A Publication of the Virginia Police Legal Advisors Committee
|Two Recent Supreme Court Cases
Relating to the Privacy of the Home
by Jack E. Call
In two recent cases, the Supreme Court decided two very different issues that nevertheless provided the Court the opportunity to discuss the privacy of the home. In the first case, Georgia v. Randolph, the Court dealt with the issue of third party consent. Janet Randolph was estranged from her husband, Scott, and had moved to her mother’s house with their son. Some time later, she returned with her son to the home she had shared with Scott (for reasons that are not apparent from the case record). This resulted in an argument between Janet and Scott. As a result, Scott left with their son, and Janet called the police in an effort to enlist their help in getting her son back. She told the police that her husband was a cocaine user. After the police came to the couple’s house, Scott returned (without the child) and indicated to them that Janet was the one with a drug problem.
One officer went with Janet to find the son. When they returned, Janet volunteered that Scott had drugs in the house. Scott refused a request from the police for consent to search the house, so they asked for and received Janet’s consent. Based on Janet’s consent, the police searched the house and found a straw with a white, powdery residue that they suspected (accurately, it turned out) was cocaine. The issue was whether the police could search on the strength of Janet’s consent when Scott was present and objected to the search.
In a previous case, the Court had ruled that a third party can consent to a search of the premises that it shares with another person against whom the police sought evidence. The Court reasoned that when a person shares premises with another person, he or she assumes the risk that the other person will admit others to those premises. The Court referred to this mutual control over the premises as common authority. In a subsequent case, the Court indicated that this third party consent is valid even if the third party does not have common authority over the premises, so long as it reasonably appears to the police that the person giving the consent has common authority – often referred to as apparent authority (a kind of good faith exception in third party consent search cases).
In Randolph, the Court ruled (5-3) that Janet’s consent to search was invalid, because Scott was present and objected to the search. (Although it could be argued that since Janet has not lived in the house in quite some time she lacked apparent authority to consent to a search of the house, the Court did not address this issue). Thus, the Court ruled that the police may not search a place without a warrant based on consent to search given by a person with common authority when another person with common authority is present and objects to the search.
The dissenters were concerned that the majority’s ruling would interfere with efforts by the police to deal with domestic disputes in which one party in the dispute was at risk of physical harm. The majority responded that “this case has no bearing on the capacity of the police to protect domestic victims. The dissent's argument rests on the failure to distinguish two different issues: when the police may enter without committing a trespass, and when the police may enter to search for evidence. No question has been raised, or reasonably could be, about the authority of the police 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 the opportunity to collect belongings 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.”
In the second case during the present term touching on the privacy of the home, the privacy issue was addressed even more directly. In Brigham City v. Stuart. After responding to a complaint about excessive noise, the police went to a residence where they observed through a screen door and two windows an altercation that appeared to involve four adults who were confronting a juvenile in the kitchen of the house. When the officers observed the juvenile take a swing at one of the adults, the officers entered the house to stop the fight. The government justified the entry based on the need to prevent imminent injury to the juvenile.
In upholding this argument, the Court rejected (unanimously) two arguments made by the defense. The first argument was that the officers did not enter the home for the purpose of preventing injury, but rather entered for the purpose of arresting the adults for contributing to the delinquency of minors (related to the underage drinking that the officers had observed before they saw the incident in the kitchen). The Court easily disposed of this argument by indicating that the subjective motivation of the officers at the time of their entry of the home was irrelevant, so long as the officers had an objectively reasonable basis for entering. In reaching this conclusion, the Court (predictably) cited its prior decisions in Scott v. U.S. (upholding a pretext search) and Whren v. U.S. (upholding a pretext arrest).
