The English common law dictum, “an Englishman’s home is his castle,”—a term coined by 17th century English jurist Sir Edward Cooke—was brought to America by the early English colonists and would ultimately inspire the Fourth Amendment to this nation’s Constitution. That cherished amendment reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Through the evolution of this nation’s constitutional law, the courts have carved out the following exceptions to the Fourth Amendment’s warrant requirement:
The Texas Court of Criminal Appeals in a split decision recently had an opportunity to address the circumstances under which the police may enter and search a residence when there is suspicion of domestic violence. The incident in question occurred in the very early morning hours of May 8, 2008. Two Kerr County deputies responded to a report by a third party that there was yelling, screaming, and sounds of objects being thrown around in the apartment of Christina Jean Miller. The officers arrived at the apartment where vehicle video cameras and audio body recorders captured what transpired at the Miller apartment. The appeals court listed the following “chronology of events” that set the stage for the Fourth Amendment issues before the court on Miller’s direct appeal from a guilty plea conviction of possession of a controlled substance:
In 2006 the U.S. Supreme Court in Georgia v. Randolph gave the police the authority “to enter a dwelling to protect a resident from domestic violence; so long as they have good reason to believe such a threat exists, it would be silly to suggest that the police would commit a tort by entering, say to give a complaining tenant an opportunity to collect belongs and get out safely, or to determine whether violence (or threat of violence) has just occurred or is about to (or soon will) occur, however much a spouse or other co-tenant objected. (And since the police would then be lawfully in the premises, there is no question that they could seize any evidence in plain view or take further action supported by any subsequent probable cause.)”
Here the police received an anonymous third-party “disturbance call” of domestic violence. They proceeded to the Miller residence under that impression. They found Miller who, although upset and intoxicated, invited the police into her residence and informed them there had been no domestic violence. She did not display any physical evidence of bodily injuries. Once she had explained the reasons for her emotional upset, she asked the police to leave her residence, not once but four times. Not only did the police ignore those requests, they began a visual search of the residence for evidence of criminal wrongdoing without any probable cause to do so.
As the Court of Appeals observed: “… The record reflects that, when he first arrived at [Miller’s] door, Deputy Yarbrough was approaching the situation as a domestic assault, already seemingly having decided, before any contact with [Miller], that the third-party report of yelling, screaming, and the sounds of objects being thrown in [Miller’s] apartment were sounds of domestic assault, a not unreasonable conclusion. But somewhat contradictorily, he also appears to have assumed that the perpetrator had left and that [Miller] might think the perpetrator had returned.”
The appeals court correctly pointed out these initial assumptions by Deputy Yarbrough “colored his behavior” throughout his interactions with Miller. This was evidenced by the fact that the police after being told by Miller that her boyfriend was not in the residence did not “attempt to search the apartment for him or anyone else.” That failure is significant because the police would have had probable cause to search based on possible “ endangerment” to Miller’s two “babies” (a 2 and 11 year old) because of her emotional state and obvious intoxication. Instead “Deputy Yarbrough continued to treat the situation as a domestic assault, pressing [Miller] for her boyfriend’s name and whereabouts, even after several denials of physical contact or knowledge of the boyfriend’s location and with no evidence of physical harm.”
There is no question but that the officers had the authority to “complete their investigation” into a report of potential domestic violence; however, the noises the officers heard prior to making any contact with Miller, her obvious intoxication, and the “disarray” in her apartment did not, standing alone, justify their continued presence in Miller’s apartment absent any evidence of a physical assault by the non-present boyfriend, especially after the officers were asked four times by Miller to leave her residence. This conclusion is supported by the appeals court’s finding that the “emergency doctrine” did not apply with respect to the children because the officers “made no attempt to search the apartment for [Miller’s] boyfriend or children.” Absent an emergency “to protect life or avoid serious injury” to the children or the risk for the destruction of evidence, the police should have exited the residence when requested to do so by Miller because she had the absolute right to revoke at any time her initial “consent” for the officers to enter her residence.
It is not often that the Court of Criminal Appeals will find a search unreasonable. This is one of those cases where the police conduct was so egregious that no other conclusion could be reached. It stands as a reminder to the police that absent a clear evidence of wrongdoing they must “get out” of a person residence when asked or told to do so. Miller’s apartment was indeed her “castle” in this situation. Thank goodness!
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