Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
Another Roadside Chat. This question comes from an officer in Kansas. That’s a pretty good scenario, actually.
All right, the question is: can we enter a motel room to freeze it in anticipation for a search warrant, and can we also actually hold on and detain the suspects of a sexual assault at the same time?
The scenario: freezing a motel room during a sexual assault investigation
Basically we have an accusation that a sexual assault occurred in a motel room. Two juveniles along with their mother are living in the motel. That is their residence. Two victims say that they were sexually assaulted inside the room. While the victims were being interviewed, the detectives were like, all right, let’s lock that room down, let’s freeze it, let’s pull the people out and so forth.
The problem though was that there was no evidence that the suspects even knew that they were targets of a sexual assault investigation. So as far as they’re concerned, everything is just hunky dory.
Well, this officer who’s asking me this question goes back and forth with the detectives. He’s like, look, I just can’t go in there and start pulling people out without some kind of exigency, right? And finally they come to an agreement to do it, because not only do they want the room, but they also want the suspects. And the longer we wait, the more likely it is that they’re going to take a shower, they’re going to destroy evidence and so forth.
So the officer knocks on the door. Mom comes to the door. They say, hey look, we really need everybody out of this room. They comply. The suspects are then seized. They get the warrant. Come to find out that the victims were actually lying. They probably got caught having sex by their parents, and what do they do? They say, hey, it was not consensual. That’s how they get out of it, right? That stuff does happen more frequently than I would like to admit.
So the question though is, look, what is the rule about pulling people out of their homes? Well, look, the rule is that you may do a premise freeze under a few conditions.
Can police keep people out of a home while they get a search warrant?
So some ground rules here. Number one is if you want to just keep people out of the room. You don’t think anybody’s inside the room, you just want to kind of like keep people from going in while you get the warrant. Absolutely no problem. That’s going to be easy. You obviously know that if you let them in the room and they know you’re there and so forth, they can destroy evidence.
But even if you just show up to the house and you’re like, look, you guys aren’t going in, we’re going to hold on to this while we get a warrant, that is actually no problem. That is the same thing legally, in principle, the same thing as holding on to a car for a warrant, holding on to a backpack for a warrant. Obviously those are containers. The house is one huge massive container. But the house is obviously protected like no other. So I’m not saying it’s exactly the same, but legally it’s similar.
Can police pull people out of a home they are already inside?
Now the next type of premise freeze that we have is you’re already inside the house. You’re there, you’re conducting this investigation, you’re inside the house with consent, whether it’s a domestic violence case, whether it’s a sexual assault case. Let’s say that Uncle is staying at the house during Christmas time, he’s suspected of sexually assaulting his niece or something, and then you’re like, okay, I have probable cause here, I’m going to get a warrant for the bed sheets and all this kind of stuff. You start pulling people out. That is absolutely authorized as well.
That case is Illinois v. McArthur, where the US Supreme Court has said if you’re inside of a home and you’re going to go seek a warrant, and if you just left and came back later with the warrant that evidence could be destroyed, then clearly it’s reasonable to either stay in the house and basically just freeze it all and be like, all right, we’re not leaving until the warrant’s brought back. Or what most likely will happen is cops will start pulling people out.
Can police enter a home just because they are getting a search warrant?
All right, the last one is this whole entry and exclusion issue. I have been teaching for many, many years that police officers do not have a right, just the authority I should say, just to automatically start entering homes or start pulling people out of their home just because you have probable cause and you’re going to get a warrant. Instead, you don’t have the judicial authority yet.
So when you’re asked, right, what gave you the authority to enter my client’s home an hour before the warrant was even signed, what are you going to say? You definitely cannot say, well, the exception is I’m getting a warrant. The exception is that probable cause. That doesn’t exist. That exception does not exist. Show me a case that says that you can, as a matter of routine, enter a home that you’re not even in yet and start pulling people out while you go seek a search warrant. It doesn’t exist.
What did the court say about freezing a scene without a warrant?
So the case we’re going to use there is a First Circuit case out of Boston. I’m saying the name wrong, but you get the point. I’ll leave it in the description below. But this is what they said:
At least some members of the Boston Police Department may have mistakenly believed that they were free, absent a search warrant or exigent circumstances, to enter a dwelling in order to freeze the scene. The district court was quite correct to state strongly that this is not the law. There is no question that the police had no right to freeze the Quincy apartment where that meant entering it, looking around, searching, all the while ostensibly waiting for someone to get a warrant. Nothing in First Circuit or Supreme Court case law remotely justifies such a step, nor should it.