The second argument of the defense was more significant. The defense argued that the conduct observed by the officers was not serious enough to justify warrantless entry of a home. This argument relied on the Court’s decision in Welsh v. Wisconsin (1984). In that case, the Court held that the police could not make a warrantless entry of a home to obtain a blood sample from a DUI suspect. The Court responded that “[t] here, the ‘only potential emergency’ confronting the officers was the need to preserve evidence (i.e., the suspect's blood-alcohol level) – an exigency that we held insufficient under the circumstances to justify entry into the suspect's home…. Here, the officers were confronted with ongoing violence occurring within the home. Welsh did not address such a situation.” [Emphasis in original]
This latter aspect of the opinion may be especially significant. I have always cited Welsh (in my classes) as holding that the seriousness of the offense being investigated did not justify the warrantless entry. This seems like a logical interpretation of Welsh given the following language from that opinion:
“Our hesitation in finding exigent circumstances, especially when warrantless arrests in the home are at issue, is particularly appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries…. When the government's interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.”
Notice that in the language quoted above from Stuart, the Court emphasized the difference in the nature of the need faced by the police, not the seriousness of the offenses at issue. Perhaps this difference in emphasis is not significant. As indicated above, this was a unanimous decision, but none of the Justices chose to comment on this difference in emphasis. In addition, it is quite possible that when the comments quoted above from Welsh were written, the Court simply failed to envision the situation where the warrantless entry of a home is made to prevent physical harm rather than only for the purpose of making an arrest for a minor crime (after any danger created by the criminal behavior has passed) or collecting evidence.
A common underlying concern in both Randolph and Brigham City is when the police are justified in entering a private home without a warrant. The criminal justice decisions of the Supreme Court have been generally conservative since at least the mid-1970’s. However, even during this period of conservatism, the Court has demonstrated a clear desire to uphold the privacy of the home from unwarranted intrusions by the police. For example, in Payton v. New York, the Court held that the police may not enter a home to make an arrest without an arrest warrant, unless the entry is based on exigent circumstances or consent. In Kyllo v. U.S., the Court ruled that the use of a thermal imaging device to measure the extent of heat emanating from a residence intruded upon a reasonable expectation of privacy (and was therefore a search that must conform to 4th Amendment requirements) because the device was used to obtain information coming from the interior of the home. And as we have just seen, in Welsh v. Wisconsin the Court imposed restraints on the ability of the police to enter the home to obtain evanescent evidence.
The curious thing that these two cases remind us is that the Court has never ruled unequivocally on the standard that must be satisfied by the police with respect to the exigency that must be present to justify the warrantless entry. In other words, while it is clear that the police need probable cause to think a person has committed a crime in order to arrest that person, do they also need probable cause to think that some exigency exists that justifies entering a home without a warrant to make the arrest (or is some other standard applicable)? Similarly, do they need probable cause to thing an exigency exists in order to enter a home without a warrant in order to search (when probable cause exists to think contraband or evidence of a crime is in the home)? And do the police need probable cause (or is some other standard applicable?) to think someone in a home is in danger in order to enter the home without a warrant.
It could be argued that the Court addressed this issue (at least to some degree) in Minnesota v. Olson. Olson is remembered by most lawyers as a standing case. The Court held that the expectation of privacy possessed by an overnight visitor in a home is sufficient to give that person standing to object to the constitutionality of the entry. However, after ruling that Olson had standing, the Court considered the constitutionality of the warrantless entry by the police. In concluding that the warrantless entry was justified, the Court indicated that “[t]he Minnesota Supreme Court applied essentially the correct standard in determining whether exigent circumstances existed. The court observed that ‘a warrantless intrusion may be justified by hot pursuit of a fleeing felon, or imminent destruction of evidence …. or the need to prevent a suspect's escape, or the risk of danger to the police or to other persons inside or outside the dwelling." …. The court also apparently thought that in the absence of hot pursuit there must be at least probable cause to believe that one or more of the other factors justifying the entry were present and that in assessing the risk of danger, the gravity of the crime and likelihood that the suspect is armed should be considered.” (Emphasis added). In upholding the Minnesota Supreme Court’s conclusion that exigent circumstances were present, the Supreme Court indicated that it was “not inclined to disagree with this fact-specific application of the proper legal standard.”
