No Search Warrant.

No Search Warrant.

Unlawful Searches and the 4th Amendment

I appeared in the United States Court of Appeals yesterday to argue an issue addressing the continuing erosion of the Fourth Amendment to the United States Constitution. The Fourth Amendment protects our rights as individuals to be free from unlawful searches and seizures by law enforcement. A search of a person’s home without a search warrant is presumed unreasonable under the Fourth Amendment. Generally, evidence obtained as a result of a warrantless search cannot be used against an individual in court.

Exceptions to 4th Amendment

However, there are several exceptions to the search warrant requirement which can allow law enforcement to enter a home even without a search warrant in connection with criminal activity such as when law enforcement is pursuing a person or upon a belief that evidence might be destroyed – such as drugs. But this was not the situation when law enforcement entered my client’s home.

Facts of My Client’s Illegal Search

The facts of my client’s case are public record. A shed had caught fire in a rural area. Firemen and law enforcement reported to the scene. The shed that was on fire was located some distance behind the house; the house was in no danger of catching fire. Fireman learned upon arrival that a neighbor who reported the fire had moved a truck that was previously close to the burning shed. There was a dog in the cab of the truck and the neighbor found a rifle lying on the ground. None of the residents of the house could be located. The house itself was dark. There were no lights on inside the house. There was no sound coming from the house. The house was locked. There was no report of anyone injured or in need of assistance. Despite that there was no evidence of a crime, law enforcement thought that the situation was suspicious with a shed fire, a dog in the truck and a rifle on the ground. Law enforcement used keys found in the truck to enter my client’s house.

Law Enforcement Had No Search Warrant

Law enforcement entered my client’s home without obtaining a search warrant claiming that they thought there was a possibility that someone might be hurt or injured inside the house. Since when does the possibility that a person might be injured justify law enforcement entering a person’s locked house without a warrant? Since when can law enforcement enter our homes without a search warrant when they are not investigating criminal activity? This is exactly the issue I argued at the Court of Appeals.

Community Caretaker Exception

The community caretaker exception arguably allows law enforcement to enter a person’s home when there is no evidence of a crime; however, in order for the community caretaker exception to apply, law enforcement must reasonably believe an emergency exists. In this instance, there was no emergency. Law enforcement never articulated what was the emergency that justified entry into the house. Law enforcement was on the property for nearly an hour before attempting to enter the house which seems like an unreasonably long time to wait before entering a house if there is truly an emergency requiring immediate action. The evidence itself, or more importantly, the lack of evidence, suggests that there was no emergency. The officer’s belief that an emergency existed was unreasonable. What if my client simply left the house to go to the grocery store or to dinner?

Court of Appeals Decision on the Case

The Court of Appeals does not issue immediate rulings. I will be waiting to learn the outcome. But, the continuing expansion of the community caretaker exception to the warrant requirement should be a concern to all of us who value our liberty interests to be free from governmental intrusion into our lives and home.

Contact Scott Hamblin

Scott Hamblin is a lawyer and shareholder in the law firm of Brydon Swearengen & England P.C. Scott regularly practices in the area of criminal law and family law. For more information regarding your rights, please contact Scott at scotthamblinlaw.com or you mail email Scott at scotthamblin@brydonlaw.com.