Can APD Enter My Home Without a Warrant?

Allow me to introduce everyone through written word to my two dogs: Flynn and Brooklyn – and also to my doormat.

 

 

Behind every joke is a cornel of the truth, and on top of my doormat stands a cornel of wisdom. The wisdom on my doormat is that generally speaking, under the Fourth Amendment of our constitution, an officer may not enter your home without a warrant.

My door is always opened to family and friends – and always closed to APD. In other words . . . Come Back With a Warrant.

Constitutional rights were created for a reason, and waiving them is always the wrong reason. I can assure you that Benjamin Franklin wouldn’t mindlessly waive one of the constitutional rights that he risked his life to birth. The ability to retreat into one’s home without government or police interference is a bedrock right that we all have as Americans – but that right can be waived by consenting to an officer entering your home.

 

WHEN CAN ALBUQUERQUE POLICE DEPARTMENT ENTER MY HOME?

 

New Mexico in particular frowns on officers entering one’s home without a warrant and the New Mexico Constitution – Article II Section 10 – provides an added layer of protection relative to the fourth amendment of the United States Constitution.

Your house is your castle and the Fourth Amendment functions as the moat between your yard and the door. Answer to whom you choose and open to likewise – APD or otherwise. But be wise – because consenting to an officer entering your home waives any right that you may hold.

This all begs the question – what is a “home.” First off, the fact that you lease or rent your home, apartment, or dwelling does not effect your legal rights. In fact, the definition of “home” extends to other locations where you are staying overnight such as a motel, or as an overnight guest in another person’s home. The key here is that you must be an overnight quest, not simply a casual visitor.

Now that we have the issue of what constitutes a home settled, generally speaking, a police officer is not allowed to place their foot beyond the doorway, or reach into your home without a warrant. Therefore, the police do not have the right to enter your home simply because you have opened the door – assuming that you remain inside the home, and are not standing in the doorway.

 

WHAT ARE THE REQUIREMENTS TO SEARCH MY HOME WITHOUT A WARRANT?

 

A warrantless search of your home is only justified in these instances: (1) When consent has been given for the Police to enter your home, (2) Emergency Situations, (3) When probable cause and exigent circumstances are present, (4) Hot Pursuit, (5) Plain View, (6) Protective Sweep.

 

Requirements for Home Search — CONSENT

 

Let’s take a look at the first exception to the warrant requirement – Consent. Similar to the warrantless search of your vehicle and personal property, you throw away your Constitutional rights by giving the Police permission to search your home, vehicle, or personal property. Often the Police will threaten you by saying that they have enough evidence to obtain a warrant, but they will not press criminal charges if you allow them to search your home, vehicle, or personal property without obtaining a warrant. This is exactly what happened in the New Mexico case, State v. Shaulis-Powell, 127 N.M. 667, 986 P.2d 463. In this case the Officers’ knocked on the Defendant’s home and informed the Defendant that they were investigating the presence of marijuana at the Defendant’s home. The Officer told the Defendant that “. . . if he consented [to the search] and marijuana was found, no arrest would be made at that time, whereas if a warrant was obtained and marijuana was found, arrests would be made.” Id. at 465. Based on this statement the Defendant allowed the Officer to search his home without a warrant. The Officers’ entered the home and backyard, discovering several marijuana plants growing. The Defendant was then placed under arrest for possession of marijuana with the intent to distribute – and the Court upheld the arrest despite the Officer’s statements.

Moral of the story: when you consent to an officer searching your vehicle, personal property, or home you are throwing away valuable Constitutional Rights.

 

Can APD Enter My Home Without a Warrant — EMERGENCY SITUATIONS

 

The second exception to the warrant requirement involves Emergency Situations. The Police may enter your home without a warrant under the emergency assistance doctrine when they believe that a person in your home is in need of immediate aid. To meet this standard the police must demonstrate that: (1) they have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property; (2) the search must not be primarily motivated by an intent to arrest and seize evidence; (3) there must be some reasonable basis – approaching probable cause – to associate the emergency with the area to be searched.

An example of an emergency situation includes a case where an individual called 911 and then hung up without providing additional information. During the call the operator could hear screaming within the residence and the sound of loud, banging noises. When the Officer approached the home he observed a person with a large cut on their head inside the home. Based on these facts, the Court held that the Officer’s entrance into the home without a warrant was justified. Other common examples include fires, or other natural disasters that threat an individual within the home, or sounds coming from a home that demonstrate that an individual inside the home is need of immediate aid.

 

Requirements for Home Search — PROBABLE CAUSE AND EXIGENT CIRCUMSTANCES

 

The third exception to the warrant requirement involves Probable Cause and Exigent Circumstances. In this respect, the police can search your home without a warrant when there is both probable cause and exigent circumstances. Probable cause means that the facts and circumstances known to the officer are enough for a man of reason and caution to believe that an crime has been or is being committed. Exigent circumstances means that an emergency situation requiring swift action to prevent immediate danger to life or serious damage to property, or to forestall the immediate escape of a suspect or the destruction of evidence.

