ACLU-WA Urges Court Not to Allow Warrantless Searches of Homes

Friday, November 10, 2017
Update 5/14/2018:  In State v. Blockman, the Washington Supreme Court decided that the resident had explicitly consented to a search of the entire home. Since the search was consensual, the Court saw no reason to decide whether the “protective sweep” exception to the warrant requirement can be applied when there is no arrest.

An old saying, Give them and inch, and they’ll take a mile, applies to a case now before the Washington Supreme Court.

In State v. Blockman, police officers went to an apartment to talk with a resident as part of an investigation into a reported robbery. After the resident invited the officers inside, the officers announced that they were going to walk through the rest of the apartment. As they did so, they saw a man apparently in the midst of conducting an illegal drug transaction.  

Article 1 Section 7 of the Washington Constitution protects homes against searches by the government without the authority of law, and a search warrant grants that authority. By walking through the apartment after they’d been invited inside by the resident, police conducted an impermissible warrantless search of the home, the ACLU of Washington said in a friend of the court brief filed in the case.
In other words, the resident gave police an inch and they took a mile.

The State argued, and the trial court and Court of Appeals agreed, that the search of the home was justified under an exception to the warrant requirement for “protective sweeps;” the officer had a reasonable belief that people might “jump out” during his questioning of the resident, the courts held. This was in spite of the fact that courts have consistently found the protective sweeps exception to the warrant requirement applies only when an arrest is being made— and sometimes not even then.
Fear alone should is not enough to justify the “protective sweep” exception.  Exactly the same reasoning would allow police to conduct searches when people are reporting themselves as victims of or witnesses to a crime, or whenever other people are or might be in the vicinity. It might also allow officers to conduct a “protective sweep” when civilians agree to talk with officers outside their homes, or when officers are simply walking a beat.

Courts have consistently held that when people invite law enforcement into their homes, they have a right to say where those officers can and cannot go. In this case, it was only by the resident’s courteous consent that officers were in her home in the first place. If she had declined to let the officers in at all, the officers would have had to seek a warrant, and the resident would have been within her rights.
By essentially holding that mere consent to let officers enter a home in order to talk is sufficient to enable officers to walk throughout a house and look through every room and closet, the lower courts make a mockery of this right.

Under our state constitution, any exception to the requirement for search warrants must be “narrowly drawn.” But rather than narrowing the “protective sweeps” exception, the Court of Appeals broadly expanded its scope.

There are many instances in which law enforcement officers can feel threatened in today’s society, and can point to facts to support that feeling.  But these do not justify the routine invasion of Washingtonians’ privacy—privacy that is constitutionally protected, and which all people in our state our entitled to expect.

The Washington Supreme Court heard oral arguments in State v. Blockman on November 14.
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