Blue Byline

A cop's perspective of the news and South Sound matters

Warrantless searches are no easier, no matter what you read

Post by Brian O'Neill on May 21, 2011 at 6:22 pm with 36 Comments »
May 22, 2011 9:34 am

“Where’s your search warrant!”

Over the years I have heard some version of this statement countless times, usually in situations with the potential for violence. Since we live in a free country where a person’s “home is his castle,” I usually assume that the resident won’t be happy to see a uniformed police officer crossing his threshold without a warrant. But let’s face it, bad things can happen inside a home, which is why the 4th Amendment’s protection against unreasonable search and seizure is so often the topic of criminal case precedents such as the one described in a recent Washington Post article reprinted in The Trib.

The only problem is that the article is incorrect.

To recap the story, the U.S. Supreme Court recently recently ruled in a criminal case involving police officers who 1) smelled the obvious scent of marijuana from outside the door of a residence; 2) heard the unmistakeable sound of said drugs being destroyed; 3) entered the residence without a warrant. The Post reported that the court gave those actions the stamp of approval, but the story’s author went too far by suggesting that this ruling amounted to new and expanded authority for law enforcement.

This convoluted viewpoint could lead to the inaccurate assumption that cops can now routinely bust down doors without the trouble of a search warrant. Our free society has historically been, and should rightly continue to be, wary of any government action that resembles the virtual police state from which we emerged by declaring our independence from Great Britain.

In reality, the court’s ruling did nothing more than affirm exceptions to search warrants that are already part of federal law (if you’re familiar with the mechanics of a search warrant, I’ll suggest you skip the next paragraph).

A search warrant is a written affidavit describing the officer’s (referred to as the affiant) training and experience, his or her observations, a description of the alleged criminal activity, and the scope of the search warrant requested. Typically this document is reviewed by a prosecutor, but ultimately it must be laid before a judge or magistrate for approval. It can be a time-consuming and difficult process, but in my experience it is exceedingly rare that a search warrant is denied.

There are exceptions to the requirement for search warrants, which you can peruse in this link to Wikipedia if you have trouble sleeping. The primary focus of this “precedent” is the “exigent circumstance” exception arising from the destruction of evidence of a crime. If you’ve ever watched the TV show “Cops” then you’ve probably viewed the trailer where officers yell “Police-Search Warrant!” at the same time the battering ram hits the door. Narcotics warrants are typically an automatic exigent circumstance because of the ever-present sound of a toilet flushing down the dope.

Warrantless search exceptions follow the same principle. Imagine that you are a police officer arriving at an apartment unit to take a theft complaint. Just before knocking you smell the unmistakeable odor of a methamphetamine lab (a cross between cats and urine–go figure) from the unit next door. You step towards this door as a subject opens it, sees you, and darts back inside. You hear the sound of a sink running, glass breaking and items being tossed out a window. Based on your training and experience you’ve developed probable cause for a search warrant, but it’s also clear that the meth cook is now tossing the dope and destroying the lab equipment in an attempt to avoid arrest. Can you run in, confirm your suspicions and make an arrest?

The answer, both before and after this court ruling, is yes. Here’s a follow up question–should you go into this particular apartment?

That answer is no, unless you like explosions and exposure to extremely toxic chemicals. But that’s a discussion for another day.

Leave a comment Comments → 36
  1. UnbiasedReporter says:

    Well, I guess it depend on what you read – like the decision by the Indiana Supreme Court:

    The Indiana Supreme Court has ruled that people cannot keep police from entering their homes, even if the entry is “unlawful.”

    “We believe. . .a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence,” wrote Justice Steven David. “We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.”

  2. billyizme says:

    O’Neil is basically correct in his analysis.

    UnbiasedReporter, I haven’t read the Indiana opinion, but from your quote, I bet it holds that a citizen cannot shoot the police as they cross the threshhold because it is better to determine the lawfulness of the warrant in court. It prevents a lot of dead bodies that way.

  3. UnbiasedReporter says:

    In Indiana, the justices ruled 3-2 that people don’t have the right to resist police officers who enter their homes illegally — with no warrant, no consent or without exigent circumstances.

