The Virginia Supreme Court Issues an Important Ruling about the Authority of the Police to Make Warrantless Entries onto Residential Property
by Jack E. Call
Professor of Criminal Justice
Virginia Police Legal Bulletin, Vol. 2, No. 2, September 2007
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The year 2007 is far from over, but the Virginia appellate courts have already decided three very important cases dealing with the authority of the police to search residences. One of those cases (Robinson v. Commonwealth), decided by the Virginia Supreme Court, was widely reported in the newspapers. (See another article in this issue of the Bulletin for a discussion of the other two cases, decided by the Virginia Court of Appeals). It involved a party hosted by the parents of a teen-aged boy who decided to hold a party at their home and serve beer to their son and his friends.
After the police received at least three telephone calls suggesting that underage drinking might be taking place at the Robinson home, Officer Cox was dispatched to the home. When he arrived, he noticed a large number of cars parked along the road in front of the home, as well as along the driveway to the house. The officer drove up the driveway and approached a sidewalk (referred to by the court as a “path”) that led from the driveway to the front door of the house. (The driveway proceeded on past the sidewalk to a garage to the right of the house).
Before Officer Cox reached the path from the driveway to the house, he observed two young people with beer bottles in their hands who were standing 7-10 yards beyond the path (in the backyard) and who appeared to be less than 21 years old. When those two individuals saw the officer’s vehicle, they yelled “cops,” dropped their bottles, and ran toward some woods behind the house. Officer Cox proceeded into the backyard in pursuit of these individuals and other youths who were now running as well. From this vantage point, the officer observed considerable evidence suggesting that the adults who owned the home had served alcohol. The issue in the case was whether this evidence was admissible since Officer Cox did not have a warrant to be on or to search the premises.
The Virginia Supreme Court held that Officer Cox could proceed into the curtilage of the home without a search warrant. The court began by declaring that the law recognizes an implied consent from a property owner for the police to enter the curtilage to contact the property’s residents. (The curtilage is the area immediately surrounding the home, used for private activities associated with the use of the home).
Under this rule, Officer Cox was justified in proceeding to the front door of the Robinson home without a search warrant. Of course, in this case Officer Cox did not go to the front door. Before doing so, he observed what reasonably appeared to be two juveniles holding beer bottles. The court ruled that this gave Officer Cox probable cause to arrest the two juveniles for underage drinking.
However, the court indicated that in order to go into the backyard without a warrant, Officer Cox also needed exigent circumstances. The court concluded that exigent circumstances were present. After observing the two juveniles with beer bottles and juveniles running away from the officer, it was reasonable to think that delaying at that point to obtain a warrant would have created “a high probability that evidence of the crimes would have been destroyed by the time [the officer] returned. Moreover, given the number of cars parked on the street and in the driveway, Officer Cox could reasonably have believed that a number of juveniles in attendance may have been inebriated and could have injured themselves or others, either by running into the woods at night or by attempting to drive away from the residence. These factors constituted exigent circumstances and justified Officer Cox's warrantless entry into the backyard.”
The scenario in the Robinson case is one that police officers can expect to encounter from time to time, especially in college towns where a substantial number of students live off-campus (although it won’t usually involve parents providing alcohol to juveniles). The case sets forth some rather straightforward rules to guide the actions of police officers. First, if an officer observes something suspicious or has received a report (even an anonymous, totally uncorroborated report) about a particular residence, the officer may go to the residence and proceed to the front door without a warrant to make inquiries. As the Virginia Supreme Court mentions in the Robinson case, the U.S. Supreme Court has never held specifically that this is permissible, but the lower court support for it is so overwhelming that it is virtually inconceivable that the Court would ever rule otherwise.
In most cases, it should be pretty obvious where the police officer may go, but in cases where it is not so obvious, the officer should observe the premises and proceed by the route that it is reasonable to think any member of the public would take to knock on the door of the residence. This does not mean, for example, that the officer may go up a driveway and walk all the way around the house to get to what appears to be the front door. Nor should the officer proceed to a door to the basement of the house that is accessed from the backyard.
