Consent to Enter Home May be Limited and Revoked
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
The English common law dictum, “an Englishman’s home is his castle,”—a term coined by 17th century English jurist Sir Edward Cooke—was brought to America by the early English colonists and would ultimately inspire the Fourth Amendment to this nation’s Constitution. That cherished amendment reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Through the evolution of this nation’s constitutional law, the courts have carved out the following exceptions to the Fourth Amendment’s warrant requirement:
- Consent Searches: A person in control of the premises may freely and voluntarily agree to a search. Consent cannot be obtained through police trickery or coercion, and the individual giving the consent may revoke it at any time.
- The Plain Review Doctrine: If a police officer has a right to be where evidence or contraband is first spotted, he or she may seize that evidence/contraband because it is “in plain view.”
- Incident to a Lawful Arrest: If a police officer has “probable cause” to make an arrest, he or she may conduct a limited warrantless search for weapons or to prevent the destruction of evidence. The authority to conduct such a search ends once the police secure safe custody of the suspect.
- The Emergency Exception: A police officer may conduct a warrantless search when the time to secure a warrant would endanger public safety or create the real risk of important evidence being lost or destroyed. The following are examples of exceptions generally recognized by the courts: a) an officer finds illegal drugs when checking an injured motorist for possible injuries following a collision; b) a drug suspect arrested on the street shouts a warning to cohorts in the house to get rid of the drugs; c) an officer hears shouts or screams in a residence after which he enters the residence and arrests a suspect for spousal abuse; and d) an officer chasing a fleeing suspect into a residence in order to make an arrest.
The Texas Court of Criminal Appeals in a split decision recently had an opportunity to address the circumstances under which the police may enter and search a residence when there is suspicion of domestic violence. The incident in question occurred in the very early morning hours of May 8, 2008. Two Kerr County deputies responded to a report by a third party that there was yelling, screaming, and sounds of objects being thrown around in the apartment of Christina Jean Miller. The officers arrived at the apartment where vehicle video cameras and audio body recorders captured what transpired at the Miller apartment. The appeals court listed the following “chronology of events” that set the stage for the Fourth Amendment issues before the court on Miller’s direct appeal from a guilty plea conviction of possession of a controlled substance:
- Kerr County Deputy Jamie Yarbrough and DPS Trooper Allen Meyer, who was riding patrol with Yarbrough, knocked on Miller’s apartment door and did not get an immediate response.
- “Crashing noises, loud music, and yelling by a single female” were audible on the officers’ body recorders.
- The two officers announced they were “sheriff’s deputies.”
- Yarbrough asked Meyer if he thought that Miller thinks it’s her intimate partner.
- An “extremely distraught and highly intoxicated” Miller opened the door; she was unsteady on her feet and her speech was slurred; but the officers did not see “any injuries” on the woman.
- Miller asked the officers what they wanted to which they responded there had been a third party report of a disturbance. Miller told the deputies: “Y’all can come if you want.”
- Deputy Yarbrough asked Miller if her boyfriend at in the residence. She said he was not.
- Miller denied that there had been any domestic violence; that she had become “upset and was throwing things because she had discovered that her boyfriend was seeing other women.” She added that the boyfriend was not there and she did not know where he was.
- The two officers asked if there was anyone else in the residence to which she replied there were just her sleeping babies and asked the officers not to “mess with them.”
- Deputy Yarbrough offered that the babies “were probably already awake.”
- Miller once again informed Deputy Yarbrough that there had been no physical violence at her residence.
- Miller identified herself but refused to identify her boyfriend.
- Deputy Yarbrough asked Miller for her driver’s license and her date of birth. She gave the officer her date of birth.
- At this juncture Miller told the officers that she was minding her own business in her home, even though she upset. She asked the officers to leave, but they did not.
- The officers stated they had a report of “people throwing things at each other and hitting on each other.” Miller responded that “none of that happened.”
- Deputy Yarbrough insisted that Miller provide the name of her boyfriend, saying: “I need to confirm that with him. That’s why I need to talk to him.”
- At this point the officers had been in Miller’s apartment for four minutes. For a second time, Miller asked the officers to leave her residence. One of the officers responded: “Christie, we’ll leave in just a minute, but we have some obligations we have to go through.” The officers did not leave.
- Deputy Yarbrough called for a warrant check at which time Miller told him, “I didn’t authorize you to come in my house.” Yarbrough responded that she had asked them to “come in and check.”
