A Few Questions For My Lawyer Friends
By Mitch Berg
I’m asking purely hypothetically, here. It’s an intellectual exercise. No hint of “legal advice” is being solicited, and I acknowledge that you, a member of the Bar, will not be providing any.
1. Under what circumstances may police enter a home? I mean, short of hot pursuit? I’m aware that if someone invites the police into their home of their own free will, it’s “consent”.
2. Who may give “consent” to enter a home? Specifically, may a minor with no responsible adult present in the house give consent?
3. Hypothetically, if a minor (with no parent present in the home) specifically tells the police to wait at the door, may the police enter the house?
Again – I am asking purely as an intellectual exercise, on behalf of someone else.
Thanks.
September 1st, 2008 at 1:01 pm
“3. Hypothetically, if a minor (with no parent present in the home) specifically tells the police to wait at the door, may the police enter the house?”
No. Unless they have a warrant or they see / hear something through the open door that can be characterized as an exigent circumstance (an assault, destruction of evidence, etc. )
This is off the top of my head. The law-talking books are downstairs, and I don’t feel like getting up.
September 1st, 2008 at 1:55 pm
Not being a lawyer, but having spent some time looking at this stuff:
1. Warrant, exigent circumstances, or permission. It’s amazing what a court considers “permission”; a door not being locked, for example.
2. Anybody who can give permission for anybody else to come in. Homeowner, guest, whatever.
3. Nope. But the poor dears do, upon occasion, get somewhat hard of hearing; good locks, amazingly, when engaged, are a hearing aid, often.
September 1st, 2008 at 4:11 pm
Saw it on Law & Order.
Once invited in, they can enter and leave as they please until the invitation is revoked. Without an invitation they cannot enter, even to escape the sunlight that’s burning their flesh.
No, wait, that was Buffy the Vampire Slayer.
September 1st, 2008 at 4:47 pm
Not being a lawyer…
Stop right there.
I spent some time looking at an airplane flying overhead but a pilot it did not make me.
I tried to rearrange the words in your comment but still could not form sentences.
Must be me.
September 1st, 2008 at 6:27 pm
That’d be the way to bet.
September 1st, 2008 at 8:01 pm
This exchange where a cop and a law prof debate the pros and cons of talking to the cops under any circumstances without a lawyer leads to a strange agreement: talking to the cops is a losing game even if you’re 100% innocent, or you think you are at least. Long at 45 minutes, but watch both videos to see why they make that statement.
You think you’re innocent and just helping? Check out that first video by the law prof for the trouble you can get into for doing your honest best to help. I doubt any non-lawyer will avoid the trap he sets, even though he warns you he’s setting it — even a fair number of his law students fell for it! The 5th Amendment isn’t a bad thing given the disparity in power between a citizen and the government.
I guess this is legal advice, but I’m not the one giving it. A law prof and a cop are. And it echoes the advice I’ve been given by various members of the law enforcement community.
September 1st, 2008 at 8:31 pm
I get a fair number of folks with experience in the criminal justice system — cops, former cops, defense lawyers, prosecutors, serving and former — taking my carry classes. I always ask them if they’ve ever known a case of anybody who has managed to talk himself or herself out of trouble.
All say no, they haven’t; almost all of them laugh.
September 1st, 2008 at 9:09 pm
Mitch, I’ll be very dissapointed if you are teaming up with Dave Thune to defend the terrorists in St Paul.
September 1st, 2008 at 9:40 pm
I hear Peevish has a neighbor…
🙂
September 2nd, 2008 at 11:49 am
Not legal advice but:
1. Under what circumstances may police enter a home? I mean, short of hot pursuit? I’m aware that if someone invites the police into their home of their own free will, it’s “consent”.
Generally the police may enter a home:
Execute a warrant (search or arrest)
Consent of owner, occupant, or someone else who might have standing to consent
Hot pursuit
Able to observe evidence of criminal activity from a place that they are legally allowed to be (e.g. from an open doorway)
Emergencies (e.g. think someone might be in danger)
Note: keep in mind that these are the general rules for Fourth Amendment protections against unreasonable searches and seizures. The State in question might have stricter rules but I don’t know what they are. Also Fourth Amendment cases tend to be very fact specific so your “friend” will probably need to provide a lot more details.
