TX: Officers’ refusal to leave a disturbance call when it was obvious the homeowner was alone was unreasonable

Officers responded to a 12:30 am call of a disturbance at defendant’s apartment reported by neighbors hearing crashing sounds. When they arrived, they could see that she had trashed the place because she was upset that her boyfriend was cheating on her. She said she was alone, and officers had no reason to disbelieve her. She told them to leave four times. They waiting until “wants or warrants” came back clean in case there was a no contact order, which was found not to make sense. Their refusal to leave was unreasonable. Miller v. State, 393 S.W.3d 255 (Tex. Crim. App. 2012), dissents here and here:

The trial court’s fact findings and conclusions of law state that the officers’ presence in the apartment at the time they found the illegal substance was permissible as part of their investigation for domestic violence. But the record does not support this. Although it is undisputed that the officers’ initial entry into the apartment was part of their investigation for domestic violence, it is also undisputed that they found no evidence of domestic abuse, appellant told them to leave four times, and the only reason that they did not leave was because they were waiting for a return on the warrant check on appellant. The officers’ explanation for refusing to leave before they received the warrant check was, essentially, “But we always do it that way.” This is insufficient justification for their continued presence, as is the state’s argument that remaining in appellant’s apartment was appropriate because the entire encounter was very short—under six minutes.

The state’s brief suggests that the warrant check was part of the officers’ domestic-violence investigation; they wanted to determine whether there was a protective order in place. No evidence, however, explains why a warrant check on the appellant would provide information about a protective order and, in their testimony, the officers never mentioned checking, or wanting to check, for a protective order.

The state’s entire argument on appellant’s second and third grounds is based on “the statutory obligations of law enforcement officers to investigate domestic violence and protect victims.” Certainly, law-enforcement officers should investigate allegations of domestic violence and protect victims, but if such an investigation reveals that domestic violence was not involved and that there are no victims to protect, officers no longer have a sufficient legal basis for remaining in a residence over the objections of the resident.