Arrests at Suspect's Residence

by Charles Gillingham

In this article we will cover warrant arrests and general rules of consent.  Exigent circumstances will be covered in a subsequent article. 

 

WARRANT ARRESTS

In People v. Ramey (1976) 16 Cal.3d 263, the California Supreme Court ruled that an arrest within a suspect's home without an arrest warrant is per se unreasonable.  But, a warrantless probable cause arrest in a public place remains reasonable.  (United States v. Watson (1976) 423 U.S. 411.) 

WHAT THIS MEANS

SUSPECT in driveway of suspect's residence? Public place, no warrant required.

SUSPECT steps outside the residence at officer's request or demand? Public place, no warrant required.   Does not matter if the officer asks or demands the suspect come out, as long as suspect acquiesces to the demand that he or she exit the residence and does exit, no warrant is necessary. 

           SUSPECT is at doorway of residence?  Public place, no warrant required.  The United States Supreme court in U.S. v. Santana, 427 U.S. 38 has ruled a warrantless arrest initiated  on the arrestee's doorstep remains lawful even if the arrestee retreats inside the home before being physically taken into custody. 

 

WHAT CAN AN OFFICER DO ONCE INSIDE

           Remember, an arrest warrant is NOT a search warrant. However, an officer authorized to enter and search a home pursuant to a search warrant may also lawfully make a probable cause arrest inside the house being searched - no separate arrest warrant is needed.  Contraband seen in plain view may also be seized.  In that instance, STOP and get a SEARCH WARRANT. 

 

HOW ABOUT CONSENT TO ENTER RESIDENCE TO MAKE AN ARREST?

 

California courts have held  "A police entry into a residence is proper when the circumstances justify a good faith reasonable belief that a person on the premises has the authority to and does consent to such entry."  Entry to make arrest without an arrest warrant can also be upheld even though the person consenting to the entry is not the suspect about to be arrested.  Indeed, unless the suspect is present and objecting, a co-tenant can give consent to an officer's entry. 

Entry into a residence is valid when done with the occupant's consent.  Such consent can be expressed by actions, such as stepping aside and gesturing with an arm, as well as by words. Merely opening the door and stepping aside has been held to be sufficient manifestation of consent. 

REMEMBER

 

When asking for consent to enter it is important to ascertain whether the person has sufficient control and access to the residence to give valid consent. An overnight guest, a transient occupant or a person whose contact with the location is unclear, may not provide for valid consent to enter.  When in doubt, get an arrest warrant, they do not expire and provide legal protection for subsequent actions.