Failure to Object does not Equal Consent

Washington criminal defense attorneys were pleasantly surprised this week by a Washington State Supreme Court ruling that established that a citizen’s “failure to object” to a police officer’s entry into his home is not the same as “consenting” to a warrantless search of his home. The ruling was made on a case involving a 2004 incident in which police responded to a potential domestic violence call; police received a report of yelling at the tenant’s apartment and upon their arrival they heard the tenant and her roommate talking loudly. The entry was made with neither a warrant nor the tenant’s consent, but when the officers entered, the tenant did not object to their entry into her apartment; notwithstanding the fact that they had no evidence that an emergency was occurring, they entered the apartment. The unlawful entry ultimately led to drugs and drug paraphernalia being found in the home, which in turn led to a drug possession conviction of the apartment’s tenant. Such an entry by the police was deemed unlawful by the Washington State Supreme Court.

Although police don’t always need a warrant to enter a residence, the general rule is that citizen’s are protected from unlawful and unreasonable search and seizures. This protection stems from both the United States Constitution as well as the Constitution of Washington State. One exception to the warrant requirement is the “emergency exception”; police do not need a warrant to enter a person’s home when they are responding to an emergency. Seattle domestic violence attorneys (as well as their clients) will be inspired to know that Justice Tom Chambers (who wrote for the Court’s majority) penned that although court’s must recognize how sensitive such calls are and weigh that in favor of officers who enter homes without warrants, the officers in this case had no reason to believe anyone was in danger. In short, domestic violence protections must be equally consistent with the protections provided to all citizens via our state and federal constitutions. In other words, one does not trump the other; these protections must be harmonized with one another.

The January 13, 2011, Supreme Court decision was not unanimous. It was a 5-4 decision, with Justice Mary Fairhurst writing the dissent, arguing that the two officers did have reason to enter the apartment without consent or a warrant because there was a “domestic violence emergency”. Regardless, the law is now clear – a failure to object to police entering one’s residence is not the same as consenting to such entry; without consent, a warrant or an exception to the warrant requirement, police may not enter one’s residence.

If you or a loved one is involved in a situation involving an entry into your home or residence, it is imperative that a Seattle criminal attorney be retained as soon as possible to ensure all personal, professional and financial interests are protected. Seattle criminal lawyers Greg Schwesinger and Saad Qadri of SQ Attorneys represent defendants through all phases of their Washington State criminal case, including the investigatory stage. The Seattle criminal attorneys of SQ Attorneys are experienced and proven negotiators that make a world of difference for those accused of committing a crime. SQ Attorneys is a team of seasoned Seattle criminal lawyers that work tireless to achieve the best possible outcome for each and every client they have the honor of representing. Arrested in Western Washington? Call The Criminal Defense Team of SQ Attorneys at (206) 441-0900 or (425) 998-8384 for an initial free consultation.

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10.0Gregory Wayne Schwesinger
10.0Saad Qamer Qadri