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Exigency – Domestic Violence – Entry of Residence

State v. Mark S. Mielke, 2002 WI App 251, PFR filed 10/3/02
For Mielke: David J. Van Lieshout

Issue/Holding: Warrantless entry of a residence by the police, to investigate a domestic violence report concededly providing probable cause, was supported by exigent circumstances where the police could reasonably conclude that the safety of the reported victim was being compromised.

This terse little opinion (4+ pp) bids to do for DV cases what California v. Carney, 471 U.S. 386, 388 (1985) did for vehicles — make the circumstance (whether DV or automobile) its own exigency. Of course, in one instance you’re talking about a vehicle and in the other a home, but the distinction is in danger of being blurred. That said, probable cause, necessary for warrantless entry in addition to exigency, was conceded. ¶7. Second, the police were responding to a (presumably) reliable report that someone had been struck and was spitting blood. Significantly, one of the officers had previously responded to DV reports at this home. Moreover, the reported victim, though she denied any problems, “was crying, shaking and cowering,” and as a result the police could reasonably believe that her safety was threatened. ¶10. The court could — make that, should — have stressed the fact-specific nature of the result; instead, it tosses off a casual aside to the effect that DV victims are inclined to falsely deny harm, ¶10, and id. n. 2, as if a judicially-noticed fact. But it’s the totality of the circumstances, as grudgingly recited in ¶10 that should control, and those circumstances may be meaningfully distinguished in the proper case.

A potentially pernicious aspect of the decision, though, may be its blithe promulgation of a standard of review that virtually compels judicial obeisance to police discretion. This is a state’s appeal — meaning, of course, that the trial court made findings of fact favorable to the defendant. The trial court, for example, found that when the police arrived, the scene was calm, with no sign of domestic violence. ¶9. This is, or should be, a finding entitled to deference, which the court of appeals nonchalantly sweeps aside: “When a police officer is confronted with two reasonable competing inferences, one that would justify the search and another that would not, the officer is entitled to rely on the reasonable inference justifying the search. See State v. Tompkins, 144 Wis. 2d 116, 124-25, 423 N.W.2d 823 (1988).” ¶8. But this threatens to turn appellate review in search cases into something resembling the rubber-stamp formula used in bindover, State v. Dunn, 121 Wis. 2d 389, 359 N.W.2d 151 (1984).

UPDATE: But see U.S. v. Davis, 290 F.3d 1239, 1244 (10th Cir. 2002):

As contended by Mr. Davis, granting unfettered permission to officers to enter homes, based only upon a general assumption domestic calls are always dangerous, would violate the Fourth Amendment. See Stewart, 867 F.2d at 584-85 (observing facts particular to the specific case bear on the validity of the exigency). Keeping in mind a warrantless search is more intrusive than the failure of police to comply with the knock-and-announce rule, as an analogy, the Supreme Court has already rejected categoric exclusion of drug cases from knock-and-announce compliance. Richards v. Wisconsin, 520 U.S. 385, 396 (1997) (“[W]e reject the blanket exception to the knock-and-announce requirement for felony drug investigations.”). Similarly, we hold an officer’s warrantless entry of a residence during a domestic call is not exempt from the requirement of demonstrating exigent circumstances.

Similarly: Brigham City v. Stuart, 2005 Utah 13, ¶44 (“We are also unwilling to replace the reasonableness requirement with a per se rule concerning domestic violence that disregards other factors in the totality of the circumstances. Our rejection of a rule that would grant a suspicion of domestic violence the status of a per se exigent circumstance does not render considerations of domestic violence irrelevant.”), reversed, other grds.Brigham City v. Stuart, USSC No. 05-502, 5/22/06; People v. Ormonde, Cal App No. H028471, 9/25/06 (“Nevertheless, to say that the warrantless entry into defendant’s home in this case was justified because of a police officer’s past experiences with domestic violence arrests would be tantamount to creating a domestic violence exception to the warrant requirement. This we cannot do.”).

On the other hand, see State v. Vallasenor-Meza, 2005 UT App 65 (and esp., ¶16) for an intimation that a DV complaint (at least when supported by probable cause) is virtually by definition a warrantless-entry justifying exigency. That said, the court does stress that the police had reason to believe “the fight was ongoing and the victim’s abuse was severe.” If limited to those facts, the result isn’t surprising. Like effect, U.S. v. Martinez, 9th Cir No. 04-30098, 5/16/05 (“The volatility of situations involving domestic violence make them particularly well-suited for an application of the emergency doctrine”; also noting other courts’ recognition “the combustible nature of domestic disputes” and thus need to afford “great latitude” to police belief exigency present); U.S. v. Black, 9th Cir No. 05-10640, 10/26/06 (recognizing “exigencies” of DV cases; but see dissent for collection of cases requiring clear showing that victim still in vicinity and in danger); see also dissent from en banc hearing, 4/10/07 (“The problem with this approach is that the government has any number of such crises-du-jour”).

And for a case which upholds the seizure of contraband under a domestic violence statutory scheme meant to protect DV victims, but which nonetheless suppresses use in a criminal prosecution, seeState v. Perkins, 358 N.J. Super 151, 817 A.2d 364 (2003).) But for authority noting “the legitimate concern that the exigencies of domestic abuse cases present dangers that, in an appropriate case, may override considerations of privacy,” see U.S. v. Brooks, 9th Cir. No. 02-50539, 5/13/04 (911 call from identified caller, reporting sounds of woman being beaten; police investigation provided at least some corroboration, and therefore probable cause; note court’s stress on nature of DV victims: “Considering the tendency of victims of domestic abuse to be less than forthcoming about the harms to which they were or will likely be exposed at the hands of an aggressor who remains on the scene, Perez was entitled to search inside the hotel room, which in the total circumstances was an objectively reasonable way to address the exigency.” See also State v. Steineman, 2004-Ohio-6188, Ohio App 3rd Dist No. 8-04-07, 11/22/04 (entry upheld where police responded to unidentified caller’s report of domestic disturbance and when arriving at scene saw and heard glass breaking and shouting); State v. Drennan, KS SCt No 90,954, 12/17/04 (known prior DV history supported warrantless, emergency-doctrine entry upon 911 call report of current DV disturbance).

Under § 813.12(4m)(a)2, a DV injunction may “require the respondent to surrender any firearms”: does this provision allow a court to order the police to search a residence for weapons? A sharply divided court discussing similar legislation finds in favor of such authority, Kelly v. Mueller, 2004 PA Super 425.

Note the holding in Town of Castle Rock v. Jessica Gonzales, USSC No. 04-278, that the due process clause clause does not confer on the holder of a DV injunction a property interest in its enforcement.

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