Last updated on February 18th, 2019
Jacob Tingen: Welcome to Law Talk where every week attorneys from Tingen & Williams will answer your legal questions. And in the meantime while we are waiting for questions on Facebook Live or phone calls, we’ll be talking about different legal topics. For a couple of weeks, and I think this is the last one in our series, but for a couple of weeks we have been talking about your Constitutional rights with regard to the Fourth Amendment. You know, to not be subject unlawful searches and seizures. And we have talked about the different levels, reasonable suspicion vs. probable cause and we’ve talked about informal encounters with law enforcement, formal encounters with law enforcement, we have talked about traffic stops, and in the meantime we had a couple of breaks where we discussed stalker laws on Valentine’s Day and we talked about freedom of speech in last week’s episode. This week we are going to finish up that Fourth Amendment conversation with warrants and particularly warrants and home searches.
And I’m here again with Jonathan Jordan, our partner who does Criminal Law.
Jonathan Jordan: Good morning.
Jacob Tingen: There you go, so anyway we’re excited to talk about this topic. But if you do have a question feel free to pose it directly onto Facebook, just ask your question in the comments or give us a call, (804)477-1720 and we are available to talk about, not just the topic at hand, we practice in a wide range of practice areas so that if you have a question about Criminal Law, Family Law is another specialty of Jonathan’s, we do a lot of Immigration, some Federal Trademark Law, some litigation here and there. So if you would like just ask us a question, go ahead and ask it. But without further ado, let’s dig into this Constitutional conversation. What can you tell us Jonathan about warrants and home searches?
Jonathan Jordan: Let’s start back, I think it’s been awhile, so the Fourth Amendment is the one that says that government, or the right of the people to be secure in their papers or things, their homes, without unlawful search or seizure. Unlawful meaning the government can’t come in there and just randomly do whatever they want.
Jacob Tingen: And the key word there, as it’s written, is unreasonable, unreasonable search and seizure?
Jonathan Jordan: Exactly, this is a, remember where the Constitution, the historic, our times kind of determine the laws, what we are experiencing, we try to learn from them or prevent future abuses or problems. So at the time these people are coming off, in their mind, a very intrusive English government, where the soldiers were actually, they were forced to allow soldiers to live in their homes and their rooms, eat their food, they everything. The soldiers could at any time investigate anything in their home, their desk, their belongings, all over their privacy.
So this is, they are trying to make a balance we are, it’s a, we want laws to be enforced, we want criminals to be arrested, right? In our society.
Jacob Tingen: We want to save society, I don’t know that we want people or criminals to be arrested or jailed but we, I mean consequences have to be imposed to insure a safe society.
Jonathan Jordan: Yeah, we want a safe orderly society and the balance we’re trying to strike between a safe orderly society and people’s personal privacy and right not to be, people arbitrarily coming in and just start getting into their business. That’s what we have been discussing all this time.
Now as far as homes, we’ve covered cars, we’ve covered street stuff, we’ve covered reasonable suspicion, probable cause. Homes are the most secure that people have a right to be. There is a line outside the home that, absent some, you know there are some exceptions, but basically for an officer to come into a home and do anything inside the home they better either have a warrant or their going to have your permission. Nothing else is afforded that same kind of protection or security as anything else, as homes.
Jacob Tingen: So just to be clear on that and I just want to specify with you, probable cause is not sufficient to get through the door ever? Because I would say that’s going a little too far, I agree that homes are afforded a special sense of protection, but there are degrees of probable cause that would allow a police officer to come into your home. Right for exigent circumstances.
Jonathan Jordan: Well, what we would call those are the “warrant exceptions”. There are exceptions, but the general rule is the home is protected and it’s more than, let me just clarify, probable cause is the standard that’s used actually for an officer to get a warrant. That meaning the officer left the scene or called up a judge or magistrate somewhere and said look, this is what’s going on, and they have to give the details. They have to say because of all these things I personally observed or witnesses or people I trust in this evidence. I think we really need to get into this house to search for something or to seize a person.
Jacob Tingen: Now so, is one of the reasons for that, and I’m just spit balling here, so you tell me, but in the case of like a car or a person that could, they could move around, they could go somewhere, whereas a house isn’t moving. I mean is that one of the reasons why we expect people to get warrants first?