- For a third time, Miller asked the officers to leave her residence, saying: “well then, please leave. Please leave.”
- Another officer, who had apparently entered the residence, replied: “We have certain things we need to go through before we can leave.” The officers did not leave, and continued to question Miller.
- By this time, Miller had lost her patience. For a fourth time, Miller asked the officers to leave, this time saying: “Get out of my f …ing house!” Lacking probable cause to arrest Miller, the officers should have left. They did not. One officer continued to press Miller for the name of her boyfriend.
- After the fourth instruction to leave, Meyer picked up a small, burned marijuana cigarette and a “piece of aluminum foil with burned residue in the center.” Miller snatched the marijuana cigarette out of Meyer’s hand after which Deputy Yarbrough and Meyer wrestled it out of her hand, arresting her. She admitted that she had smoked the cigarette earlier in the week.
- The officers continued to search the area where they aluminum foil was found during which they found “in plain sight, two baggies, each containing traces if a white powdery substance.”
In 2006 the U.S. Supreme Court in Georgia v. Randolph gave the police the authority “to enter a dwelling to protect a resident from domestic violence; so long as they have good reason to believe such a threat exists, it would be silly to suggest that the police would commit a tort by entering, say to give a complaining tenant an opportunity to collect belongs and get out safely, or to determine whether violence (or threat of violence) has just occurred or is about to (or soon will) occur, however much a spouse or other co-tenant objected. (And since the police would then be lawfully in the premises, there is no question that they could seize any evidence in plain view or take further action supported by any subsequent probable cause.)”
Here the police received an anonymous third-party “disturbance call” of domestic violence. They proceeded to the Miller residence under that impression. They found Miller who, although upset and intoxicated, invited the police into her residence and informed them there had been no domestic violence. She did not display any physical evidence of bodily injuries. Once she had explained the reasons for her emotional upset, she asked the police to leave her residence, not once but four times. Not only did the police ignore those requests, they began a visual search of the residence for evidence of criminal wrongdoing without any probable cause to do so.
As the Court of Appeals observed: “… The record reflects that, when he first arrived at [Miller’s] door, Deputy Yarbrough was approaching the situation as a domestic assault, already seemingly having decided, before any contact with [Miller], that the third-party report of yelling, screaming, and the sounds of objects being thrown in [Miller’s] apartment were sounds of domestic assault, a not unreasonable conclusion. But somewhat contradictorily, he also appears to have assumed that the perpetrator had left and that [Miller] might think the perpetrator had returned.”
The appeals court correctly pointed out these initial assumptions by Deputy Yarbrough “colored his behavior” throughout his interactions with Miller. This was evidenced by the fact that the police after being told by Miller that her boyfriend was not in the residence did not “attempt to search the apartment for him or anyone else.” That failure is significant because the police would have had probable cause to search based on possible “endangerment” to Miller’s two “babies” (a 2 and 11 year old) because of her emotional state and obvious intoxication. Instead “Deputy Yarbrough continued to treat the situation as a domestic assault, pressing [Miller] for her boyfriend’s name and whereabouts, even after several denials of physical contact or knowledge of the boyfriend’s location and with no evidence of physical harm.”
There is no question but that the officers had the authority to “complete their investigation” into a report of potential domestic violence; however, the noises the officers heard prior to making any contact with Miller, her obvious intoxication, and the “disarray” in her apartment did not, standing alone, justify their continued presence in Miller’s apartment absent any evidence of a physical assault by the non-present boyfriend, especially after the officers were asked four times by Miller to leave her residence. This conclusion is supported by the appeals court’s finding that the “emergency doctrine” did not apply with respect to the children because the officers “made no attempt to search the apartment for [Miller’s] boyfriend or children.” Absent an emergency “to protect life or avoid serious injury” to the children or the risk for the destruction of evidence, the police should have exited the residence when requested to do so by Miller because she had the absolute right to revoke at any time her initial “consent” for the officers to enter her residence.
It is not often that the Court of Criminal Appeals will find a search unreasonable. This is one of those cases where the police conduct was so egregious that no other conclusion could be reached. It stands as a reminder to the police that absent a clear evidence of wrongdoing they must “get out” of a person residence when asked or told to do so. Miller’s apartment was indeed her “castle” in this situation. Thank goodness!
By: Houston Criminal Attorney John Floyd and paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization