SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

With probable cause to believe a burglary is in progress, a warrantless
forced entry into a residence would be appropriate. However, under
circumstances where the officers should have known that the occupant of
a house was not a burglar (e.g., the ex-wife of the person believed to be
the resident, with the ex-wife having been given the residence in the
divorce, and under circumstances where it was not reasonable to believe
that she was burglarizing the house), a forced entry and confronting the
occupant at gunpoint is a Fourth Amendment violation subjecting the
officers to civil liability. (Frunz v. City of Tacoma (9 th Cir. 2006) 468
F.3 rd 1141.)
Scaling a six foot fence past a locked gate,, and thus entering defendant’s
side yard, was lawful when necessary to retrieve a firearm observed on the
ground where the officer feared for his own safety and the safety of a
seven year old minor who was suspected of being in the house. (People v.
Chavez (2008) 161 Cal.App.4 th 1493, 1503.)
The warrantless entry and search of a residence is lawful so long as there
is an objectively reasonable basis for believing that someone inside or the
officer is in serious danger, the manner of entry is reasonable, and the
scope of the subsequent search is reasonable. (United States v. Reyes-
Bosque (9 th Cir. 2010) 596 F.3 rd 1017, 1029-1030.)
Responding to a 911 call concerning a person climbing over a fence into a
residential backyard, and finding defendant who matched the description,
where defendant did not resist or attempt to flee and without any
indication of the presence of burglar tools or that the house was being
broken into, is insufficient cause to enter the curtilage of defendant’s home
(i.e., his fenced-off backyard) nor probable cause to arrest him for
attempted burglary or even trespass. A gun found on him in a search
incident to arrest should have been suppressed. (United States v.
Struckman (9 th Cir 2010) 603 F.3d 731, 739-747; suggesting that the
officers should asked him more questions and check his claims that he was
in his own backyard before arresting him.)
Police officers may make a warrantless entry into a residence whenever
they have an objectively reasonable basis for believing that an occupant or
the officers are imminently threatened with serious injury. (Ryburn v.
Huff (Jan. 23, 2012) __ U.S. __ [132 S.Ct. 987; 181 L.Ed.2 nd 966];
reversing the Ninth Circuit Court of Appeal’s decision that had held that
unverified rumors that the plaintiffs’ son had threated to “shoot up” a high
school, along with the son’s mother, who was generally uncooperative,
running back into the house when asked about firearms in the house, was
insufficient to justify an immediate entry.
© 2012 Robert C. Phillips. All rights reserved
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