Jonathan Jordan: In part yes, because a car is mobile, it’s easily abandoned, it’s typically, cars have windows. It’s kind of based on people’s reasonable expectation of privacy. When you are in your car, you don’t have that expectation of privacy that you would in your home. You see that thing on the wall, “Home is Where the Heart Is”, “Home is Where the Family Is”, home is where the, you know, very personal and private things. That’s your home and the law recognizes that the home is different than a car, it’s even different than say an office.
Jacob Tingen: Yeah, and it’s good that homes are afforded a heightened level of protection. I don’t think anybody would disagree or argue with that.
Jonathan Jordan: Yeah, that’s where you sleep, that’s where your family is, that’s where you’re secure, that’s where you live. I think everyone agrees they really just don’t want people coming into their house when they are chilling in their underwear or whatever.
Jacob Tingen: Yeah, yeah so from the context of providing practical advice to you if you are listening to this, if a police officer wants to come into your home, you can always say no, or you can say get a warrant. If they want to come into the home, and they don’t want to tell you why, well that’s, in my view, suspicious behavior of the police officer. You absolutely have a right to say no. And they can’t also say things like, “Well, I’ll knock the door down”. They can’t count to three, or maybe they can count to three but it just doesn’t matter. How do we deal with the police when they are at the door and they are saying, “Let me in, let me in”. But they actually don’t have a right to come it.
Jonathan Jordan: My view is, it’s kind of like the three little pigs, and the big bad wolf, and you’re saying little pig let me, and you’re like no man.
Jacob Tingen: Right, you can just say no, you can just straight up say no.
Jonathan Jordan: If they are asking, or even demanding, you have a, if they are asking you have a right to say no at any time for any reason, right. If they are demanding and starting to threaten force, you have right to ask for the warrant. You say let me see the warrant. Then you have to make the decision of whether you open your door or not. You can say put it up to the peep hole, or you can say press it up against this window or slide it through the crack under the door. Basically you have the right to insure they can be in there without your permission, a warrant is an authorization from a court or a magistrate saying law enforcement can enter my most private area, my home, without my permission.
Jacob Tingen: Right, so the first thing to do then if somebody is demanding to come into your home. You should ask to see the warrant and they should show it to you. Now let’s talk about the nature of what’s on the warrant because I think that’s something that maybe a lot of people may not understand. It’s rare for a warrant to say, search anywhere in this house, anywhere you want, all locations until you find what you are looking for, right? That’s not as common, right?
Jonathan Jordan: Well, it depends on what the warrant is for. For example if the warrant is an arrest warrant, that’s a warrant to seize a human. With an arrest warrant, the only place they are allowed to search, well there are a couple of restrictions, number one, the only thing they are allowed to search for, actively search for is that person. That means they can only search places where a human, a person of that size or age, or ability could hide.
Jacob Tingen: Right.
Jonathan Jordan: That’s the first thing, they don’t get to open drawers, they don’t get to get into your computer or any of that kind of stuff. If they are looking for a human, they look in closets, they look in rooms, they look under beds, that’s what they are looking for, human size space.
Jacob Tingen: So I think a lot of people’s experience with these interactions unless they have had run-in’s with the law, that they see the inner action of these legal concepts at play is popularly in TV shows, right?
Jonathan Jordan: Yeah.
Jacob Tingen: So we regularly see people in TV shows, we’ve got a warrant, we’re gonna rough up this bad guy or whatever, perceived bad guy and they will come in and they’ll be looking for someone or something and they will just come in and dump out all the drawers and the chest of draws, pull all of the clothes out of the closet. I mean how much of that is realistic if they are looking for something that can fit inside a drawer?
Jonathan Jordan: It depends on the officers I think. I don’t know that I can answer that question directly. Let’s say they have a search warrant to find drugs and they are looking for any amount of drugs and the question is where can drugs be? Now the police can be as messy or as clean as they want in that process. I don’t think they are allowed to cause wanton damage. But if they are looking for baggies, or if they are looking for a gun, if you’re looking for a disc or a hard drive or something you can get into drawers. And frankly, if a drawer is full or messy maybe dumping it out is the best way to actually look for it.