    According to news reports, the ruling dealt with a case in which an Evansville man blocked police and shoved an officer who tried to enter his home without a warrant after his wife called 911 during an argument. The man was shocked with a stun gun and arrested. His wife told police officers he had not hit her.

    “no warrant, no consent or without exigent circumstances.”

    Any cop, at anytime, can just kick open your door and enter and if you do anything you’re the criminal?

    Walks up to your door, knocks and then just walks right in – sorry, you can’t do anything accept file a complaint after the fact that may or may not be acted on.

  4. UnbiasedReporter says:

    Of course the man was lucky – if it had been the Seattle PD he would have been shot because they were afeared

  5. Brian O'Neill says:


    You’ve got a point, but only up to a point. It does seem ridiculous that the police can show up at your door, without a warrant or exigent circumstances, and the court (at least in Indiana) decrees you have no right to resist the intrusion. But the court, believe it or not, has its reasons. First, as billyizme points out, resisting the forceful entry of police will likely result in injury or death of the homeowner or police officer. Second, the court obviously feels that the proper place to arbitrate the issue of an illegal search is in a courtroom.

    The usual scenario for an unlawful entry is either a mistaken address, or more likely, an incorrect location provided by a criminal informant. These usually lead to civil lawsuits and big payouts to the offended residents. In the very rare scenario of criminal intent on the part of a police officer entering a residence unlawfully, judges are extremely likely to make an example out of them–as they should.

    You also brought up domestic violence, which is the most typical exception to the search warrant requirement. Domestic violence is now recognized for the societal cancer that it truly is, and the law recognizes that DV victims are often unable to help themselves. As a result of fear and/or lack of self esteem, victims will often lie to police to help their abuser. In the past police have left scenes of extreme violence without action because victims convinced the officers that nothing occurred. Today we are charged to protect victims by conducting a welfare check inside the residence to ensure that no one’s safety is in jeopardy. This is a clear example of the exigent circumstances for purposes of safety. If I were to make entry into a residence on this basis, saw dope on the ground and arrested you without getting a subsequent warrant, the prosecutor would drop the charges. That’s how it works. These are issues that we discuss almost daily.

  6. APimpNamedSlickback says:

    The court never actually said that homeowners cannot resist police who enter illegally; they said that homeowners cannot adjudge the legality of an officer’s entry in the heat of the moment. Because of that inability, the homeowner would essentially be incapable of determining whether his resistance was warranted, and given that he has a number of options to redress an improper intrusion or arrest, the safety of all involved outweighs the homeowners right to resist. The court never said that police can enter a home without either a warrant or exigent circumstances, except for hot pursuit.

    An officer who enters a home illegally is still obliged to leave upon the homeowner’s request, but the homeowner is limited to instructing the police to leave. He can’t physically remove the officer, which is what happened in the Indiana case.

    Specifically, what happened was: the wife called 911 and the officers were dispatched to a “domestic violence in progress.” When they arrived, the encountered the plaintiff in the parking lot where he was making a scene, drawing people out of their apartments. The officers warned him that if he did not calm down he would be arrested for disorderly conduct. He continued his disorderly behavior. The wife brought out the plaintiff’s things and told him to leave. The plaintiff then followed the wife, angrily, back into their apartment. The police followed. At the door, the plaintiff blocked the officers and told them not to enter. The wife said “just let them in.” The officers tried to enter and the plaintiff struck one, pushing him into a door. Hilarity ensued, and guess who won?

    The court noted the officers actions were appropriate, but that it was not necessary to even determine the legality of their entry, as that was not the issue. The plaintiff was aware of the officers’ presence, the purpose of their presence, and had even been warned of his impending arrest. In the moment though, he – like any homeowner – was incapable of assessing the totality of the situation, such that he could place his property rights above the rights of his wife and the officers to their safety.

    Brian: Setting aside the court’s conclusion, in your professional opinion, if you were responding to this call with these circumstances, when you got to the door and heard the wife say “just let them in,” wouldn’t you interpret that as one of the homeowners inviting you in, thus negating the need for a warrant or exigent circumstances?

