dispel the reasonable suspicion of danger.”
A protective sweep must be “minimally intrusive” rather than a “fishing expedition.” Maryland v. Buie, 494 U.S. 325 (1990).
Finally, protective sweeps are constitutionally protected when:
the police provide articulable facts which, taken together with the rational inferences from those facts, warrant a reasonably prudent officer in believing that the area harbors a person posing a danger to those on the arrest scene.
The all-important ADD – (see plain view exception – next section). IF the police discover evidence of criminal activity during a protective sweep that is in “plain view” at the time of the sweep, the government may seize and later use that evidence against the defendant at trial.
The Plain View Exception
1. Consent to Search
2. Exigent (emergency) Circumstances.
3. A Protective Sweep
4. The Plain View Exception
5. The Community Caretaking Function.
The police do not need warrants to seize evidence of criminal activity if they are legally in a location from which the evidence can be viewed. The rule is his -if the police are executing a legitimate protective sweep of the premises the person under investigation does not have an expectation of privacy in contraband left in the open.
There are three requirements for the plain view exception are:
1. The police must be in the area legally.
2. The police must observe the item of criminality in plain view, and
3. The incriminating nature of the evidence must be immediately apparent, (there must be a clear and immediate connection between the viewed object and illegal conduct).
As a brief aside – when a police officer serves a search warrant that authorizes the search of one location, such as a single bedroom in a home, the officer is permitted to seize contraband that may be in plain view from the point where the officer enters the house to that bedroom.
The plain view doctrine is founded on the principle that once officers have lawfully observed contraband, ‘the owner’s privacy interest in that item is lost.’
The plain view exception requires that the police have probable cause to believe that items in plain view are contraband before they may search or seize them.
Finally, the plain view exception is often used to establish probable cause to entitle the police to take the next step in an investigation – that is – to secure the premises and to obtain a search warrant.
The Community Caretaking Function
1. Consent to Search
2. Exigent (Emergency) Circumstances.
3. A Protective Sweep
4. The Plain View Exception
5. The Community Caretaking Function.
The final exception to be reviewed falls under the heading of law enforcement’s “community caretaking function.”
While the law in this area is presently in flux, it is important to distinguish between traditionally recognized “exigent circumstances” and other grounds for “emergency entries” such as the community caretaking function.
The exigent circumstances exception requires “probable cause” before the exception can be executed. The community caretaking exception only requires an objectively reasonable basis for believing immediate aid is required inside.
In the context of domestic violence cases, the two concepts will merge at times as the facts and evidence that support each doctrine are often identical. The key issue is whether or not the available evidence at the time of the search provides the quantum of evidence required to apply the exigent circumstances exception – probable cause. If that evidence does not meet that standard, the state may try to fall within the community caretaking exception to the warrant requirement.
The community caretaking exception focuses on the beneficent purpose for entering into a home to preserve life in some way. It is broader than the exigent circumstances exception and does not require the traditional Fourth Amendment analysis.
The United States Supreme Court has defined “community caretaking functions” as a law enforcement response that is:
“totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady v. Dombrowski, 413 U.S. 433 (1973).
Community caretaking:
“refers to a capacity in which the police act when they are performing some task unrelated to the investigation of a crime, such as helping children find their parents, mediating noise disputes, responding to calls about missing persons or sick neighbors, or helping inebriates find their way home.”
To fall within the “community caretaking” exception to the Fourth Amendment three criteria must be met. The court must examine these areas:
1. Whether a search or seizure, within the meaning of the Fourth Amendment, has taken place;
2. If the Fourth Amendment is implicated, whether “the police conduct was bona fide community caretaker activity;” and
3. If the conduct was bona fide community caretaker activity, “whether the public need and interest outweigh the intrusion upon the privacy of the individual.”
Potential Abuse of the Community Caretaking Exception
The potential abuse of this broad exception is clear. As noted in Forbes magazine, several organizations such as the ACLU and the CATO Institute have criticized the doctrine as in the following quotation taken from an amicus brief on the issue filed with the Supreme Court:
“Allowing ill-defined notions of ‘community caretaking’ to override the Fourth Amendment is unwise, unmanageable, and unnecessary, and it opens the door to abusive police conduct, including against those who most need society’s protections….”
“When every interaction with police or request for help can become an invitation for police to invade the home, the willingness of individuals to seek assistance when it is most needed will suffer.”
Summary and Conclusion – Domestic Violence – Can the Police Enter Your Home in Colorado?
There is no “domestic violence” exception to the Fourth Amendment’s requirement for a search warrant based on probable cause. A report of “domestic” without more and standing alone, is not an exigent circumstance. United States v. Davis, 290 F.3d 1239, 1244 (10th Cir. 2002).
This article has examined some of the more complex exceptions that may apply in a Colorado domestic violence case. This area is rife with issues that compel courtroom challenges to police actions in this explosive area of law.
When a Colorado district attorney alleged that a warrantless search in a domestic violence case falls within one of the recognized exceptions, the criminal defense lawyer’s job is to put the application of the exception, whether it be consent, exigent circumstances, or plain view, … to the test.
When Colorado police officers respond to a report of ANY crime they must be ready to later articulate facts and evidence that demonstrate an “objectively reasonable basis to believe there [was] an immediate need to protect the lives or safety of themselves or others” before they breach the premises.
“A person charged with a crime requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”
United States Supreme Court – Powell v. Alabama, 287 U.S. 45, 69 (1932)
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Never stop fighting – never stop believing in yourself and your right to due process of law.
ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at hmsteinberg@hotmail.com – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge of Colorado Criminal Law and his 38 plus years of experience in the courtrooms of Colorado may give him the edge you need to properly defend your case.
H. Michael knows how to talk clearly and very directly to his clients, his adversaries, and to the Court. He uses his life experience, common sense, and straight talk to help clients fully understand and make decisions regarding their options.
If you are ready to talk, H. Michael stands ready to help.