A home study had been ordered of defendant’s house. A social worker arrived to do it with two officers watching from a car. Defendant refused to permit the social worker to enter, and, from the officers’ perspective, he was getting agitated talking about it and would not let her enter. The police entry could not be justified on any exigency or community caretaking function. Ross v. Commonwealth, 61 Va. App. 752, 739 S.E.2d 910 (2013):
In this case, the Commonwealth concedes the officers did not have probable cause to believe Ross may have committed (or was about to commit) a crime. Nor does the Commonwealth contend that Ross had hidden or destroyed (or was about to hide or destroy) incriminating evidence in his residence. On appeal, the Commonwealth relies solely on the emergency and community-caretaker exceptions to the warrant requirement.4 We find neither applicable to this case.
B. The Emergency Exception
. . .
The Commonwealth contends the emergency exception applies to this case because of the "danger to anybody in the house once [the social worker] entered." Appellee's Br. at 7 (emphasis added). This justification, however, depends entirely on the assumption that the social worker in fact would have entered the residence and thereby triggered the emergency situation. We find nothing in the record to support this assumption. Ross did not want the social worker in his home and told him so. The JDR district court "home study" order did not authorize the social worker to enter Ross's residence against his will. And nothing in the record suggests the social worker attempted to defy Ross and enter anyway. Other than asking for permission to enter and being turned down, the social worker made no effort to enter the residence. The police, therefore, faced no emergency — much less one constituting an imminent threat to their safety or to the safety of others.
Perhaps this case would be different if the social worker had already entered the residence, if the social worker had some legal right to enter over Ross's refusal, if Ross had reluctantly invited him inside despite his animated misgivings, if Ross had threatened him in any way, or if Ross had said or done anything to suggest he intended to arm himself. Any of these circumstances, given Ross's reputation for violence, may very well have justified a warrantless entry by the police. But none of them were shown to exist in this case.
C. The Community-Caretaker Exception
The Commonwealth also contends the community-caretaker doctrine applies because of the officers' duty to protect both the social worker and any of Ross's children within the residence. We again disagree. ...
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"The criminal goes free, if he must, but it is the law that sets him free. Nothing
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—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
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so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
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—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
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"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
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and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
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—Martin Niemöller (1945) [he served seven years in a concentration camp]
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—Pepé Le Pew
"There is never enough time, unless you are serving it."
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)