  7. LibertyBell says:

    But if a deputy can’t pass any 4th Amendment reading comprehension class, getting drug down to a United States District Court, under the Ku Klux Act of 1871, for criminals employed by your local Queen Christine, shown best in her attempts to defend the indefensable, you can waste a few more millions with another jury award, the Queen’s Classics shown best as Attorney General, defending the her best employees, the convicted Klansmen with the Ku Klux Act of 1871 (42 USC 1983)

    Did Mr Justice Douglas, not explain the Ku Klux Klan Act to perfection in Monroe v. Pape 365 US 167.

    Any local democrat knows his party motto, just go review your Sheriff’s and Chiefs Organization, and the convicted Klansmen Kings, even the Chiefs executive director, was shown best in a Klan Act Case for his inability to read the 1st Amendment, after exercising an illegal shutdown of a newstand in this state of confusion.

  8. Brian O'Neill says:

    I’ll be honest, LB, I had a tough time understanding your comments.

  9. Brian O'Neill says:


    To answer your question I’ll need to invoke the caveat that the following interpretation is based on WA State law, which is far more restrictive towards law enforcement than most states.

    In your scenario, the husband and wife are in disagreement over allowing entry of police officers to their home. If it appears to the officers that both parties share legal residence in the home, then mutual consent would be necessary for law enforcement to enter. In short, if wife says “Come in” and husband says “Stay out” then the cops may not enter. As I mentioned, this is probably more restrictive than the federal standard, as well as that of other states, but the “exigent circumstances” exception still apply here.

  10. LibertyBell says:

    It’s always tough understanding any comment about the criminals employed by the State, just drive your crown victoria, up to the house, and invent the
    “exigent circumstances”

  11. Brian O'Neill says:

    LB- Your comment says one thing and the article you linked says the opposite. The Seattle Times story shows exactly how harshly the criminal justice system deals with cops who break the law. Cops are, first and foremost, human beings, and when we make mistakes we usually get the sharpest end of the stick.

    Did you even read your own example?

  12. LibertyBell says:

    Well Brian,

    The Yakima County Sheirff’s a law man,and there is a difference, depending on the club, your a mamber of.

    When exactly do these members get the law enforced for their departmentsa criminal violations, using the Tacoma Model shown best with Janovich, and Brame?

  13. APimpNamedSlickback says:


    Thanks for the WA perspective on that. About a year ago I was on a ride along with a sheriff’s deputy and we went on a DV call. Two other deputies arrived before we did, and obviously the guy didn’t want them coming in. After the call, the deputy I was riding with explained to me that when they got to the door, the guy’s wife said “come in here and help me.” He said that as long as one person that they reasonably believed to be a resident asked them to come in, then they could enter. Then, once they were inside and saw evidence of a possible crime (in this case, her bloody lip) they could stay inside to investigate. So clearly the standard is different depending on what state you’re in.

    Another important issue regarding the Indiana case that nobody has pointed out, is that the court stated in its reasoning that it was not the first state to do away with the common law right to resist, and that many states, had either disposed of it through statute or precedent dating back to the mid-1940’s. So really, there’s nothing novel about Barnes v. Indiana, except that it added one more state to that list.


    Wow… just, wow.

  14. BlaineCGarver says:

    I think LEOs watch too much TV. In this day and age when uniforms can be bought online, someone smashing through my front door (and I assure you, it would be a mistake as I absolutely am and will be crime free) will be shot at. And if it is an LEO, I’ll be shot and killed, and swept under the rug or bus. Admit it, Brian, most of those violent entries could have been done peacefully at another time and location. IMO as a lawful citizen, LEOs were never intended to be a para-military organization.

  15. smokey984 says:

    BlaineCGarver says:
    Admit it, Brian, most of those violent entries could have been done peacefully at another time and location.

    That is a great point!

