John Wiehn
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
One of the highest-liability calls there is. An order of protection grants the protected party exclusive use and possession of the residence. The question is whether officers can walk in on that court order alone, serve it on the other occupant, and remove them from the home.
Hey guys, this is John Wiehn, attorney and senior legal instructor with Blue to Gold Law Enforcement Training, coming to you today with another roadside chat.
Today’s question is this. If officers are armed with an order of protection or a restraining order that grants the protected party exclusive use and possession of the residence, can they, armed with that court order, go into the home, serve it on the co-occupant, and then remove them from the residence?
First things first, this is obviously a very high liability, very stressful situation. So before you engage in this practice, you need to seek guidance from your legal advisor, from your prosecutor, from your chain of command. Okay?
Can the protected party give you the keys and let you in?
As far as the law is concerned when it comes to serving these orders of protection or these restraining orders, first off, if the plaintiff, if the protected party gives me the keys to the residence and says, here, yeah, go for it, can I use those keys and with their permission go into the home?
The answer is yes. United States v. Matlock, the 1974 case, established that if you allow other people into your private areas, like your home, then you assume the risk that they will extend that access to others, including the police.
So if that person who is protected in that court order gives you keys and says, yeah, by all means, go on in, you’re good.
What if the other occupant says you can’t come in?
The issue obviously becomes when I’m walking up to that residence and the defendant, the person who is listed in that order of protection, says, hey, you can’t come in here.
Because now what are we running into? We’re running into your Georgia v. Randolph, your Fernandez v. California situation.
Georgia v. Randolph, a 2006 case, said where you have two co-occupants, one saying yes and one saying no, the no trumps, unless the objecting party is arrested or leaves. Now, Georgia v. Randolph is kind of interesting, because they said we will uphold it. You can then go back and ask the remaining co-occupant, and the consent will be valid as to them, as long as you did not arrest the objecting co-occupant for the purpose of removing the objection.
And then in 2014, Fernandez v. California revisited that. They said, well, I know in 2006 Georgia v. Randolph said as long as you didn’t arrest them for the purpose of removing the objection. But that kind of goes into the subjective mindset of the law enforcement officer, which we have long held is irrelevant in a Fourth Amendment analysis.
So here’s what we’ll say. Fernandez v. California. If you have two co-occupants, one says yes and one says no, the no trumps, unless the objecting co-occupant is arrested or leaves. Then officers can reapproach the remaining co-occupant and the consent will be valid as to them. We don’t care why the officers arrested the objecting co-occupant, as long as there was probable cause for that arrest.
So under Georgia v. Randolph, under Fernandez v. California, you go up, you can gain access there.
Do you need a separate search warrant to enforce the order?
If he says, hey, no, you got to get out, well, then you’re relying on that order of protection. You’re relying on that restraining order that gives the protected party exclusive use of the premises.
You say, well, hold on a second. Do I need like another search warrant or something like that?
Well, I will tell you, a case out of the Ninth Circuit, Henderson v. City of Simi Valley. In that case they addressed this issue. And basically what the Ninth Circuit said is, New Jersey v. T.L.O., United States Supreme Court, recognized that there is a general requirement for warrants, a general requirement for probable cause. However, the Supreme Court has permitted exceptions to the warrant requirement when special needs beyond the normal need for law enforcement make the warrant and probable cause requirement impracticable.
Now, if you are going to be relying on this special needs exception, you have to first establish that special needs beyond the normal need for law enforcement exist. If such a finding is made, then the court must determine whether the special needs make the warrant and probable cause requirement of the Fourth Amendment impracticable in a given context.
In Henderson v. City of Simi Valley, which was a matter of executing a restraining order, going into a residence, securing personal property, the Ninth Circuit recognized that requiring the officers to get a warrant in this situation would not only be impracticable, but superfluous.
The court recognized that the officers already had a court order in their possession, and that court order detailed the relevant restraints imposed and the property rights protected. Basically, their thought process was that requiring an additional warrant to effectuate the exercise of court-ordered property rights would accomplish no objective that was not already considered and incorporated into the order.
As far as the second part of that special needs analysis goes, the court recognized that the delay inherent in obtaining a warrant would make it more difficult for officers to respond quickly to potentially violent violations of the court order. And this was an eventuality the court order was designed to prevent.
So relying on Henderson, you can rely on that order of protection, that restraining order.
Where do officers get into trouble with these orders?
There are several lower court decisions that find fault with relying on merely the restraining order, or merely the order of protection, when we’re talking about exclusive use and possession of a property.
However, those decisions stem from officers relying on an order of protection or that restraining order and using that as grounds to search the residence.
Where we run into issues is when officers are relying on that order of protection not to gain access to the house and serve the listed party, serve the defendant and remove them from the property, but rather when they are relying on that order of protection to go through and search the residence to remove firearms, and then they discover other issues, other items, other contraband. And now we’ve got an issue.
I hope this helps, guys.
The short version
- “This is obviously a very high liability, very stressful situation. So before you engage in this practice, you need to seek guidance from your legal advisor, from your prosecutor, from your chain of command.”
- If the protected party hands you the keys and says go in, you can. That is Matlock assumption-of-risk consent.
- If the other occupant is there objecting, “the no trumps, unless the objecting co-occupant is arrested or leaves.”
- After Fernandez, “we don’t care why the officers arrested the objecting co-occupant, as long as there was probable cause for that arrest.”
- On the Ninth Circuit’s reasoning, a separate warrant would be “not only impracticable, but superfluous,” because the court order already spells out the restraints and the property rights.
- The lower court decisions that go the other way are about officers who used the order as grounds to search.
- “Where we run into issues is when officers are relying on that order of protection to go through and search the residence to remove firearms, and then they discover other issues, other items, other contraband.”
Related from Blue to Gold
- Can Police Enter a Locked Room to Arrest a DV Suspect?
- Can Cops Enter a Home to Arrest a Husband for Domestic When He Says You Can’t Come In?
- Can a Person Who Has an Access Code Give You Permission to Enter a Home?
This article is an edited transcript of Roadside Chat EP#833. 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.
