A roadside chat from the studio. This one comes from an officer in Texas, where they call domestic violence family violence, and it has a few moving parts in it.
Can we order domestic violence suspects out of their home?
I’m going to call this question: can we order domestic violence suspects out of their home? You’ll see that it’s much more complicated than that, but let’s keep it short and sweet, and let’s kind of make that the central focus. But let me give you some context here.
The officer says: call to investigate a domestic violence. They call this family violence in Texas. Statements were made by the victim to dispatch confirming they were assaulted, so the victim is saying yes, I was hit. Officers got on scene. Now the victim becomes uncooperative. More importantly, the suspect refuses to come outside to talk with you, and both parties refuse to allow you inside to talk to them. So we’ve got like a little standoff situation here.
So I know that the suspect would be detained given these facts, and that you can control their movements. Does this also include ordering them to come out of the home for the investigation?
The answer is certainly you can order them to come out. I mean, it would be, I guess, a lawful order in a sense. You’re trying to get them out, and it’s a lawful order because you can also go in.
Is it a lawful order to tell someone to come out of their house?
All right, so in other words, even if a cop had reasonable suspicion or even probable cause that somebody inside a home committed a crime, but there is no exigency, and the officer sees that guy through a window and says hey, come out of your home, I got probable cause for you, come out. And the guy says I’m not coming out. And the officer says I’m giving you a lawful order, if you don’t come out of your home I’m gonna hit you with some more charges, obstructing, evading or something like that.
That would not be constitutional, because the person in the home has a right to be free from government intrusion unless you have an exception to the warrant requirement. Well, the exception to the warrant requirement, it includes consent. He doesn’t, here he’s not giving consent, so that doesn’t work. Or a recognized exception. A recognized exception includes things like exigency, emergencies.
What creates exigency on a domestic violence call?
So going back to our question here, the officer has exigency. First of all, dispatch already, or the victim already told dispatch that she has been assaulted, that she has been injured. Now when the cops arrive on scene she’s changing her tune. However, it could be one of these like hostage situations or coercion. The suspect here could be saying hey, if you don’t get these cops to leave I’m gonna hurt you. You know what I’m saying? So the cops don’t know this.
Do police enter homes under community caretaking or emergency aid?
And let me read a quote that kind of brings us home when it comes to entering homes. Now first of all, you don’t enter homes under community caretaking. You enter homes under the emergency aid exception when it comes to these domestic violence calls.
This is Wayne LaFave, the great Wayne LaFave. If you know about search and seizure, you know that I’m a big fan of. Who’s not a big fan? I’m a big fan of Wayne LaFave. He is the godfather of search and seizure, and he has six volumes on the Fourth Amendment, just search and seizure. So he says:
“Thus the question is whether there were reasonable grounds to believe that some kind of emergency existed, that is, whether there is evidence which would lead a prudent and reasonable official to see a need to act. The officer must be able to point to specific and articulable facts which, taken with rational inferences from those facts, reasonably warrant that intrusion,” like going into the house. “But as emphasized by the Supreme Court, this probable cause requirement must be applied by reference to the circumstances then confronting the officer, including the need for a prompt assessment of sometimes ambiguous information concerning potentially serious consequences.”
Like, if I don’t act. Yeah, the victim is saying everything’s okay, don’t worry about it, please go away. But if I don’t act, what could be the consequences? As one court usefully put it, the question is whether the officers would have been derelict in their duty had they acted otherwise.
So if the officer just leaves, could it be like derelict in their duties, would the department be like hey, that’s not how we handle these calls? The answer is probably yes. But remember, just to make sure everybody’s okay is not the answer either. You need an emergency aid exception.
So the answer is, can we order these people out? You can order them, because you do have lawful authority to actually go into the house. So it would be a lawful order to try to have it on your terms. However, if they don’t come out, then we can go in.
Is running back inside the house evading arrest?
Now, if we are outside the home with the suspect and we make it clear that they are detained, and they flee inside, they will now have committed evading under Texas law, and that’s an arrestable offense. This, now coupled with some other exigent circumstance, would justify entry into the home to arrest for that offense under hot pursuit. He’s asking us a question, but the answer is yes, I am totally in agreement with this.
If you’re working a domestic call and you’re outside the home and they start fleeing inside the home, you do have exigency. Because, well, normally you would. I mean, especially in a place where there could be guns. They could go grab a weapon, they could grab a knife. You also know from your training and experience that family violence calls are some of the most violent and vicious and dangerous calls that police officers can be on. So are you really going to let this guy just go into the home and barricade or grab offensive weapons? The answer is no in many cases.
What if the domestic call is verbal only?
Now remember though, the underlying premise here is that this is a legit domestic call. If it’s verbal only, if it’s verbal only, you have no facts or circumstances to believe that either A, physical violence occurred in the past, or B, that physical violence can occur in the future. Be careful, that might not be emergency aid. Just be careful. You got to make these decisions for yourself. So I do believe that’s evading.
Is it evading if the suspect was already inside and runs to a back bedroom?
All right, now the final one. The officer is asking, if you saw them inside the home and you have the reasonable suspicion to detain them, and they do not come out, and they flee, they’re already inside the home, you see them through a window and they flee into the home like in a back bedroom or something, would that be evading?
Look, I don’t think that’s evading under Texas law, but I could be wrong. I’m not the statute expert, my cops are. But I don’t see how that would be evading. They’re inside their home. I just don’t see that.
What is the bottom line on ordering someone out of a home for domestic?
All right, so there’s your answer. To wrap it up: can you order people to come out of a home for domestic? If you have a right to enter the home, you have a right to order them out. That’s a lawful order. If they don’t come out, then you’re going to do what you’re going to do, and safety and so forth.
If they’re outside the home and they flee inside the home, we know that even if it’s a misdemeanor, we do usually have exigent circumstances here to keep the situation safe from becoming volatile and cops getting hurt and injured and killed. Also don’t forget about people inside the home. They can be hurting that person.
I hope this helps. I hope I moved the ball forward even by an inch. Until next time my friends, stay safe.
The short version
- The answer is certainly you can order them to come out. It’s a lawful order because you can also go in.
- The person in the home has a right to be free from government intrusion unless you have an exception to the warrant requirement.
- You don’t enter homes under community caretaking. You enter homes under the emergency aid exception when it comes to these domestic violence calls.
- Just to make sure everybody’s okay is not the answer either. You need an emergency aid exception.
- If you’re working a domestic call and you’re outside the home and they start fleeing inside the home, you do have exigency.
- If it’s verbal only, you have no facts or circumstances to believe that either A, physical violence occurred in the past, or B, that physical violence can occur in the future. Be careful, that might not be emergency aid.
- I don’t think that’s evading under Texas law, but I could be wrong. I’m not the statute expert, my cops are.
- Also don’t forget about people inside the home. They can be hurting that person.
Related from Blue to Gold
- Can Police Enter Locked Room to Arrest DV Suspect?
- Constitutional Considerations of Warrantless “Surround and Call-Outs”
- When Can Police Force Entry on a Suicidal Subject Call?
This article is an edited transcript of Roadside Chat Ep. #204. 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.