    With today’s technology and training there’s a metric ton of OTHER options to our Peace Officers besides kicking in doors. And kicking in doors a method of LAST RESORT only…

  16. smokey984 says:

    And the continued LONG SLOW collapse of our Justice system:,0,2337401.story

    Good story for those of you with your heads in the sand…

  17. Brian O'Neill says:

    You are right about other states have joined in Indiana’s stance on police entries. Many departments have now decided to turn responsibility of search warrant services over to over their SWAT teams because of the heightened risk for violence. I lost a colleague a few years back during a search warrant and I can tell you from experience that each is different and the scenarios are anything but static.

    In our case in WA, we do have the exigent circumstance to enter in DV cases, regardless of consent, but the result could be losing evidence of an unrelated crime if we do so. The purpose is to keep people safe, so secondary crimes, like drug offenses, are just that–secondary. Thanks.

  18. Brian O'Neill says:


    I’m curious whom you think we should call out to arrest the barricaded dude who just robbed a bank and killed several people…the army? Nope, posse comitatus law. In short, we have a violent society on our hands and it would be irresponsible to 1) not enforce the law; 2) send law enforcement officers in without proper protection.

    I also completely disagree with your viewpoint on search warrants in terms of timing. Unless police are looking for a subject, such as a murder suspect, there is usually a direct and methodical buildup to a warrant. The process can take hours and most are served with little to no fuss.

    And I don’t watch cops on TV. I find it unrealistic.

  19. LibertyBell says:

    Is a warrant required to search your police station Brian?

    “The problem with too many people is they believe the realm of truth always lies within their vision” A. Lincoln

  20. olympicmtn says:

    “But let’s face it, bad things can happen inside a home, which is why the 4th Amendment’s protection against unreasonable search and seizure….”

    Perhaps the TNT should admonish then the City Council and Mayor Baarsma when they defended the most unthinkable act of search and seizure case in Tacoma.

    Recall the famous Frunz v. City of Tacoma Case where punitive damages were awarded????? When David Alred City of Tacoma Police Officer tore down Susan Frutz door and kept her at gun point tied her up and then said “Never mind.” This was the case that cost the City of Tacoma millions from a Ninth Circuit Court of Appeals where the judge even said” :“Surely, the citizens of Tacoma would not want to be treated in their own homes the way the jury found officers Stril, Morris and Alred treated Frunz and her guests,” Kozinski wrote. “A prompt payment of the verdict, accompanied by a letter of apology from the city fathers and mothers, might have been a more appropriate response to the jury’s collective wisdom.”

    The jury award, which the city must pay, included punitive damages against all three officers.

  21. LibertyBell says:

    They like spending tax money on the Klansmen, in Washington State.

    Join the Pierce Kounty Klan, supported by facts and history, and discussed by one lawyer from Washington State, writing about the Klan’s employment requirements.

  22. smokey984 says:

    Random House to House Searches Authorized As Police State Expands
    Author: Mac Slavo
    – May 17th, 2011

    It seems no matter how many laws and mandates government passes, whether on the federal, state or local level, it’s never enough.

    The latest violation of the right to be safe in our homes and our persons comes from the Indiana Supreme Court:

    According to Newton County Sheriff, Don Hartman Sr., random house to house searches are now possible and could be helpful following the Barnes v. STATE of INDIANA Supreme Court ruling issued on May 12th, 2011. When asked three separate times due to the astounding callousness as it relates to trampling the inherent natural rights of Americans, he emphatically indicated that he would use random house to house checks, adding he felt people will welcome random searches if it means capturing a criminal.

    Granted, this is a State Supreme Court and the US Supreme Court could throw out the decision as unconstitutional, we aren’t holding our breath. Just yesterday, the US Supreme Court ruled 8 to 1 that Kentucky police who smelled marijuana at an apartment door, knocked loudly and announced themselves, and then kicked in the door when they thought the drugs were being destroyed did nothing wrong. The similarities in the rulings cannot be ignored. You see, in the Kentucky US Supreme Court ruling, the police officers who kicked in the door had been tracking a criminal in the area. As they were walking around the neighborhood, they indicated that they smelled marijuana, and came to the conclusion that the criminal they were tracking must be the one smoking it. They then kicked the door down. The resident of that dwelling, who had no relation to the original criminal or crime committed, was then arrested.