Jacob Tingen: Right, let’s talk about the no warrant scenario where you give someone permission to come into the house, and I remember an interesting conversation in my Criminal Procedure class about this very topic. So let’s say you give a law enforcement officer permission coming into your house. That’s your consent. So you’re consenting to them coming into the front room and you can be careful and specify where in the house they can come in. You can say, you may come into the front room. You may not open the basement door, which is where I keep my dead bodies, right? I mean as long as you don’t say, that’s where I keep my dead bodies, but you can say, you may not open the basement. If he opens the basement, finds dead bodies that’s suppressible because he didn’t have your permission.
Jonathan Jordan: Yeah, he exceeded the scope of the consent.
Jacob Tingen: Yeah.
Jonathan Jordan: At that point the officer is acting in the same scope as anybody else as far as permission goes. If your neighbor comes over and says, “Hey, I want to chat with you about your dog”, and you say, here come into my living room, the neighbor doesn’t just get to go wander around your house and start searching closets or your basement.
Jacob Tingen: Yeah, because that would be weird.
Jonathan Jordan: That’s called trespassing. And the consent doesn’t include that. But if say the neighbor says, “Hey do you mind if I come look around, I’m looking for my toddler or whatever”, you can’t then later complain about your neighbor, I mean this doesn’t quite add up in the scope of our topic, but I’m just using it as an example. You can’t complain about your neighbor wandering around your house after you just gave the neighbor permission to wander around your house.
That’s the same for police. If they say, “Hey I’m looking for a suspect, we’ve had a string of robberies, we’re looking for a suspect, do you mind if I come look around?” You just gave him permission to look around.
Jacob Tingen: Let’s differentiate a little bit because I think this is important for people. When a police officer looks in the basement and finds the drugs or the dead bodies or whatever and he did it without your permission, that’s a violation of your Constitutional rights. When a private party does it, it could be tantamount to something like, you mentioned trespassing. But it’s not a violation of your Constitutional rights. If then that person goes and tells the police, they then have probable cause, they get a warrant, of course all of that is legit.
Jonathan Jordan: Yeah, you just created a way for police to get access. And that’s a fair point because as we started out with that it has to be a government actor. It’s government actors that are prevented from doing unlawful searches and seizures by the Fourth Amendment. It does not prevent private parties bosses, neighbors, friends, whatever. So if that person, that friend, that neighbor, whoever, not a government sees something that you don’t want them to see and they go and tell a law enforcement officer and law enforcement get a warrant, well guess what, that’s not protected.
Jacob Tingen: Right, not protected. Well let’s take this into the warrant exception arena. And that was kind of one of those, well using that example, got close, but we still used kind of the hypothetical of getting a warrant. But just again, popular examples from TV. We have all seen, kind of, they rush to the house because they suspect that the person is shredding documents or destroying evidence, can the police come in if they suspect or have reasonable suspicion or very strong probable cause to believe that in the time it would take them to get a warrant that you are going to destroy all the evidence, is that probable cause sufficient to get into the house or still no?
Jonathan Jordan: No, they actually can, there’s a number of exceptions to the warrant requirement. For example to answer your question, there is something called exigent circumstances, that means some sort of emergency or maybe not quite to the level of emergency, but there, we need to get in there quickly. Alright, one example that I’ve seen, let’s say the police are making an arrest I think I read this, the police are making an arrest outside and you know, a drug arrest, and the person being arrested yells to his buddy to flush it. Inside, inside the house. The guy’s inside the window and he’s like “Hey, flush it”. Then, the police have very good reason to believe that evidence from that arrest is now being destroyed within that house. They can go in there and they can stop the destruction of evidence. That doesn’t mean they get to go in and search everywhere in the house automatically. But they can go in there and secure people and get them away from the toilets.
Jacob Tingen: Well, and so on that issue, I thought it was interesting you said they can’t search anywhere in the house. But last time we talked about this topic, we mentioned the plain view doctrine. On their way up to the bathroom or wherever, where the drugs are being presumably or allegedly being destroyed, if they see all sorts of other violations on the way up, then would fall under the plain view doctrine and that I was legally authorized to do one task and in the process saw other violations. So that’s perfectly fine for them to then use that other evidence in whatever they are doing.
