August 2013 - Pg 10-Attorney Question of the Month
Attorney Question Of The Month
For the past several months, we’ve asked our affiliated attorneys a question about warrantless searches, receiving so many responses that only this month do we wrap up 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?
Eric W. Schaffer
Attorney at Law
Schaffer, Black & Flores P.C.
129 W. Patrick St., #5, Frederick, MD 21701
As the Grateful Dead said “… if you got a warrant, I guess you’re gonna come in…” Absent that thought, the short answer is yes, citizens generally have a right to deny law enforcement entry into their home. It is long settled under both Federal and Maryland law that physical entry of the home is “the chief evil against which the wording of the Fourth Amendment is directed” (Riddick v. New York, 445 U.S. 573); and that a warrantless entry is presumptively unreasonable. In Maryland there are exigent circumstances where the police can enter your home without a warrant: hot pursuit of a felon, a crime being committed in the view of the officer, imminent destruction of evidence, or the reasonable belief that an occupant is seriously injured or in danger of imminent serious injury.
Of course, no matter what the circumstances are if you invite the police in–either explicitly or implicitly–they are allowed to enter. For that reason I would advise people to politely ask the police through a barely cracked door or (even better) a side window if they have a warrant. If they do not, tell them to leave and shut the door/window. The police are either going to come in or follow the law and go away.
In our state while there is a long recognized common law right to resist an illegal arrest with non-deadly force there is no corresponding ability to legally resist an unlawful intrusion into your home so at that point if they do decide to make entry any legal remedy you have will be through the court system. I would also suggest that you have someone prepared to photograph/record the incident, but do it in a careful manner so that no one can misinterpret the object you are holding. Lastly I would advise that you have this discussion with all members of the household so that they know what to do in the unlikely event that this happens. If one household member gives consent then the police will have a “good faith” basis for warrantless entry no matter what other occupants may say.
Lapin Law Offices, P.C.
P O Box 802401, Dallas, TX 75380
As an attorney who has been in private practice since 1999 and who represents firearms owners in both criminal and civil actions, as well as a former municipal police officer who has personally participated in serving numerous search warrants as well as having been involved in many more warrantless searches, I hope to offer both a practical and legal perspective to these questions.
As an initial matter, whether citizens have the right to deny law enforcement entry to their homes, probably is not the question citizens should be asking themselves when police arrive at their doorstep.
Under certain circumstances, known in legal terms as “exigent circumstances,” it is lawful for police to conduct searches without a warrant. However, the exigent circumstances exception to the requirement for a warrant is just that: an exception. Courts should narrowly construe exceptions to legal rules – including the exigent circumstances exception.
Cases in which police believe exigent circumstances exist always, by definition, involve some sort of perceived emergency.