Recorded on the road in Addison, Texas, where Blue to Gold was training the entire police department at the fire station. The question came from an officer in Iowa who was already familiar with Georgia v. Randolph and Payton v. New York.
Can you go into an apartment to arrest the husband for domestic if the wife is outside?
All right guys, so can you go into an apartment to arrest the husband for domestic if the wife is out of the apartment and the husband says you cannot come in?
The officer says he’s familiar with Georgia versus Randolph. That’s the case where the husband says no, you cannot come in and search, the wife says yes, and the Supreme Court says they cancel each other out.
He’s also familiar with Payton versus New York. That’s the case where the cops had probable cause for murder, and based off the probable cause alone they made entry into the home to arrest Payton, and the Supreme Court said that will not work.
What happens when the DV victim escapes before officers make entry?
Here’s the facts. A little long, but worth it, stick with me.
Officers were dispatched to an apartment where there was a 911 call of a male assaulting a female with a knife. Dispatch advised that just prior to officers’ arrival the female was still located inside. As officers were on scene about to make entry, so far so good, the female approached from the outside of the apartment. She had escaped prior to their arrival. Officers then backed off, spoke with the female, and gathered all the information. She had been assaulted several times, and officers had probable cause for domestic abuse, strangulation, and assault with a weapon. The male was inside refusing to answer the door, and said that officers needed to leave.
The female also has equal rights to the apartment. Clearly she’s a co-occupant. She said we can go in there if we wanted to arrest him.
Does a warrant need to be executed to enter that apartment and arrest the male on the probable cause charges when the female gave consent? I understand that they are both there and have equal say, which cancels each other out per Georgia versus Randolph. And another person’s argument was that we can enter anyway, because you’re not searching for anybody.
Can one occupant’s consent override the other occupant’s refusal to let police in?
All right, the answer is I do not believe that you can go in based off of consent. I do believe that Randolph controls here.
The idea in Randolph is not necessarily of searching. The idea is hey, you cannot be in a home when a cohabitant with equal authority over that home is saying leave. So it’s like, I mean, imagine if Georgia vs. Randolph was the cops said hey look, okay fine, we’re not going to search, but we don’t want to leave either, and your wife says we can stay. You think the Supreme Court’s going to be like oh, oh, oh, in that case you can stay as long as you want? That’s not how it works.
The home is the most protected area in the Fourth Amendment. So if the husband says leave, whether or not they’re searching is not the issue. I mean, imagine if the intent is just to have an interview with the wife. That’s not searching. But do you have to leave? The answer is yes. Okay, so that part’s not going to work.
What exigent circumstances get you inside on a domestic violence call?
So the consent is problematic to me. If we’re going to get into that home, we’re going to need some form of exigency. Now here, when it comes to domestics, there are several things that we can probably look at to see if we have exigency.
Number one is, all right, is there somebody else in that house that is in danger? This guy, this husband, just got done strangling his wife, has a weapon. If there is anybody else in that house, I’m sure it’d be very easy to articulate that somebody is in imminent or immediate harm inside the home. That gets you in there. We don’t have time to warrant.
The second thing is evidence. Is there evidence in that home that could be destroyed before cops come back with a warrant? He just got done strangling his wife. Is there DNA, skin, trace evidence on his clothes, under his fingernails? What about that evidence, if you see slashes on her neck and grab marks? Maybe you want to bag his hands, maybe you want to photograph him, maybe you want to DNA him. So that’s another way, a viable way in my opinion, to get inside the house.
Can officers go inside with the wife when she wants to get her things?
Also, she has a right to enter that home. Maybe the consent is problematic for Georgia versus Randolph, but she certainly has a right to go into her own home and grab clothes, grab her stuff. Maybe she wants to leave, and so forth. So if she is lawfully present, which she is, then you can be lawfully present under exigency to protect her. So that’s how I look at that as well.
So if she wants to grab stuff out of the house and so forth, she has a right to do that. I don’t think he can basically say hey, even my wife cannot come in here. No, that’s not how it works, obviously. So if she wants to go in there, then you can obviously make the scene safe before she goes in there. I think that’s where I’m at on this.
When is the best course of action to just go get a warrant?
But if she’s like, I don’t, I ain’t going back in there, I’m actually out of here, I’m going to my sister’s, and you don’t have the evidence issue, and you don’t have danger to other people, or you don’t have any other facts that lead you to believe that by the time you come back he’s gonna ambush, barricade and so forth, and again, no evidence can be destroyed, then I think the best course of action here is go get a warrant.
Okay, that’s my answer, hopefully it helps. There’s no specific case law that I can think of on this issue, but that’s how I would analyze it.
All right, hope it helps. Keep safe, and I’ll see you guys next time.
The short version
- I do not believe that you can go in based off of consent. I do believe that Randolph controls here.
- The idea in Randolph is not necessarily of searching. The idea is you cannot be in a home when a cohabitant with equal authority over that home is saying leave.
- The home is the most protected area in the Fourth Amendment. So if the husband says leave, do you have to leave? The answer is yes.
- If we’re going to get into that home, we’re going to need some form of exigency.
- If there is anybody else in that house, I’m sure it’d be very easy to articulate that somebody is in imminent or immediate harm inside the home. That gets you in there.
- Is there evidence in that home that could be destroyed before cops come back with a warrant?
- If she is lawfully present, which she is, then you can be lawfully present under exigency to protect her.
- There’s no specific case law that I can think of on this issue, but that’s how I would analyze it.
Related from Blue to Gold
- Can Police Enter Locked Room to Arrest DV Suspect?
- Constitutional Considerations of Warrantless “Surround and Call-Outs”
- Can Cops Order Suspect Out of Home During DV Call?
This article is an edited transcript of Roadside Chat Ep. #283. 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.
