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Attorney Question Of The Month

Last month, we asked our affiliated attorneys about warrantless searches, receiving so many responses that we continue the topic this month, with answers to this question:

Following the house-to-house searches law enforcement conducted after the Boston Marathon attack, a lot of Network members emailed to ask if they could deny police entry into a home or vehicle under emergency conditions. Absent a search warrant, do citizens have a right to deny law enforcement entry into their home? How do you recommend that the average armed citizen invoke their rights if they wish to prevent a warrantless search of their premises?

Bruce Finlay
Bruce Finlay Attorney at Law
P.O. Box 3, Shelton, WA 98584
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The general rule under the Fourth Amendment is that warrantless searches are per se unreasonable, and therefore unconstitutional. But, there are a number of exceptions to the warrant requirement. These exceptions are narrowly drawn and jealously guarded, in order to keep the exceptions from swallowing the rule.

The exceptions include hot pursuit and exigent circumstances, which some lawyers argue would apply in the Boston situation. I disagree for the following reasons. The hot pursuit exception, also sometimes called fresh pursuit, provides that the police may enter the premises where they suspect a crime has been committed or a violent suspect will be found without a warrant when delay would endanger their lives or the lives of others and lead to the escape of the alleged perpetrator. But it is highly doubtful to me that it would apply in the Boston situation, because the police had no idea into which house, if any, the suspect had fled.

But, even though the law most probably does not support the home searches, under the circumstances, this would be a difficult decision for a judge to make.

Judges are as human as anyone else, and many people have been disappointed in judicial decisions after standing firm on what they justifiably believed were their constitutional rights. Moreover, at the time of the search, it would be almost impossible for the homeowner to know whether the police had probable cause to believe the suspect was in his or her house, even if the homeowner knew he was not.

Exigent circumstances allows police to search without a warrant if all of the circumstances known to the officers at the time would cause a reasonable person to believe that entry or search was necessary to prevent physical harm to the officers or other persons, prevent the destruction or concealment of evidence, prevent the escape of a suspect, or give immediate aid to a person within the area to be searched and there is insufficient time to obtain a search warrant. A search warrant requires probable cause, which must be individualized. In other words, the police must have facts or circumstances sufficient to cause a person of reasonable caution to believe that the place being searched is where the suspect will be found. While there was arguably an emergency in Boston, the police had no apparent idea where the suspect was; in other words, no individualized probable cause.

Now the hard part: If you deny entry, the police may come in anyway if they consider it important enough to do so or if they believe they have the right to come in and search. If you resist their entry, they may use force and you may get injured or charged with obstructing law enforcement or even assault on an officer; at the very least you will delay the police search. You are generally not entitled to use force to repel an unlawful police entry under the law of many states, unless you have solid grounds to believe you are about to be injured by the police.