Domestic violence is a major problem in the United States. Almost every state has passed laws designed to provide added protection for victims of domestic violence. Some of these laws provide exceptions to our constitutional protections. For example, officers must make an arrest if they have evidence that there was domestic violence when they respond to a call for assistance. Officers are authorized to enter a home without a warrant if they think that there may be a victim of domestic violence in the property. The officers may also conduct a “protective sweep” if there is a real concern for safety.
Warrantless searches of residences are presumptively unreasonable under U.S. Const., 4th Amend. But police performing an in-home arrest may conduct a limited search for their own protection, known as a protective sweep, under certain circumstances where they have a reasonable suspicion that there may be a dangerous person in the area to be swept.
However, California courts have held that not all searches related to domestic violence are legal. In People v. Werner, 207 Cal.App.4th 1195 (2012) The court of appeal held that it was unlawful, under U.S. Const., 4th Amend, for a deputy to enter defendant's home while accompanying his roommate when he retrieved defendant's keys and shoes. The protective sweep doctrine did not justify the entry into defendant's home and then his bedroom. Defendant was in handcuffs outside the residence and presented no threat to the deputies. The domestic violence incident being investigated had occurred hours earlier, and the alleged victim was no longer at defendant's home. The roommate also posed no threat. He had been cleared by a deputy of any warrants, and had been frisked and found to have no weapons. There was no evidence that the roommate had a criminal history or that the deputies had other evidence suggesting he was a danger to them. There was no evidence that deputies were aware of any ongoing criminal activity in the home, or that others were present inside. No suspicion of the presence of weapons could be inferred merely by the nature of the suspected crime of domestic violence. The evidence showed nothing more than a generalized concern for officer safety on the part of the deputy.
In Washington Law enforcement may make a warrantless search of a residence if (1) it has a reasonable belief that assistance is immediately required to protect life or property, (2) the search is not primarily motivated by an intent to arrest and seize evidence, and (3) there is probable cause to associate the emergency with the place to be searched. In State v. Schultz 170 Wn.2d 746 (2011) the emergency aid exception was clarified. The court held that the likelihood of domestic violence may be considered by courts when evaluating whether the requirements of the emergency aid exception have been satisfied. The court further held that the State did not show that its entry into defendant's home was justified by the emergency aid exception. At the moment the officers crossed the threshold to defendant's apartment, they did not have enough facts to justify an entry based upon the emergency aid exception. Defendant's mere acquiescence to the entry was not consent and was not an exception to the State's constitutional protection of the privacy of the home. . The State has the burden of establishing facts to justify a warrantless search. The evidence that domestic violence was likely to occur in this case may be summarized as follows: (1) a report of a couple yelling, (2) the officers heard “raised voices” and a man say he wanted to be left alone and needed his space, (3) when Schultz answered the door she appeared agitated, and (4) she reported that no one was there before a man appeared from the bathroom. That is not enough. We reject the trial court's and the Court of Appeals' conclusion that Schultz consented by acquiescence because she failed to object when the police walked into her apartment. The State has failed to establish an exception to the warrant requirement applies.
In both of these cases there were violations of the Civil Rights of the people arrested. They were illegally seized, and or their property was illegally searched. Just because there is a domestic violence allegation the police do not have a right to just ignore the Constitution.
The Law Firm of Kallis & Assoc. p.c. is dedicated to protecting your rights. It does not matter what you have been accused of, what matters is whether the police violated your rights, and if they did you have the right to sue them.
California Law
13700. As used in this title:
(a) "Abuse" means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.
(b) "Domestic violence" means abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. For purposes of this subdivision, "cohabitant" means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as husband and wife, (5) the continuity of the relationship, and (6) the length of the relationship.
Penal Code 273.5 pc Corporal Injury to a Spouse or Cohabitant -- Penal Code 273.5 makes it illegal to inflict a "corporal injury" resulting in a "traumatic condition." A person commits this crime by striking his/her intimate partner in some violent way and causing a visible injury, even a slight one such as swelling or a bruise. This California domestic violence law can be charged if the alleged victim is a current or former spouse or cohabitant or the parent of your child.
Penal Code 243(e)(1) pc Domestic Battery -- Penal Code 243(e)(1) makes it a misdemeanor crime to inflict force or violence on an intimate partner...a category that includes your fiancè, cohabitant, the parent of your child, or your current or former spouse or dating partner. Unlike Penal Code 273.5, this California domestic violence law does not require a visible injury.
Penal Code 273d pc Child Abuse -- Penal Code 273d makes it a crime to inflict "corporal punishment or injury" on a child if it was "cruel or inhuman" and caused an injury (even a slight injury). California child abuse laws allow a parent reasonable latitude to spank a child, but draw the line where the punishment is cruel or injures the child.
Penal Code 273a pc Child Endangerment -- Penal Code 273a makes it a crime willfully to allow a child (in your care or custody) to suffer harm or to have his/her safety or health endangered. An example would be a mother who permits her boyfriend to beat her 6-year-old; or a parent who operates a dangerous meth lab in the same home where his/her child lives.
Penal Code 368 pc Elder Abuse - Penal Code 368 makes it a crime to inflict physical abuse, emotional abuse, neglect, endangerment or financial fraud on a victim 65 years of age or older. The crime is usually charged against caregivers, but can also be charged against anyone who commits these sorts of offenses against a senior citizen victim.
