Post details: VA: Defendant's refusal to submit to entry for a court-ordered home study did not support entry by police on any ground

04/17/13

Permalink 08:29:28 am, by fourth, 436 words, 811 views   English (US)
Categories: General

VA: Defendant's refusal to submit to entry for a court-ordered home study did not support entry by police on any ground

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):

[More:]

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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