Could the police enter your home without a search warrant even if no criminal activity is suspected?
The answer is yes and most of us would be happy for it…unless you actually are involved in criminal activity.
Back in 1999, two San Diego officers were called to a complex of two duplexes in Pacific Beach separated by a walkway. A neighbor reported loud music had been coming from one of the units and she and other people at the complex were upset and worried.
On arriving, police could hear the music from outside the complex. The neighbor informed them she knew the two men who lived in the apartment and described them as quiet and in their late 20s. To her knowledge the loud music had been coming from their unit for about 24 hours. During this period, she had not seen the men but thought one was out of town. She said it was very unusual for loud music to be coming from the unit.
After the police noticed what appeared to be a couple of days of mail and newspapers stacked at the doorstep, one officer pounded very hard on the door. Receiving no response, the officers tried to look inside the residence but all the blinds were closed. They then tried the doors and windows and found they were locked. Police were able to look inside a small bathroom window but it was pitch black inside except for a light coming from a back bedroom. There was a light on in a stereo unit.
The police tried to find the telephone number to the unit by calling their department's communication division. No telephone number listed.
Another neighbor told police the loud music had been playing since the previous evening and it was abnormal. She had not seen the men in the last 24 hours and thought there might be someone injured inside. Police then tried to contact other neighbors without success. They tried to determine if the residents' cars were in the garage, but it was locked.
One officer, a 15-year police veteran, said he had a bad feeling something might be wrong inside the unit, in part because he had never responded to a loud music call where the occupant was not at home. He had recently responded to a home where the house seemed fine from the outside but the occupant had committed suicide. He felt it was his responsibility to enter the residence to determine if everything was all right inside. Over his radio, he spoke with his sergeant who recommended kicking the door open, which he did.
After forcing entry, the officers went in the darkened residence with their guns drawn. They called out their presence but received no answer. They did not see anything extraordinary but the music was so loud inside that they could not hear anything else. They then searched the rooms. Inside the partially opened closet in one of the bedrooms, marijuana plants were found growing. Growing equipment was also found. With guns still drawn, the officers continued searching for possibly injured persons. In a second bedroom closet, they found additional marijuana plants and equipment for growing marijuana.
Based on the marijuana plants and equipment found inside the residence, the officers obtained and executed a search warrant.
The legal fine points of the case aren’t important here, except to say the appellate court said the initial entry and search was legal. As part of their “protect and serve” role, police can sometimes make a forcible, warrantless entry into private homes even though no criminal activity is suspected.
If some event in or about your home triggers either the community caretaker exception or the rescue doctrine, and the police arrest you after they stumble across something illegal, maybe not a kilo of cocaine or a dead body, but something less onerous like a switchblade knife or brass knuckles you bought in Tijuana, or an inert hand grenade you have a souvenir, or anything else they know or think you shouldn’t possess, what should you do?
First, don’t say anything except biographical information (name, date or birth, etc.) for the booking sheet. Two, tell the police, and keep repeating it, that you want a lawyer before you say anything else. And three, call me any time of the day or night, criminal defense attorney Rebecca Ocain at 619-431-1076.
Rebecca Ocain has been a criminal law trial attorney for over fourteen years.