{"id":5098,"date":"2011-05-01T18:32:17","date_gmt":"2011-01-18T00:02:36","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-01-17T08:52:36","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=5098","title":{"rendered":"WA: Potential for domestic violence here was just not enough for warrantless entry"},"content":{"rendered":"

Because of the jealous protection of the home, the evidence of the officers\u2019 need to enter the home in a \u201cpotential … domestic violence\u201d situation was just not sufficient. As far as officers knew, the situation had not reached the point of near violence. State v. Schultz<\/a>, 170 Wn. 2d 746, 248 P.3d 484 (2011) (dissent here<\/a>) (revg State v. Schultz, 146 Wn. App. 1057, 2008 Wash. App. LEXIS 2342 (2008)):<\/p>\n

\u00b624 We recognize a few jealously guarded exceptions to the warrant requirement. State agents need no warrant to provide emergency aid. Courts may consider that an entry is made into a home in the context of a domestic violence threat in considering the reasonableness of officers’ actions under the emergency aid exception. However, the State still has the burden of establishing facts to justify a warrantless search. The evidence that domestic violence was likely to occur in this case may be summarized as follows: (1) a report of a couple yelling, (2) the officers heard \u201craised voices\u201d and a man say he wanted to be left alone and needed his space, (3) when Schultz answered the door she appeared agitated, and (4) she reported that no one was there before a man appeared from the bathroom. That is not enough. We reject the trial court’s and the Court of Appeals\u2019 conclusion that Schultz consented by acquiescence because she failed to object when the police walked into her apartment. The State has failed to establish an exception to the warrant requirement applies. The evidence that Schultz possessed illegal drugs was obtained without authority of law. Schultz was entitled to have her motion to suppress the evidence granted. We reverse the courts below and remand for any further proceedings consistent with this opinion.<\/p><\/blockquote>\n

Silent acquiescence was not consent here:<\/p>\n

\u00b617 Thus the police, the trial court, and the Court of Appeals seem to be of the view that the protections of article I, section 7 against warrantless intrusions into private affairs and homes are easily waived by silent acquiescence. We disagree. Individuals do not waive this constitutional right by failing to object when the police storm into their homes. Nor do they waive their rights when the police enter their homes without their consent just because they are too afraid or too dumbfounded by the brazenness of the action to speak up. The right not to be disturbed in one’s home by the police without authority of law is the bedrock principle upon which our search and seizure jurisprudence is grounded. Wash. Const. art. I, \u00a7 7; Ferrier, 136 Wn.2d at 112 (citing Young, 123 Wn.2d 185).<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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