I guess they kind of went over there searching for stuff, right. And entering is a search to some degree. You’re going to see something in plain view, probably.
Searching without a warrant, on the assumption that the magistrate will no doubt agree with the officers that there’s probable cause to search that location at that time, makes a mockery of the Fourth Amendment protection the warrant and the review it requires, and reduces it to a technicality.
Okay, so you have to have some level of exigency.
What other cases say about entering a home to freeze it
So let me also share some other cases. There was a case also holding, and I’ll put this in the description below, that there was no reason to believe anybody was home. So why are you entering a home when you don’t even have any reason to believe anybody’s even in that damn house?
Another case was they entered the home, and they were asked, and they said destruction of evidence. But then they were asked what destruction of evidence. They couldn’t even provide any reason to believe that the people were even aware of police presence.
Did the officers have exigency in this motel case?
So let’s go back to this case. Those are the ground rules. Let’s apply them to this case.
I believe that it’s defensible to believe that if the crime just occurred, right, we’re talking about minutes, hour or so, and they’re in the apartment, and the victims are gone and they were raped, and of course if this is one of these issues where the victims are saying straight up rape, I do believe that a suspect would be motivated to get rid of the evidence as quickly as possible. Right? Because it is reason to believe that a victim of a sexual assault that has gotten away or was let go is going to run right to the police, and the police are going to seek a warrant.
So you know, in the minds of a criminal, I think it’s arguable that, hey look, the police are coming eventually. There’s two victims, there’s two suspects. But you’re going to need to articulate that. So we have that here.
So I want recency. I want recency. If this is like a three-day-old case, that’s not going to work.
What else? What about it’s closer to nighttime. It’s at nighttime, people take showers at night, maybe before bed. It’s these things. Maybe the suspects made comments about the police, like, you’re not going to find any evidence here, if you report it to the police you’re not going to find anything.
What happens if somebody gets hurt during a premises freeze?
I mean, the point is, I respect immensely that this officer kind of pushed back on the detectives and said, hey look, why are we going in there, why are we starting to pull people out of their home? Because that is the right question. We can’t just do it blindly. At the same time, I like the fact that at the end of the day they talked it out and they came to a conclusion that this might have been the right thing in this particular case, depending on the facts.
Look, I do not have any specifics on this case. I don’t think it’d be fair to tell me what it is. It’s their investigation. But the principles are the same. If you’re going to start pulling people out, and hey, come out of this house, or you start physically grabbing people out of the house, before you do that just make sure you have some kind of urgency here so that you don’t get in trouble with the courts. Especially, especially if somebody gets hurt.
Because if one of those homeowners gets hurt and you’re asked why are you even doing this in the first place, and you’re like, uh, uh, well, that’s the way we’re trained and so forth. There is no “that’s the way I was trained” exception of the Fourth Amendment. You’re going to be starting your way all the way up to a million dollar lawsuit if somebody gets killed and so forth. So just know what you’re doing out there and make sure you’re making good case law.
Why it’s a good thing when officers argue about the law
And again, I’ll just say this one more time. I do respect, and you should too, when officers have the freedom to talk things out, right. Have those arguments. Argument is not a bad word. I mean, lawyers argue in court. They do it in a respectful manner, it’s professional to professional, but they argue things, and then the truth will come out and the right answer will come out.
I hope this has helped. Get it right every single time.
The short version
- If you want to just keep people out of the room while you get the warrant, absolutely no problem. That’s going to be easy.
- Legally, in principle, it’s the same thing as holding on to a car for a warrant, holding on to a backpack for a warrant. The house is one huge massive container, but the house is obviously protected like no other.
- If you’re already inside of a home and you’re going to go seek a warrant, pulling people out is absolutely authorized as well. That case is Illinois v. McArthur.
- You definitely cannot say, well, the exception is I’m getting a warrant. That exception does not exist.
- Show me a case that says that you can, as a matter of routine, enter a home that you’re not even in yet and start pulling people out while you go seek a search warrant. It doesn’t exist.
- You have to have some level of exigency.
- I want recency. If this is like a three-day-old case, that’s not going to work.
- But you’re going to need to articulate that.
- There is no “that’s the way I was trained” exception of the Fourth Amendment.
- Argument is not a bad word.
Until next time my friends, you stay safe.
This article is an edited transcript of Roadside Chat EP#778. Watch the original video here.
This content is for training and educational purposes only and is not legal advice. Always check your own state law, your agency policy, and consult your local prosecutor or legal advisor.
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- Lawful Police Conduct During a Drug Investigation
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This article is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