Jonathan Jordan: Exactly and actually, this is interesting because so far today, inadvertently we have covered three of the warrant exceptions. We’ve covered consent, if you give permission you don’t need a warrant. We’ve covered the exigent, or you know, high end need to react, exigent circumstances, and now we have covered the plain view. If the police are where they lawfully have a right to be and they see unlawful evidence …
Jacob Tingen: like if you are growing marijuana in the front windows of your house and that’s visible from the street, they can come it.
Jonathan Jordan: Actually, technically no.
Jacob Tingen: Okay, talk to me.
Jonathan Jordan: They can get a warrant.
Jacob Tingen: They can get a warrant to come in.
Jonathan Jordan: The question at that point is, at what point, what emergency, what things are they going to exercise to evade the warrant?
Jacob Tingen: Right, what emergency …
Jonathan Jordan: What’s the exigent circumstances, do the have consent? They are always free, and they have a very strong case. A probable cause case, they go to the judge, “Judge, I saw it with my own eyes from the curb, they have marijuana growing, a potted plant”, that’s going to be an easy warrant. But they can’t just go and kick in the door and seize it.
But what they can do, and another exception to the warrant is for example, let’s say they are chasing an armed and dangerous person. Or somebody they are interested in, they are trying to arrest, the dude throws some officers down and runs away. They see him run into that apartment or that house and he slams the door and locks it, and they come up and knock on the door and say let me in, and he’s like waw, waw, waw, waw, waw, waw, go get your warrant. No, they are going to kick in that door and grab him.
If they were in hot pursuit of him and they had the right to get him before, him running into the house doesn’t suddenly end the pursuit.
Jacob Tingen: So hot pursuit is another one of the good warrant exceptions.
Jonathan Jordan: Exactly, and another, we’ve talked about the stop and frisk and that’s a warrant exception, but it does not work at the home. If they want to stop and investigate someone and they are in their home, that wall protects them. They need to get a warrant or have one of the other reasons to get through. If you are outside the home they are free to stop and investigate. Inside the home they better go get a warrant, or get permission or something else.
Jacob Tingen: So that’s something that I think is important, we sometimes see clients, or at least I’ve some clients where law enforcement, and this is local police, this is immigration enforcement, a wide range of law enforcement agencies will say, no you have to let me in, and I guess they can say that, but saying it doesn’t make it true. But people will believe them and just open the door. Now if a police officer does bust open the door and there’s no warrant then your rights have been violated and you should talk about it. Of course, I think that this doesn’t happen all the time, but it does happen more often than it should.
Just be aware that if the police are held to a certain standard, and that’s important because again, the whole point of a police force and law enforcement is to keep society safe, but if we are not safe from those who are supposed to keep society safe, then that’s a problem and that’s why these laws exist and so of course, we all want to help out law enforcement and those kinds of things, but it’s important for you also to assert your rights if you are ever in the event someone wants to come knock on the door and talk to you and come it.
It’s very appropriate to ask for a warrant. There are ways to do it without being rude. Everybody has seen those YouTube video’s, where they be like holding their phone up to the door yelling get a warrant, get a warrant. You don’t have to do that, you can politely say, “Officer I believe you need a warrant to come into the house, so I think I’m going to say no, is there any question I can answer outside the door”? And then if they ask you a question you don’t feel like answering you can say, “Okay I don’t feel like answering that, I want to talk to a lawyer first, why don’t you guys move on for now, because I am not going to be very helpful”. So you can always be polite, sometimes that’s not the best approach. Sometimes you do have to have the phone recording and saying “Get a warrant, get out of my face”.
Jonathan Jordan: I think it depends on how belligerent the officer is. I’ve seen cases where the officer was acting like a maniac frankly, for whatever reasons, the officer has a high incense of self preservation exceeded and you’ve seen the videos where the officers, and I can’t remember where it was, maybe last year, they run into a pool party and that one officer pulls his gun like four times and the other officers make him put it away, and he keeps pulling it out again. Sometimes they’re on hyper alert and they do things they shouldn’t. And this is, I think we need to, we have to understand that your remedies in a situation like this, at least as far as evidence are suppression of evidence.
