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Can a police officer come into my home to gather evidence?

The Courts have drawn a big bright line at the entrance to our homes. Officers can enter only in limited circumstances. This was necessary because “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” (New York v. Harris, U.S. Supreme Court 1990) Washington’s constitution provides even greater protections than the Federal Constitution in many scenarios, including an officer entering a home.

If an officer suspects that you have, say, a marijuana pipe (or for that matter, a slew of dead bodies) in your home, they must obtain a search warrant. Or – one of the few “jealously drawn” exceptions to the warrant requirement must apply before they can enter. The government bears the burden of showing a warrantless search falls within one of these recognized exceptions.

One of these exceptions often claimed by law enforcement is that the resident consented to the entry. But it’s not enough to simply say that “no one objected.” First, valid consent requires proof that consent was granted by a party having the authority to consent – so your crazy neighbor can’t tell officers to “walk right in,” even when that helpful dude tells them right where you keep your stash of reefer. Nor can your landlord. And your roommate can’t tell officers that your bedroom is fine to search, unless it’s shared with that roommate. Overall, if you have a legitimate and reasonable expectation of privacy, that’s when the protections kick in. You have a diminished expectation of privacy in common areas shared with other folks. You can’t have the same expectation of privacy as when you live alone.

The government must also show that the consent is “voluntary.” Whether consent is voluntary depends on the circumstances, including whether Miranda warnings were given before obtaining consent, the degree of education and intelligence of the consenting person, and whether the consenting person was advised of his or her right not to consent. Since 1998, Washington has required officers conducting a “knock and talk” visit to tell residents that they may lawfully refuse their entry, that they may revoke their consent at any time, and that they can limit their consent to certain areas of the home. If these warnings are not given, evidence gathered from that visit can be suppressed.

Finally, the government must prove that the search the officers conducted was limited to the scope of the consent granted. So if you tell officers it’s fine to enter your kitchen and they start opening drawers in your guest bedroom, the State will have a problem seeking to introduce the bootleg copies of Wallace & Gromit they found back there in the trial against you.

Other recognized exceptions to the warrant requirement: An “emergency” situation, or the entry was for “community caretaking” purposes. You could drive a truck through the caretaking exception – it can cover a lot of situations. A particular area of “gray” used to justify a “caretaking” entry is a 911 call reporting domestic violence.  Early in 2011, the Washington Supreme Court found that even the likelihood of domestic violence reported by outside parties could not justify the entry into an apartment when a 911 caller heard “yelling” between a man and woman, and “raised voices” were also heard firsthand by the officers. After knocking on the door of the apartment, an “agitated and flustered” female resident answered the door and denied that a male was in the apartment. After being pressed by the officers, the female called for a male resident to emerge from a nearby bedroom. The officers then entered. The Court found that even under the “volatile” and “challenging” context of a domestic violence allegation, the entry by the officers was unjustified under those facts. The case is State v. Schultz, 170 Wn.2d 746 (2011). The courts in Washington have found that the community caretaking exception must be “cautiously applied” because of the potential for “abuse.”

Your home is your castle. Whether your “home” is a rented hotel room, a studio apartment, or a palatial 17 bedroom estate. If you are in your home and law enforcement asks for permission to enter, you may deny this request. What should keep the officers from entering is not merely fear of a lawsuit, but something called the “exclusionary rule” – which basically means that if they obtained evidence against you in violation of your constitutional rights (including State and Federal protections), that evidence cannot be used against you in a criminal proceeding.

But can a police officer enter my house to just ask me questions?

The US Supreme Court and Washington’s highest court have agreed: “verbal” evidence gathered directly from an unlawful entry and an unauthorized arrest is no less the “fruit” of official illegality than the more common “tangible” or physical fruits of the unwarranted intrusion. Meaning, not only is the literal smoking gun thrown out, but your “don’t retreat, reload” response to the officers’ questions is thrown out as well. The Washington Supreme Court examined this in June of 2011 and in State v. Eserjose, and reiterated that Washington’s Article 1, Sec. 7 of the State constitution provides more protection in this area of law than the federal counterpart.  The court reviewed the reasons why our state provides greater protection: individual privacy, deterrence of police from acting unlawfully, and preservation of the dignity of the judiciary by refusing to consider evidence that has been obtained through illegal means.

So, not only do you have the right to turn the officers away at the door, but you don’t have to answer their questions either. But what do you say? Well, if “no comment” works for celebrities and high powered politicians, it should work for you too.

If you find yourself facing a criminal allegation, please feel free to give us a call or submit an online request for contact. We provide aggressive and effective representation against criminal charges throughout western Washington.