    No matter your stance on marijuana laws, Karl Denninger highlights why this is a dangerous precedent:

    The primary problem with these sorts of cases, of course, is that the law exists at all on this basis. We create circumstances in which the police have to manufacture cause to bust in a door behind which adults are peacefully conducting themselves in consensual conduct. Having passed laws that are logically indefensible from the first principle that you own your person we are then forced to create more and more elements fo an outright police state to “enforce” these misguided and logically defective statutes.

    First the government provided billions in funding for street cameras for just about every major intersection in the country. They required roving bug technology in all new cell phones. They created cyber security divisions whose sole purpose is to monitor internet traffic – everything from email and text messaging to phone calls and online community forums. They even made investments into large internet firms so that they can create and monitor social trends and relationships. To store, process and cross examine all of the data, they created Fusion centers in most U.S. metropolitan areas.

    As if that weren’t enough, the government is now further expanding its power. They tell us what to eat – what’s healthy (e.g. GMO foods and rBST infused milk) and what’s bad for our diet (natural foods, sugar, salt). They tell us when and where to go for health care. They decide who can be groped in public and why.

    Now, they can choose to enter your home, for virtually any reason, and if you happen to be breaking one of the tens of thousands of laws that exist on the books, you are jailed. Even if you aren’t breaking the law, and completely within your Constitutional, State and local rights, you may end up like Mark Fiorino, a 25-year-old IT worker who was recently detained by police for lawfully open carrying a firearm. Police assumed he was breaking the law (apparently they didn’t know the law). He wasn’t. That didn’t stop them from threatening to shoot him. He was eventually released and not arrested for the firearm issue. He was, however, arrested after he released a Youtube audio clip of the encounter. According to police. Fiorino was charged with reckless endangerment and disorderly conduct because he refused to cooperate with police.

    Are we living in the same America we did ten years ago?

    Will we recognize America ten years hence?

  23. brett987654321 says:

    I am deeply alarmed by the amount of power we continue to hand over to police at a time when they have made it clear they are more interested in serving their own interests rather than the public’s. I am more afraid of a botched police raid than I am of any home invader.

  24. BlaineCGarver says:

    Brian, I know you are the Good Guys, but bending the constitution to do your job is not acceptable. Situational ethics suck as well.

  25. All this talk about warrantless searches has made me a bit curious. Does our rank and file police actually take an oath to uphold and protect the constitution of the united states, and if so, how many simply ignore it? For example, during hurricane Katrina, law enforcement officers were ordered to confiscate all firearms due to the “state of emergency”. A blatantly illegal order, yet the police saluted and went out and essentially robbed otherwise law abiding citizens of their property, a lot of times at gun point. How can the police mouth an oath, yet ignore several basic aspects of the bill of rights? Not only did the police disarm it’s citizens and denied them the right of self defense, it allowed the real criminals free reign to rape and pillage, making matters worse. If Brian was faced with the same directive under similar circumstances, would he refuse, or simply click his heels, salute, and carry out his “orders”?

  26. BlaineCGarver says:

    In the military, we were cautioned to disobey illegal orders. It was a very fine line between Illegal and Unpleasant order, but it was there. There is a clique called Oath Keepers: military, LEOs, etc that have sworn not to follow orders that would violate obvious civil rights even in times of emergency. People are also getting in trouble for belonging to that group. I know where I would be.

  27. MarksonofDarwin says:

    There are perfectly reasonable scenarios for SWAT presence. When there is a known violent offender or a crime in progress (as your example illustrates) then using SWAT is appropriate.

    Even those in law enforcement have to admit (on some level) that there has been a fair amount of mission creep. Early morning SWAT raids on non-violent offenders is becoming SOP, and that should give LEOs pause…not a reason to defend the practice.

    The original purpose for SWAT teams was to diffuse the potential for harm and violence. When serving a warrant in the wee hours of the morning, in full gear, with firearms and flash bombs, it is the SWAT teams who are perpetrating and escalating the violence….not the previously sleeping, but now frightened and confused homeowner.

    Innocent people have been killed during these types of raids.
    Good, honorable officers are also gone.
    Instead of the courts making this type of action easier for police, they should be studying the harmful affects. And frankly….so should the police. If not only for their own safety.