Jacob Tingen: Right, so if they do ever discover any crimes, now you could have other civil rights remedies available to you as well.
Jonathan Jordan: False arrest or something else.
Jacob Tingen: Yeah, I mean, there are also like some tort liability as well, if they trespass. So there are ways to defend your rights. If for example suppression is only useful to you if they find something to charge you with a crime over, then that evidence should be suppressed. But, if they don’t find anything and they’ve just been bullies to you, then you know there are other methods of getting compensation out of the local police force.
Jonathan Jordan: You do have civil remedies.
Jacob Tingen: You have civil remedies. If you’re just listening in, give us a call, we’re talking about Fourth Amendment rights today. In particular, your right to have privacy in your home. This is Law Talk with Tingen & Williams. You can call us for a free legal consult during this program (804)477-1720 or via comments on Facebook, so we’re here every Wednesday at 11:00 a.m. on Facebook Live.
I wanted to get to one more aspect of this topic, which is kind of, we’ve discussed the need to get a warrant to enter a home, the heighten scrutiny and standard necessary for law enforcement to come inside a home before a search or for any reason really. And we have talked about some of the exceptions, but I want to ask, what if you’ve got two people inside the home and one is saying no and the other is saying yes. What happens then?
Jonathan Jordan: That’s a good point. So the rule, let’s say you have, I mean absent the officers having any, it could go a number of different ways. Okay, lets say the officers are called there because a wife reported domestic violence. They respond, they come to the door to try to investigate and husband says you’re not allowed in my house and wife is there with clear signs of abuse on her body, at that point the officers don’t even need permission or a warrant. That’s similar to a stop and frisk, they are in the act of seeing, basically they are seeing a crime in progress or they are responding to a crime. They can go in there and they can, it’s similar it’s more similar to hot pursuit at that point. Independently they are confirming whether or not a crime has occurred.
Jacob Tingen: Right.
Jonathan Jordan: But to get to your question, let’s say this is, they are investigating whatever, something old and nothing that’s critical or immediate. They show up there and one spouse says sure, come on in, have a look around and the other spouse, says no, stay away. What they have done is, they have said there is a veto power. You need both spouses’ permission to enter the house if both are present. But if only one is present and the objecting spouse is not present, they can come in. So it has to do with who is present at the house.
Jacob Tingen: Right, so I know that you wanted to talk a little bit about the Fifth Amendment and my next question is sort of a segway from this topic to continue to talk about homes and how the Fifth Amendment interplays with searches, that sort of thing.
Jonathan Jordan: So the Fifth Amendment is the right to not self incriminate. The right not to say things that would get you into trouble with the law. The right to silence. We hear the Miranda Rights, you have a right to remain silent anything you say can and will be used against you in a court of law. And when you are dealing with some sort of officer interaction, within a police investigation, a stop, a warrant, it’s not just one Constitutional Right that’s in play. You can have several. For example the Fourth Amendment for search and seizure, the Fifth Amendment, the right not to say incriminating things about yourself. The Sixth Amendment, the right to counsel and having counsel present.
Jacob Tingen: So, if I can just kind of interject and throw something in here so this right against self incrimination also extends, or can extend to other parties, right? Can you tell us a little bit about spousal privilege?
Jonathan Jordan: There is a legal privilege, I don’t know that it is a Fifth Amendment privilege, it’s a court doctrine or a court privilege, that courts want to keep what goes on in a marriage private, discussions, events. So what they have is they are not going to, they expect spouses to stand up for each other. So spouses are discussing things, maybe not actively committing a crime, but when they are discussing things there is a privilege that you can request that the spouse, when you are charged with a crime, and being tried, you can request that your spouse not use the private information you shared in confidence in the marriage against you.
Jacob Tingen: And she can’t be compelled to testify either.
Jonathan Jordan: Yeah, she can’t be compelled to testify, but that’s one of the weaker privileges.
Jacob Tingen: Or he, women commit crimes too.
Jonathan Jordan: And it doesn’t really matter the gender, but the, it’s a way to protect, and the spouse can say no, I’m not gonna, you assert the privilege, and the spouse can honor your privilege, but the spouse, it’s a weaker privilege, the spouse doesn’t always have to honor it.