Whether this case really resolves the issue of whether the police need probable cause as to the exigency that justifies a warrantless entry is not entirely clear. First, the Court uses somewhat curious language in its resolution of the exigent circumstance issue. It indicates that the Minnesota Supreme Court’s statement of the exigent circumstance rule was essentially correct, leaving one to wonder if the Court believed that the Minnesota Supreme Court was completely correct. In addition, rather than saying it agreed with the Minnesota Supreme Court’s resolution of the exigent circumstances issue, the Court said that it did not disagree with that conclusion – a somewhat tepid endorsement of the Minnesota court’s decision.
What’s more, the treatment of Olson by the leading authoritative work on search and seizure is quite curious. As anyone who reads the Supreme Court’s Fourth Amendment cases knows, LaFave’s treatise on search and seizure is so respected by the Court that it often cites the treatise in its opinions. However, while LaFave cites Olson in his various discussions of exigent circumstances, he never refers to it directly in his textual discussions. He only mentions the case in footnotes. If LaFave thinks Olson has resolved clearly the issue of whether the police need probable cause as to the exigency, that case should have been a central part of his discussion.
Second, even if Olson represents a clear resolution of the issue of whether the police need probable cause as to the exigency, it can be argued that the resolution is limited to the standard to be applied to exigencies that the police are relying on to justify a warrantless entry to arrest or to search and not to cases where the entry is to assist someone who may be in danger. When the police enter to render emergency assistance, the justification for entry without a warrant is of a different character than when the police enter to arrest or search. While there is clearly an important public interest in arresting persons who have committed crimes or in finding evidence of crimes, arguably there is a greater public interest in preventing imminent harm to persons, sufficient to warrant application of a standard less than probable cause.
The language used in Randolph and Brigham City with regard to this issue seems to be intentionally vague. As we have seen, in Randolph, the Court indicated that the police could “enter a dwelling to protect a resident from domestic violence; so long as they have good reason to believe such a threat exists.” In Brigham City, where the issue of the standard for establishing exigency was more directly related to the facts of the case, the Court indicated that “[i]n these circumstances [present in Brigham City], the officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence in the kitchen was just beginning.” The Court may be using vague language intentionally because it recognizes that its cases have still not resolved this issue and that Randolph (certainly) and Brigham City (probably) are not the appropriate vehicles for resolving it.
This is an issue that
merits clarification. Recently, I discussed Randolph and
Brigham City in a training session with a group of Virginia police
chiefs. Several of the chiefs were quite adamant that their officers
should be permitted to enter premises (and, in any event, would enter)
when they have reasonable suspicion to believe that someone in the home
is in reasonable danger of being physically injured.
A strong argument can be made that reasonable suspicion is the
appropriate standard. The argument in favor of reasonable suspicion is
supported by the possibility that the Court could use that as the
standard when the exigency is the need to prevent loss of life or
significant injury (emergency aid), while still using probable cause as
the standard when the exigency facing the police only interferes with
their ability to make an arrest or prevent the loss of evidence.
According to LaFave, many lower courts do make a distinction between an
emergency aid exception to the warrant requirement and a prevention of
loss of evidence or arrest exception. Establishing reasonable suspicion
as the standard in the former situation, while maintaining probable
cause as the standard in the latter, would be most sensitive to the
desire to maintain the sanctity of the privacy in the home. It permits
warrantless intrusions into the home on the basis of a
less-than-probable-cause standard only in those situations where the
need is the greatest.
 126 S.Ct. 1515 (2006).
 U.S. v. Matlock, 415 U.S. 164 (1974).
 Illinois v. Rodriquez, 497 U.S. 177 (1990).
 Justice Alito did not participate.
 126 S.Ct. 1943 (2006).
 436 U.S. 128 (1978).
 517 U.S. 806 (1986).
 445 U.S. 573 (1980).
 533 U.S. 27 (2001).
 See LaFave, Search and Seizure: A Treatise on the Fourth Amendment, sections 6.5 and 6.6, especially §6.5(d) and §6.6(a).
 495 U.S. 91 (1990).
 In sections 6.5(d) and 6.6(a) of his treatise, LaFave cites dozens of lower court decisions, but none are Virginia cases.