2. Who may give “consent” to enter a home? Specifically, may a minor with no responsible adult present in the house give consent?
Possibly – how old is this “minor” (and how old do they look)? If they’re closer to or look closer to 17 then 7, I’d guess that a court might uphold their consent. However keep in mind that there may be circumstances where their consent is immaterial (see below).
3. Hypothetically, if a minor (with no parent present in the home) specifically tells the police to wait at the door, may the police enter the house?
Possibly, depending on the exigent circumstances. If the police say that they thought someone was in danger or they were able to observe evidence of criminal activity from a place that they were legally able to be, then they can probably enter even if told not to by the owner.
Disclaimer: the preceding was not legal advice and I do not practice criminal law.
September 2nd, 2008 at 12:20 pm
One historical perspective I’ve seen from Akhil Reed Amar (in his book about the 14th Amendment; he’s a prof at Yale Law) is that the key phrase there, as understood in the founding era, was not the “warrant” clause, but rather the “unreasonable” clause. That is, law officers did not need a warrant if they could demonstrate a good reason to go in, but could face civil action if their actions were not deemed “reasonable.”
The acquisition of a warrant, then, only served to protect the officers from this liability, NOT to authorize the search.
But that said, key issue is “is the search reasonable?” for all of Mitch’s questions, IMO. What evidence exists that a search will find prosecutable evidence with such a search?
September 2nd, 2008 at 2:15 pm
This goes back to the OJ trial but there is also the matter of “specified purpose”. When Detective Furhman entered OJ’s house they started rifling through drawer, “apparently” under the premise that a grievously injured person in need of medical help had entered the house (and somehow shrunk to fit inside a drawer?) As a practical matter if you call 9-11 with heart attack symptoms and the police “assist” the paramedics when you are on the couch this does not give the police the right to search the basement or garage.
Mostly, this can backfire in court. If a judge throws it out the judge is anticipating this.
September 3rd, 2008 at 11:17 am
This is not the first time a blogger has red-herring’d to keep the comments coming in while he took a day (or two) off.
Do you really think that somebody would ask for personal legal advice on their blog????
Now that would be stupid.
September 3rd, 2008 at 12:34 pm
Mitch – though your situation may be resolved, this is what a friend of mine who works as criminal defense counsel said:
“Short of hot pursuit, police may enter a home only with 1) Consent , 2) Imminent danger to life, 3) valid search warrant.
On the issue of consent: Generally any member of the household may give consent, although that varies from state to state. A very small child would probably be deemed not to be able to give consent. However, a 16 or 17 year old may very well be deemed to be able to give consent.
For instance: If the police hear screams and see smoke coming out of the house, they may validly enter.
If the police have a valid search warrant, (or in some cases, an invalid search warrant) they may enter a home.
They may also enter a home in furtherance of an arrest warrant.
Penigma says:
Ok – and on the issue of being told to ‘wait’ by a child, must they wait?
Phil says:
Yes. They shouldn’t be able to barge into a house just because someone cracks the door.
Phil says:
If this has happened to your friend, and they siezed something, he/she needs to consult with competent counsel asap.
Penigma says:
and, i assume, the limit of any purpose or warrant must still be followed. I.E. there’s a fire, you don’t go through searching peoples filing cabinets – only that which is ‘in plain sight’ is open to their perview?
Phil says:
If there’s a fire, they better not be searching.. at least not u ntil afterwards.
Phil says:
But you’re right. They can’t go searching through file cabinets. On the other hand, if something is sitting out, and they can see that, its fair game.
Fair warning – as you already know, I’m not an attorney – this doesn’t constitute legal advice either by me, or on behalf of ‘Phil’ – but I hope offers some general guidance. This person works in Kansas, and so his advice is limited to Kansas (and I think Misouri) law. His and my best suggestion is to talk to competent defense counsel if the issue isn’t resolved already.