Second, the officer may only deviate from this direct route to the front door and go onto other portions of the residential property without a warrant if she has observed something that gives her good reason to think that there is an emergency that needs the officer’s immediate attention. In the Robinson case, Officer Cox observed – before he had passed the path that lead to the Robinson’s front door – two exigent circumstances. He had observed what he had probable cause to think was underage drinking, and he would not have been able to make the arrests for those offenses if he had left to obtain arrest warrants. Also, he had observed a substantial number of cars around the residence. If he had not pursued the juveniles who were fleeing and taken them into custody, there was a substantial chance that some of them would have gotten into cars and driven in an intoxicated condition. (One could argue that this was a more important exigent circumstance than the need to make the arrests).
It is important to note that in this case, the police officer went into the cartilage of the home without a warrant, not into the home itself. For example, what if the officer had not observed anything outside the home that gave him probable cause to think exigent circumstances were present? Instead, let’s assume that he had gone to the front door to make inquiries and then noticed the same two juveniles inside the house with beer bottles. Could the officer have entered to arrest the juveniles without a warrant? In my opinion, the answer to that question is still in some doubt.
In Welsh v. Wisconsin (1984), the U. S. Supreme Court held that the police could not make a warrantless entry of a home to obtain a blood sample from a DUI suspect. (The police had gone to Welsh’s home not long after receiving a tip from someone who had observed Welsh drive his car erratically and then off the road – to a place where the vehicle could no longer be driven. The informant told the police that Welsh was either drunk or very sick). At the time, drunk driving in Wisconsin was a non-criminal offense. The Court held that this offense was too minor to justify a warrantless entry into a home, even though the officer had probable cause to think Welsh had been driving drunk and the evidence of the offense – Welsh’s blood alcohol content – would dissipate of the officer delayed to obtain a warrant authorizing entry of the home.
In a more recent case, Stuart v. Brigham City (2006) (discussed in an earlier issue of the Bulletin), the Court dealt with another warrantless entry of a home. In that case, two officers had observed through a kitchen door four adults and a juvenile in an altercation. The officers also observed the juvenile strike one of the adults. The officers entered the kitchen of the home without a warrant to arrest the adults for contributing to the delinquency of a minor. (The officers in this case had also observed underage drinking in the backyard of the residence). The defendant had argued Welsh prohibited the warrantless entry because the offense that initially justified the entry (the battery committed by the juvenile – a misdemeanor) was too minor to permit warrantless entry of a home.
The Court permitted the warrantless entry and indicated that “the ‘only potential emergency’ confronting the officers [in Welsh] 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].
As I said in my discussion of Stuart in an earlier issue of the Bulletin:
This latter aspect of [Stuart] may be especially significant. I have always cited Welsh 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, and none of the Justices chose to comment on this difference in emphasis.
If the Court decides a case like the one we have hypothesized (where the officer sees the underage drinker in the house, rather than in the yard), would the Court place its emphasis on the seriousness of the offense of underage drinking (as it did in Welsh) or the danger posed by that behavior (as it did in Stuart)? If it decides that Welsh is the more relevant case, it might well conclude that underage drinking (in the home, at least) is less serious than driving under the influence. Therefore, warrantless entry to arrest the underage drinkers is impermissible. On the other hand, if it decides that the key is the dangerousness of the behavior confronting the police, underage drinking in a home is presumably less dangerous than fighting and, again, the warrantless entry is illegal. Consequently, there is a very good chance that the Court would take a different approach to a case where an officer observes underage drinking in a home than it would to case of observing underage drinking in the yard. In any event, police officers should be aware that the legality of entering a house without a warrant to make an arrest for underage drinking, even where exigent circumstances exist to think the underage drinker would flee if the arrest is delayed until a warrant is obtained, is very much open to dispute at present.
Disclaimer: The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.
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