FREE e-Newsletter
Important News - Hot Topics
Get them Now!

Departments : Point of Law

Residential Entry After Outdoors Arrest

Can you go inside? Sometimes yes, sometimes no.

February 01, 2008  |  by Devallis Rutledge - Also by this author

There are four ways to make a lawful entry into a private home: (1) under a valid search or arrest warrant; (2) with the voluntary consent of someone who reasonably appears to have authority to admit you; (3) as authorized by the terms of a parole or probation condition; or (4) where necessary to neutralize an exigency.

An entry that is not justifiable under one or more of these categories will violate the Fourth Amendment rights of the residents and their overnight guests. (Minnesota v. Olson) The result could be suppression of any evidence seized within, as well as potential civil liability for entering officers and their agencies. (Segura v. U.S.)

Notice that "entry incident to outdoors arrest" is not on the list of lawful ways to get inside a residence. In three separate cases, the U.S. Supreme Court has held such entries to be unconstitutional.

James v. Louisiana

James was a passenger in a car stopped by New Orleans officers. He was lawfully arrested based on probable cause, and the officers then drove him to his home, more than two blocks away. Without warrant, consent, search terms, or exigency, the officers entered and searched James's home, where they found narcotics equipment and morphine. James was tried and convicted, but on appeal, the U.S. Supreme Court held that the evidence seized from his home was the result of an illegal entry and could not be used against him:

"In the circumstances of this case, the search of defendant's home cannot be regarded as incident to his arrest on a street corner more than two blocks away. A search can be 'incident to an arrest' only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest."

Shipley v. California

Bruce Warnie Shipley committed an armed robbery, taking jewelry and a jewelry case. Having identified Shipley as a suspect, police staked out his house and arrested him when he drove up and got out of his car in front of his home. They then took him inside and conducted a search, finding the stolen jewelry case beneath his couch. Shipley was convicted and filed an appeal to the Supreme Court. The court agreed that the entry and search of the house could not be justified incident to an outdoors arrest, and the court reversed Shipley's conviction:

"The Constitution has never been construed by this Court to allow the police, in the absence of an emergency, to arrest a person outside his home and then take him inside for the purpose of conducting a warrantless search. Since the thorough search of defendant's home extended without reasonable justification beyond the place in which he was arrested, it cannot be upheld under the Fourth Amendment as incident to his arrest."

Vale v. Louisiana

Narcotics officers conducting surveillance on Donald Vale's home saw him walk outside and appear to sell drugs to people who drove up and honked outside. They stopped Vale at the front steps of his house as he tried to go back inside. After arresting him, the officers entered and searched the house. Heroin seized from the bedroom was admitted against Vale at his trial, and he was convicted of possession. After his conviction was affirmed by the state courts, Vale appealed to the U.S. Supreme Court, which reversed:

"If a search of a house is to be upheld as incident to arrest, that arrest must take place inside the house. Our past decisions make clear that only in a few specifically established and well-delineated situations may a warrantless search of a dwelling withstand constitutional scrutiny. We decline to hold that an arrest on the street can provide its own exigent circumstance so as to justify a warrantless search of the arrestee's house."

Implied Consent

On the other hand, police have a right to maintain control over a suspect once he has been arrested. Therefore, if the suspect is arrested outside his home and requests an opportunity to go back inside temporarily (such as to obtain bail money or ID, or to get a jacket or tell his family of his predicament), he is giving police implied consent to accompany him inside. If officers then see contraband or evidence in plain view, they have a right to seize it. (Horton v. California) The Supreme Court has twice held that warrantless entry to control an arrestee is permissible.

Washington v. Chrisman

WSU campus police arrested Carl Overdahl outside his student dormitory for an alcohol offense. Overdahl told the officer that his ID was in his room, and asked to be allowed to go inside and get it. The officer said that he would have to accompany Overdahl, and he did so. Inside, the officer saw narcotics in plain view and eventually arrested both Overdahl and his roommate, Neil Chrisman, on drug charges. The Washington Supreme Court reversed Chrisman's conviction, ruling that entry into his room was unlawful. The State appealed, and the U.S. Supreme Court reversed:

"The officer had placed Overdahl under lawful arrest, and therefore was authorized to accompany him to his room for the purpose of obtaining identification. The officer had a right to remain literally at Overdahl's elbow at all times; nothing in the Fourth Amendment is to the contrary.

"Every arrest must be presumed to present a risk of danger to the arresting officer. There is no way for an officer to predict reliably how a particular subject will react to arrest or the degree of the potential danger. Moreover, the possibility that an arrested person will attempt to escape if not properly supervised is obvious. We hold, therefore, that it is not unreasonable under the Fourth Amendment for a police officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest."

Illinois v. McArthur

During a "keep the peace" call, Tera McArthur told police as she was leaving that her husband Charles had dope inside their trailer house. One officer was sent to get a search warrant, while another waited outside. Charles was detained on the front porch pending arrival of the warrant. When he asked to go inside to get cigarettes and to make phone calls, the officer accompanied him. After the search warrant arrived, a search revealed marijuana and paraphernalia. Charles was arrested and successfully moved to suppress the contraband as the fruit of a Fourth Amendment violation. Again, the U.S. Supreme Court reversed:

"McArthur reentered simply for his own convenience, to make phone calls and to obtain cigarettes. The police officers had probable cause to believe that the home contained contraband, which was evidence of a crime. They reasonably believed that the home's resident, if left free of any restraint, would destroy that evidence. In our view, the restraint (permitting reentry conditioned on observation) met the Fourth Amendment demands."

A home may not normally be entered merely because a resident has been arrested outside. However, if the person asks to be allowed back inside temporarily, officers have a right to accompany him, in order to prevent escape, possible arming, or the destruction of evidence.

Tags: Search Warrants, Legal Perspectives, U.S. Supreme Court Cases, Parolees, Evidence, Search and Seizure, Point of Law


Be the first to comment on this story





POLICE Magazine does not tolerate comments that include profanity, personal attacks or antisocial behavior (such as "spamming" or "trolling"). This and other inappropriate content or material will be removed. We reserve the right to block any user who violates this, including removing all content posted by that user.

Other Recent Stories

Concerns of Police Survivors Healing Hearts
Concerns of Police Survivors (C.O.P.S.) welcomes with open arms those who have suffered...
Stopping Fatal Trends
According to the National Law Enforcement Officers Memorial Fund, in the first half of...
Responding vs. Reacting
Reacting is guided primarily by emotion and responding is influenced by logic. In this...

Get Your FREE Trial Issue and Win a Gift! Subscribe Today!
Yes! Please rush me my FREE TRIAL ISSUE of POLICE magazine and FREE Officer Survival Guide with tips and tactics to help me safely get out of 10 different situations.

Just fill in the form to the right and click the button to receive your FREE Trial Issue.

If POLICE does not satisfy you, just write "cancel" on the invoice and send it back. You'll pay nothing, and the FREE issue is yours to keep. If you enjoy POLICE, pay only $25 for a full one-year subscription (12 issues in all). Enjoy a savings of nearly 60% off the cover price!

Offer valid in US only. Outside U.S., click here.
It's easy! Just fill in the form below and click the red button to receive your FREE Trial Issue.
First Name:
Last Name:
Rank:
Agency:
Address:
City:
State:
  
Zip Code:
 
Country:
We respect your privacy. Please let us know if the address provided is your home, as your RANK / AGENCY will not be included on the mailing label.
E-mail Address:

Police Magazine