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- in Constitutional Rights
- by Stephen Gustitis
Occasionally I’ll visit the Texas District & County Attorneys Association (TDCAA) website and check on recent articles written by Texas prosecutors. I like to see what’s on their mind. I even enjoy their occasional disdain for the criminal defense bar’s work protecting the constitutional rights of citizens accused. Recently, I ran across an interesting article written by Brazos County Assistant County Attorney, Brian Foley, addressing several 4th Amendment search and seizure issues. Brian’s discussion piquing my interest was the authority of police officers to enter your home without a warrant. I’ve represented many clients over the years who’ve had the police knocking at their door. They always want to know their responsibilities in such a situation. So what do you do when the police are knocking? Must you answer? Must you let them in? Are you required to talk to them? Regardless of what you are doing inside, what are your responsibilities? A good Bryan attorney can help answer these important questions.
Citizens have an obligation to understand their rights and make informed decisions when interacting with law enforcement. First note, in most cases, the police are allowed to come to your door and knock. Kentucky v. King (SCOTUS) laid down the law in these circumstances. “When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak.” What’s the takeaway? Citizens are not required to answer the door or talk to the police when they’re knocking at your door without a warrant.
If you don’t consent to their entry, what the police need to enter and search your home without a warrant is: (1) probable cause and (2) exigent circumstances. The smell of marihuana, for example, is probable cause. But there must also be exigent circumstances before the police can enter without your consent and without a warrant. Most importantly, the exigent circumstances must be based on facts the police can articulate. There are three types of exigent circumstances:
• emergency aid: assisting someone inside the home whom police believe are in danger;
• hot pursuit: chasing a fleeing suspect who runs into a home; or
• preventing destruction of evidence.
Yes, it’s complicated. If the police believe something criminal is going on inside, they’ll figure a way to get in. But citizens have an obligation to protect themselves and understand the “hoops” law enforcement must jump through to gain access to your home without a warrant. Only then can they make informed decisions about waiving the probable cause and exigent circumstances requirements of the United States Constitution.
Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.