Several New Mexico cases have examined “exigent circumstances” and include one case where an individual was suspected of driving while intoxicated and fled into his home to avoid arrest. In this case the Court held that the exigent circumstance was the dissipation of alcohol in the man’s system – a form of destruction of evidence. Another New Mexico case found an exigent circumstance for the police to enter the home without a warrant when an individual who had just left the home told police that there was an “active meth lab” in the home, and the chemicals used were dangerous and could cause an explosion. In both cases the New Mexico court fond both the requisite probable cause to believe that a crime had been, or was being committed – as well as exigent circumstances to believe that an emergency situation required swift action to prevent imminent danger to life, serious damage to property, or to forestall the immediate escape of a suspect, or destruction of evidence.

 

Can APD Enter My Home Without a Warrant — HOT PURSUIT

 

The fourth exception to the warrant requirement involves Hot Pursuit. Coupled with exigent circumstances, police may enter a home without a warrant when in hot pursuit. For this exception to apply, the police must have probable cause to believe that a serious crime has been committed, that the person they are pursuing committed it, and that he is in the dwelling they are entering. In Moore, a police officer was attempting to identify a burglary suspect and the defendant disappeared into his home. The court found the emergency was to determine if the defendant was still in the house. The court further held the police officer had probable cause to arrest and to search the defendant’s home to prevent his escape.

 

Requirements for Home Search — PLAIN VIEW

 

The fifth exception to the warrant requirement involves Plain View. The plain view exception to the Fourth Amendment occurs under two types of circumstances. First, and most commonly, the exception permits seizure of evidence discovered in the course of an intrusion for which there was prior justification, such as a search warrant, a hot pursuit, or a search incident to arrest. State v. Powell, 99 N.M. 381, 384, 658 P.2d 456, 459 (Ct.App.), cert. denied, 99 N.M. 358, 658 P.2d 433 (1983). Second, the plain view exception applies when no search, in the Fourth Amendment sense, has occurred at all. Id. It applies in those instances in which an observation is made by an officer without a prior physical intrusion into a constitutionally protected area. Id.

Merely looking at that which is open to view is not a search within the meaning of the Fourth Amendment). State v. Blackwell, 76 N.M. 445, 448, 415 P.2d 563, 566 (1966).

Under the plain view doctrine, items may be seized without a warrant if the police officer was lawfully positioned when the evidence was observed, and the incriminating nature of the evidence was immediately apparent, such that the officer had probable cause to believe that the article seized was evidence of a crime. State v. Rivera 148 N.M. 659, 241 P.3d

The plain view doctrine is triggered only if the police are validly in the area in which the thing seized or searched is located. This doctrine does not justify expanding the scope of a search to constitutionally protected areas which police are not otherwise authorized to enter. Authority to make the initial intrusion must derive from (1) a warrant or (2) one of the exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443 (1971).

 

Can APD Enter My Home Without a Warrant — PROTECTIVE SWEEPS

 

The sixth and final exception to the warrant requirement involves Protective Sweeps. A protective sweep is a “quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding. There are two requirements that must be met in order for a search to be considered a protective sweep. First, the protective sweep is only allowed incident to a lawful arrest. Second, the officers must also possess a reasonable belief that others may be hiding in the home that pose a danger. If the warrantless search does not meet the requirements of the protective sweep, or any other exception to the warrant requirement, then evidence found as a result of the search must be suppressed.

In Zamora, 2005 NMCA 39, 137 N.M. 301, the court held that the officer exceeded the scope of the protective sweep by searching and examining an area where it was clear a person posing a danger could not be hiding, the bathroom medicine cabinet. In that case, officers were given consent to enter a motel room, and that defendant was arrested for possession of a controlled substance. Following the arrest, an officer performed a protective sweep of the room, including the bathroom. Once in the bathroom, the officer looked outside the window, for evidence, and examined the medicine cabinet. The officer saw a small bag protruding from the cabinet, and because he knew plastic bags to contain drugs, he pulled it out and found narcotics. This was beyond the scope of a protective search, according to the court, because the officer was looking for evidence, not people. According to the court, it was obvious that a person could not fit in a medicine cabinet, and since he admitted he looked out the window and into the cabinet for evidence, he performed an illegal search.

That wraps up our review on illegal searches and seizures. As mentioned above – unless one of the limited and narrowly considered exceptions above applies – Police always need a valid warrant to enter and search your home. Warrantless searches are presumed unreasonable and the State bears the burden to prove that a strict and narrowly defined exception to the warrant requirement was present.