  28. smokey984 says:

    Good Points MarksonofDarwin.

    The continued militarization of our society’s first responders by the brain washing of media, university professors pushing an agenda, Politicians passing unreasonable laws has taken its toll the last 40 years or so and unfortunately will probably lead, and i pray it wont, to the law abiding citizens taking up arms against the same folks who are pushing this nanny state agenda. Its my feeling the peace officers who still exist in our society will be on the right side of that battle.

  29. Brian O'Neill says:

    SWAT teams killing innocent people, disobeying illegal orders, bending the Constitution…I’m not sure you guys are reading the same article.

    Cops make decisions for themselves based on the law as it is printed. We don’t have supervisors and commanders breathing down our necks telling us to rough a guy up or otherwise break the law. This ain’t the NHL. We don’t bend the Constitution, we bend for it. Miranda and Gant are just two of the countless court cases that have severely limited the scope of law enforcement in the years I’ve been on the job. The tide is rolling the other way, folks, just pick up a Law Enforcement Digest and read. That’s the document we read to learn what else we CAN’T do today that we could yesterday.

    The whole point of my column was to point out that the court case did nothing more than affirm what we already practice. It did not expand our scope.

    As for SWAT teams…they are routinely used to serve warrants because they are far better trained at handling searches safely. I’ll say that word again: safely. I worked with a great cop, point man on the SWAT team, shot and killed by a barricaded subject. He was the best, but this is dangerous stuff and these are not law-abiding citizens tucked into their beds. They are armed up dope dealers, bank robbers and otherwise dangerous individuals rousted out of their beds in the wee hours so they don’t come out firing in our faces. Honestly, some of you folks need to take a ride-along in a patrol car and wake up. I’ve been to way too many funerals.

  30. MarksonofDarwin says:


    As far as the court decision not expanding warrantless searches, time will tell.

    As I said earlier, there are perfectly legitimate uses for SWAT teams. I know that police encounter marginal people every single day. I understand that they are professionals and that this isn’t the NHL or even the OK corral…..we also don’t live in a dystopian society where police are outnumbered by criminals. In fact, the opposite is true. There are far more law abiding citizens than cops.

    As far as innocents being wrongly targeted….it does happen.
    I’m not including any of the videos, but all of this stuff is freely available on the web.

    I’m merely suggesting that using SWAT for routine search warrants is a practice that needs further scrutiny by our politicians, courts and law enforcement. It’s past time for an honest dialogue. I now see that this is probably not the best forum for it, and I’m sincerely not looking for a fight. I apologize if you’re feeling attacked and I wish you well…

  31. BlaineCGarver says:

    Brian, I’d love a ride along.

  32. Brian O'Neill says:

    Mark- Please do not mistake my tone for anger or condescension. I mean this to be a forum for the even exchange of ideas, though I admit to some frustration at this point.

    To recap, there is NO such thing as a routine search warrant. Anytime you cross the threshold it’s anybody’s guess as to how someone might react. Having a group of professionals who can quickly and safely serve the warrant, as opposed to patrol officers that have far less experience and less specific training, is simply the prudent course of action. The politicians can discuss this issue until they’re blue in the face, but until they decide they’re ready to take the plunge and put on a badge, they know to leave that type of operation to the individuals who routinely perform it.

  33. Brian O'Neill says:

    Check with your local cop shop or sheriff’s office. They typically allow ride-alongs, especially if you’re interested enough to sign up for the citizen’s academy.

  34. smokey984 says:

    Heres a good article to read:

    As Ive previously said the continued militarization of our first responders will eventually lead to more violence…Enjoy!

  35. Brian O'Neill says:

    I don’t know about other departments, but the Valley SWAT team has a Bearcat. This particular armored vehicle isn’t tracked like a tank, but does have many similar characteristics. It’s purpose is to provide cover for SWAT officers who must cross the no-man’s land that would otherwise be a killing field for a criminal with a rifle.

    Deploying from these types of vehicles is as much about protecting the lives of the officers as it is the life of the armed individual they are attempting to subdue. If our intent were otherwise we’d just lob a grenade.

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