Many of us do not know the names of our next door neighbors. Because of this, tasks that neighbors, friends, or relatives may have performed in the past now fall to the police."
(People v. Ray, 21 Cal.4th (1999))
It's 0200 hours on a hot August night. You are at an apartment fourplex on a loud noise complaint. As you walk up the stairs in an attempt to determine the location of the noise, you observe an open door. It's completely quiet.
As you illuminate the apartment's interior with your flashlight, you note that nothing appears amiss and no one is stirring inside. No one responds to repeated knocks and announcements. The open door and circumstances seem suspicious and you believe that the occupant or occupants might be in need of assistance. Can you enter?
The scenario above was the totality of circumstances that two Southern California police officers recently used to base their decision to enter a private residence. The incident was part of a case where I recently offered expert opinion during a civil trial alleging violations of civil rights under the Fourth Amendment.
Few of the safeguards granted to individuals in the United States under the Bill of Rights are more vociferously defended than the Fourth Amendment guaranteeing protection against unreasonable searches and seizures. This is especially the case where the entry of private residences is concerned.
Under the Fourth Amendment, warrantless searches of private property are presumptively illegal. However, case law has created some exceptions to the warrant requirement. These exceptions are: (1) consent searches; (2) searches incident to custodial arrest; (3) probation/parole searches; (4) searches pursuant to "exigent circumstances;" and (5) community caretaking.
"Community caretaking" refers to the reasonable belief by a law enforcement officer or officers that an occupant within a private premises is at imminent risk of harm; or there is some other serious emergency. If an officer reasonably believes a person inside an area that would be considered private property may be injured, ill, or a victim of a crime, and is in immediate need of assistance; the officer or officers may enter the property to render aid without a warrant.
As numerous U.S. Supreme Court and appellate rulings consistently reflect, peace officers must demonstrate that probable cause exists to enter and search. Even though the Courts will consider the "totality of circumstances" to meet the Fourth Amendment requirement, officers must have specific facts that can be articulated in court in a sworn statement (affidavit). Thus, probable cause requires something less than an absolute, or even a near certainty; but something more than a mere hunch, suspicion, or educated guess.
Probable cause to enter a premises to satisfy a reasonable belief that an occupant may be in need of immediate police and/or medical intervention may be based upon the "collective knowledge" of the officer or officers involved in an investigation; and all of the references that might be reasonably drawn from this information, with the officer or officers' training and experience.
The Courts have ruled that because police officers possess specialized education, training, and experience, they are provided some level of investigatory latitude beyond that of a common citizen. The Courts recognize that it is possible for an activity that otherwise appears innocent to the general public to amount to probable cause to an officer.
Making Legal Entry
However, it is important to remember that while an officer's training and experience may form the calculus for determining probable cause to enter, the ultimate facts must be seen and weighed as understood by a "reasonable officer." Such determinations fall within the context of the "objective reasonableness" doctrine.
Examples of circumstances of a person being in imminent risk or harm and/or requiring immediate police and/or medical assistance include, but are not limited to: a person calling out for help, neighbors reporting hearing cries for help; groaning, crying, sounds of a person in distress; a 911 dispatcher reporting similar information; officers observing blood or other evidence of possible injury or a person in medical distress; or similar specific circumstances, statements, or facts.
Examples of circumstances that might allow an officer or officers to reasonably believe that a crime is in-progress, or has recently occurred include, but are not limited to: a 911 dispatcher reporting that an occupant or neighbors report a crime in-progress at the location; objective signs of forced entry such as a forced door/window; a room or rooms and furniture in disarray; blood evidence, bullet holes; coupled with or separate from a person calling out in distress; or no one responding to an officer or officers' knock and announcements.
Examples of other emergencies that would allow an officer or officers to make warrantless entry into private property include, but are not limited to: fire, gas leak, explosion, flood, earthquake, tornados, chemical spills, or other types of natural disasters that would pose a danger to persons and/or property.
The Courts have provided police officers with three basic guidelines that provide a calculus for determining whether it is objectively reasonable for them to enter private property:
- The reliability of information–Was the need for the warrantless entry and/or search based upon reliable information;
- Likelihood of occurrence–Did it appear that the threat was real; or was it merely "within the realm of possibilities;" and
- No basis for a warrant–Would the circumstances have satisfied the issuance of a warrant under normal circumstances.
Officers are reminded that an "emergency aid" entry is permitted only if two of the above requirements are met.
The balancing test for officers to remember when forming any determination to enter private property absent of consent or a warrant is that their entry and/or search within the "community caretaking" exception will be allowed only if a reasonable officer experiencing similar circumstances "would have perceived a need to act in the proper discharge of his/her community caretaking functions." (People v. Ray, 21 Cal.4th 464, 477 (1999))
Special thanks to former U.S. Attorney and police practices legal expert Mark Jarmie, Esq. for his peer review of this article.
Ron Martinelli, Ph.D., CMI-V, BCFT, CFA, is a nationally renowned forensic criminologist, federal/state qualified police practices expert, and a certified medical Investigator who directs the nation's only multidisciplinary forensic death investigations and independent review team. www.DrRonMartinelli.com.