Jacob Tingen: Right so it doesn’t necessarily spawn from the Fifth Amendment, but I just think it’s an important thing to throw into this conversation as well.
Jonathan Jordan: And there’s other privileges of what can be used in court. There’s a you know, I can’t remember, something penitent priest privilege, attorney client privilege, doctor patient privilege, there’s a lot of privileges that try to encourage people to be honest with their …
Jacob Tingen: Certain doctors and lawyers.
Jonathan Jordan: The strongest of all of those privileges is the attorney client, the rest of them can be broken in the right circumstances.
Jacob Tingen: Right so I think it’s important for people to know this so when you do talk to a lawyer about a criminal or other issue, any issue really, the conversation is a privileged conversation and it’s not going to be revealed to others. We have a lot of clients who, now again, if you’re coming for a criminal consult we don’t need to know every detail but we do need you to be up front with us so that we can help you. That’s the same in any case. Of course, we’re going to ask for certain details and those kinds of things. But don’t mince words, don’t try to dodge admitting things that are difficult to confront. Because if that is what your case is about then your lawyer needs to know so they can help you in the best way possible.
You don’t want your lawyer to be surprised at trial or in court or in some kind of mediation. You really don’t want your lawyer to be surprised because they need to be in the know so that they can help you. I mean how often, do you think that people understand that privileged relationship and the conversations with the lawyer, or what do you think.
Jonathan Jordan: I mean we tell them all the time but I’m not sure, even if they understand it, sometimes admitting certain things is extremely embarrassing and they just don’t want to do it.
Jacob Tingen: Right, right.
Jonathan Jordan: I mean even in private. If it is something embarrassing they don’t want to share it, the reality is it is probably going to come out in trial and you’re better off having an attorney who is ready to deal with it than …
Jacob Tingen: So one quick thing about the Fifth Amendment, just because you have told someone, like your attorney, it doesn’t mean you have waived Fifth Amendment right against self incrimination, right? And that is a right you can assert at trial, in conversations with law enforcement, I mean that is essentially what you do when you say to law enforcement, “I need to speak to a lawyer, this conversation is over until I speak to a lawyer”. That is one of the ways you are exercising, not only, as you said, the right to counsel, but also your right to not self incriminate.
Jonathan Jordan: Yeah, I think that one actually falls under the Sixth Amendment, the right to counsel. So you get to say silent. If you evoke the right to counsel it actually, I’m trying to think of the time, it’s at least a two week right against self incrimination, you’re not even allowed to talk to me. It triggers a long delay where the police can’t come back and start grilling you on the same topic but it’s a little tricky when you can and can’t evoke that. But you are always free to say, “I do not want to talk to you”. I would add here that the Supreme Court cases have made this a little funny.
This is interesting because let’s say I’m in interrogation and the police are grilling me in some dark room with a bare light bulb for 17 hours without water, I’m just kidding, I’m just setting the scene there.
Jacob Tingen: Is this your past, this is a moment …
Jonathan Jordan: These are some cases I read, but at that time, if I say silent for the entire 17 hours I have not evoked my right to silence. You do not evoke your right to silence by being silent. You have to do it verbally. You have to say “I am evoking my right to silence”, “I choose to remain silent, I will not be answering your questions”.
Jacob Tingen: You could say “I am evoking my Fifth Amendment right to silence”.
Jonathan Jordan: “I’m taking my Fifth Amendment”, then they have to stop.
Jacob Tingen: Alright, well thank you for cleaning that up the last couple of issues we had left over on our Fourth Amendment conversation, we got into some other Constitutional Rights and issues.
If you have any questions, give us a call, Law Talk with Tingen & Williams we’re here every Wednesday at 11:00 a.m. you can give us a call at (804)477-1720. You can also make a comment directly on to Facebook and we will be happy to respond.
And then please also note that this Facebook Live program has now been turned into a podcast. You can find the audio at iTunes, Stitch or Google Play and also available at our website at tingenwilliams.com/law-talk and there you can read the transcripts to all of these conversations, you can listen to the audio, we hope to hear from you more in the future. And we’ll be back next week. Thank you.