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The Constitution and the cop: Case law and the American home

While the home is still sacred constitutional ground — a threshold not to be trespassed upon by the government without a warrant supported by probable cause — exceptions do exist

If there is one inviolable principle in Constitutional criminal procedure, it is that the home remains off-limits to government intrusion short of the existence of probable cause and a warrant issued by a neutral and detached magistrate.

That principle has derived from early English common law decisions in Semayne’s Case (1604) and Entick v. Carrington (1705), the latter subsequently cited by the U.S. Supreme Court in Boyd v. United States (1886) as a landmark case for Fourth Amendment jurisprudence.

The sanctity of the home has probably been no more eloquently expressed than by William Pitt’s statement to Parliament in 1763: “The poorest man may in his cottage bid defiance to all the force of the crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter, the rain may enter — but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement.”

Court Cases and Exceptions to the Case
Yet, we are no longer bound by the conventions of 18th and 19th century life and our Constitution has adapted and evolved to present day realities. While the home is still sacred constitutional ground — a threshold not to be trespassed upon by the government without a warrant supported by probable cause — exceptions do exist.

These exceptions come into play when the police do not have a search warrant authorizing a general search of the home or an arrest warrant which provides police authority to enter a suspect’s home to apprehend the named suspect (Payton v. New York, 1980). If the suspect is being sought in a third-party’s home a search warrant for the home of the third-party is required (Steagald v. United States, 1981). As with any exception to general Fourth Amendment requirements, the burden is upon the prosecutor to prove the grounds relied upon for unwarranted police entry. For police seeking to gain entry, it remains their duty to document and articulate the reason and necessity for proceeding without a warrant.

The U.S. Supreme Court’s most recent recognition of an exception to the Fourth Amendment home entry warrant requirement came in its 2011 opinion in Kentucky v. King. In the King case a warrantless entry of an apartment based on the possible destruction of drug evidence was permitted even though police entered an apartment they erroneously believed was where the suspect entered. The Court said that as long as the police did not create the exigency giving rise to the warrantless entry there was no Fourth Amendment violation. Although the Court has said that warrantless police entry into the home is presumptively unconstitutional (Brigham City v. Stuart, 2006) the law enforcement need resulting from the exigency can validate what would be an otherwise unlawful entry (Michigan v. Fisher, 2009).

Exigent circumstances exist when evidence faces imminent destruction, people are in danger or a suspect may escape. These circumstances have allowed courts to approve warrantless police entry when in fresh or “hot” pursuit of a criminal suspect, where there is a threat to public safety or the safety of the officer, or when there is an imminent risk of destruction of evidence.

Other situations allowing entry would be if there is danger of destruction to property necessitating government entry to preserve the property or a subsequent administrative investigation into the cause of a home’s destruction (Michigan v. Clifford, 1984). However, a home search authorized by an exigency lasts only as long as the exigency exists.

In the Michigan v. Fisher case, the Court found the police response to a disturbance call and their unwarranted entry to check on the occupant’s well-being and safety did not violate the Fourth Amendment. The Court said the exigencies of the situation, in this instance the presence of fresh blood on a vehicle in the driveway and on the door of the house as well as a view of the injured occupant through a window, made the entry reasonable. Even though the occupant told the police not to enter and to get a warrant, the circumstances justified the entry.

As the Court noted in Fisher, “the ultimate touchstone of the Fourth Amendment…is reasonableness.”

Another means of law enforcement entry into a home is by way of consent. While not an exception to the Fourth Amendment the Court has recognized voluntary consent by a co-occupant when another occupant is not present (United States v. Matlock, 1974) or by someone with apparent authority (Illinois v. Rodriguez, 1990) but has denied consent when two co-occupants are present and one gives consent to search while the other refuses (Georgia v. Randolph, 2006.)

Consent is either by express invitation or implied permission, such as when someone calls for the police to respond to an incident. If consent to search is given, the burden is on the prosecution to show that the police officer obtaining consent did not coerce the homeowner into authorizing entry. However, once a police officer is lawfully within the home — for instance to conduct interviews regarding a neighboring burglary — and sees contraband out in the open, the plain view rule applies (Horton v. California, 1990.) This rule only authorizes the seizure of the incriminating evidence, not a further search of the residence.

A search warrant is needed for a continued search based on a plain view seizure — unless a separate exigency is present. What if an officer has probable cause to search, asks for consent, but is denied? The Supreme Court in Illinois v. MacArthur (2001) permitted the police to limit a homeowner’s access to and control over his home pending the arrival of a search warrant. The Court said such a temporary seizure was constitutional due to concern over the potential destruction of evidence.

Know Your Policies and Procedures
The above cases represent an overview of U.S. Supreme Court decisions regarding police entry into the home. By no means are these cases a complete statement of the Court’s position — nor are they the last word on police entry into the home.

A state may provide more expansive Constitutional protection under its own Constitution and the highest court in those states may have taken a more restrictive view than the U.S. Supreme Court.

Officers should be familiar with any added restrictions they may encounter in their states.

Terrence P. Dwyer retired from the New York State Police after a 22-year career as a Trooper and Investigator. He is a tenured professor of legal studies at Western Connecticut State University and an attorney consulting on law enforcement liability, disciplinary cases, critical incidents, and employment matters. He is the author of “Homeland Security Law: Issues and Analysis,” Cognella Publishing (2024).