Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
A question from an officer in Texas. Officers went into a house on a domestic where a firearm had been discharged, saw the gun during a protective sweep, stepped outside to talk to the spouses, then went back in and seized it. He wants to know whether that re-entry holds up, and how far they can go once they are back inside.
Hey guys, it’s Anthony Bandiero here, attorney and senior legal instructor for Blue to Gold Law Enforcement Training, bringing you another roadside chat from San Diego, California.
All right, so the question here, and the lighting is bad, I’m parked and the sun’s in my face over here, so hopefully that’s not too distracting, but it is what it is. All right, so the question here is whether officers can re-enter a home to collect plain view evidence.
Okay, so here is the scenario that is behind this question. This question comes from an officer in Texas, and basically he says this. You’re dispatched to a domestic call where a firearm was being discharged. Upon arrival officers enter the home to do a protective sweep to determine whether or not there’s any injured parties. Okay, and that’s question number one, right, part of this scenario.
And while inside the house they see a firearm with a bullet hole in the door. They then exit. They talk to the spouses. They confirmed that that gun was used during the domestic. They then re-enter and seize the gun as evidence.
Okay, so the final question is, the officer wants to know, can we re-enter, and if we can re-enter, can we also collect like blood samples, can we take pictures, that type of thing?
Okay, let’s walk through this one at a time. This roadside chat may be a tad longer than usual because there’s a few components here, but I want to give you my feedback. Now, a lot of these cases, if this went to court, this is going to be very fact driven. More facts need to come out, we have more questions, but let me just kind of give you the general guidelines.
Was the initial entry for the protective sweep lawful?
Number one, what about the initial entry for the protective sweep? Well, we know that under the Fourth Amendment we can make a protective sweep when we have a reason to believe that people inside the house could be injured, right, and there’s some form of exigency to go along with that.
So I think we have that here, right. We have a domestic, we know that a gun got fired, there could be other people in the house. If there was any contrary evidence, so for example, if the neighbors, I’m just kind of guessing here, but the neighbors said look, we know they don’t have any kids, we know nobody else lives there, and we’re the ones calling and they’re both out in front, it gets a little weaker. But I think courts are going to bend over backwards to uphold the entry under exigency. I mean, we know a gun was fired, there could have been somebody in there and so forth that got shot. I think the courts are going to uphold it. So check, I think we’re in the house.
Why not just seize the gun the first time you see it?
Second, we see the gun, and now we have probable cause that that gun was used during the commission of a crime, right, during a domestic. Guns should not be fired in houses and there’s also a bullet hole to match.
Why the cops did not seize the gun initially would be a question for me for tactics. I don’t know. I think we probably should just seize the gun right then and there under plain view, or under protective doctrines, you know, just pure officer safety. But that’s neither here nor there.
Do you lose the right to be in the house once you leave?
Let’s talk about the officers leaving and re-entering. Generally, generally speaking, when you leave and there’s nobody left in the house, right, and there’s nothing else exigent going on, you do lose your right to be in the house. Now to re-enter the house you have to have another reason, like consent, another form of exigency, and so forth. So that is the general rule.
What is the necessary and continuous doctrine?
Now there is a recognized exception to seize plain view evidence when you had to leave the home and you immediately re-enter. It’s kind of known as the necessary and continuous doctrine. So first, was it necessary to leave the home, and second, was it continuous, meaning did you wait too long for it to become stale and now you lost the home.
I don’t see why the officers would need to leave the home and not get the evidence right then and there. So an example of this is, you’re inside the home, you’re doing your protective sweep, and then you hear your partner in a fight outside. You go out there and you get the suspect in custody that’s assaulting the officer, and then you immediately re-enter to go grab the plain view evidence that you saw. That would be an example of that, I think.
But I don’t see that here under the facts, why they had to leave. It looks like they were maybe a little doubtful that they could seize in the first place, and they re-entered. Now, the other re-entry could be the fact that there’s a gun that could be readily available to somebody, to the husband for example, if he broke loose and went into the home and got the gun and assaulted officers. But he’s probably in handcuffs, and there may not be a legitimate reason there.
So from a court’s point of view it seems a little bit messy. But you know, you don’t have to be perfect, you just have to be reasonable. So I don’t know. I wish I had a better answer for you. It depends on what the court believes, right. If they believe that you had a reason for leaving the house and you immediately re-entered, I think your evidence is saved. They’re probably going to be looking for that reason, right, because they don’t really want to lose this evidence.
Can you take pictures and collect blood once you are back inside?
As far as taking pictures, yes, you can take pictures. As far as collecting blood, well, blood is plain view, right, that’s probable cause. But you want to be careful about crossing the line into processing the scene for evidence, right. If the court believes you are processing the scene, then that is not permitted, because there is no crime scene exception. So you need consent or a warrant.
I don’t think they’re going to look at that as necessary processing of the crime scene, but that would be the question for the court.
All right, and that is pretty much it. Okay, this is not a very simple fact pattern for me to answer within a few minutes. There’s more questions than probably answers, but there you go.
The short version
- Getting into the house requires some form of exigency. A domestic where a gun was fired will very likely support the protective sweep.
- If you see the gun on the sweep, the cleaner move is to seize it right then and there under plain view.
- Leaving the house and re-entering requires a recognized exception, like consent or the necessary and continuous doctrine.
- Necessary and continuous means you had to leave, and you re-entered without wasting any time.
- Pictures, yes. Blood in plain view, yes. Processing the scene, no. There is no crime scene exception.
- No matter what, you cannot process crime scenes and you cannot search for evidence under these scenarios. Plain view is grab and go.
- You don’t have to be perfect. You just have to be reasonable.
Related from Blue to Gold
- What is Plain View?
- Open View Versus Plain View
- When Can You Do a Protective Sweep With an Arrest Warrant?
This article is an edited transcript of Roadside Chat Ep. #64. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