Penal Code 422 pc Criminal Threats -- Penal Code 422 makes it a crime to communicate a threat of serious harm to someone if (1) you intend to put the person in fear, and (2) you actually do put the person in sustained fear. Criminal Threats may be charged as a misdemeanor or a felony. As a felony,
Washington law
Washington State law defines domestic violence offenses as virtually any criminal act committed by one "family or household member" against another. Domestic violence misdemeanor offenses include: assault, property destruction, harassment and telephone harassment, intimidation with a weapon, reckless endangerment and violation of no contact or domestic violence protection orders. Felony domestic violence offenses, such as a No Contact Order violation involving an assault, a third violation of a No Contact Order, assault with a deadly weapon, or even murder, are heard in Superior Court. A "family or household member" includes persons who are now or have been married or resided together, who have been or are presently in a dating relationship so long as both parties are at least sixteen years of age, and persons who have a child in common. In addition, parent-child and step-parent, step-child relationships, grandparent-grandchild (including step-grandparents) and siblings come within the definition of a "family or household" relationship.
The law requires a police officer responding to an incident of domestic violence to make an arrest if the officer has probable cause to believe that a domestic violence assault or other serious domestic violence offense was committed within the previous four hours. If the officer determines that family or household members have assaulted each other, the officer will arrest only the person he or she believes to be the primary aggressor. State law also requires mandatory arrest for violations of No Contact Orders and Civil Protection Orders.
Warrantless searches of residences are presumptively unreasonable under U.S. Const., 4th Amend. But police performing an in-home arrest may conduct a limited search for their own protection, known as a protective sweep, under certain circumstances where they have a reasonable suspicion that there may be a dangerous person in the area to be swept.
However, California courts have held that not all searches related to domestic violence are legal. In People v. Werner, 207 Cal.App.4th 1195 (2012) The court of appeal held that it was unlawful, under U.S. Const., 4th Amend, for a deputy to enter defendant's home while accompanying his roommate when he retrieved defendant's keys and shoes. The protective sweep doctrine did not justify the entry into defendant's home and then his bedroom. Defendant was in handcuffs outside the residence and presented no threat to the deputies. The domestic violence incident being investigated had occurred hours earlier, and the alleged victim was no longer at defendant's home. The roommate also posed no threat. He had been cleared by a deputy of any warrants, and had been frisked and found to have no weapons. There was no evidence that the roommate had a criminal history or that the deputies had other evidence suggesting he was a danger to them. There was no evidence that deputies were aware of any ongoing criminal activity in the home, or that others were present inside. No suspicion of the presence of weapons could be inferred merely by the nature of the suspected crime of domestic violence. The evidence showed nothing more than a generalized concern for officer safety on the part of the deputy.
In Washington Law enforcement may make a warrantless search of a residence if (1) it has a reasonable belief that assistance is immediately required to protect life or property, (2) the search is not primarily motivated by an intent to arrest and seize evidence, and (3) there is probable cause to associate the emergency with the place to be searched. In State v. Schultz 170 Wn.2d 746 (2011) the emergency aid exception was clarified. The court held that the likelihood of domestic violence may be considered by courts when evaluating whether the requirements of the emergency aid exception have been satisfied. The court further held that the State did not show that its entry into defendant's home was justified by the emergency aid exception. At the moment the officers crossed the threshold to defendant's apartment, they did not have enough facts to justify an entry based upon the emergency aid exception. Defendant's mere acquiescence to the entry was not consent and was not an exception to the State's constitutional protection of the privacy of the home. . The State has the burden of establishing facts to justify a warrantless search. The evidence that domestic violence was likely to occur in this case may be summarized as follows: (1) a report of a couple yelling, (2) the officers heard “raised voices” and a man say he wanted to be left alone and needed his space, (3) when Schultz answered the door she appeared agitated, and (4) she reported that no one was there before a man appeared from the bathroom. That is not enough. We reject the trial court's and the Court of Appeals' conclusion that Schultz consented by acquiescence because she failed to object when the police walked into her apartment. The State has failed to establish an exception to the warrant requirement applies.
In both of these cases there were violations of the Civil Rights of the people arrested. They were illegally seized, and or their property was illegally searched. Just because there is a domestic violence allegation the police do not have a right to just ignore the Constitution.
The Law Firm of Kallis & Assoc. p.c. is dedicated to protecting your rights. It does not matter what you have been accused of, what matters is whether the police violated your rights, and if they did you have the right to sue them.
California Law
13700. As used in this title:
(a) "Abuse" means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.
(b) "Domestic violence" means abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. For purposes of this subdivision, "cohabitant" means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as husband and wife, (5) the continuity of the relationship, and (6) the length of the relationship.
Penal Code 273.5 pc Corporal Injury to a Spouse or Cohabitant -- Penal Code 273.5 makes it illegal to inflict a "corporal injury" resulting in a "traumatic condition." A person commits this crime by striking his/her intimate partner in some violent way and causing a visible injury, even a slight one such as swelling or a bruise. This California domestic violence law can be charged if the alleged victim is a current or former spouse or cohabitant or the parent of your child.
Penal Code 243(e)(1) pc Domestic Battery -- Penal Code 243(e)(1) makes it a misdemeanor crime to inflict force or violence on an intimate partner...a category that includes your fiancè, cohabitant, the parent of your child, or your current or former spouse or dating partner. Unlike Penal Code 273.5, this California domestic violence law does not require a visible injury.
Penal Code 273d pc Child Abuse -- Penal Code 273d makes it a crime to inflict "corporal punishment or injury" on a child if it was "cruel or inhuman" and caused an injury (even a slight injury). California child abuse laws allow a parent reasonable latitude to spank a child, but draw the line where the punishment is cruel or injures the child.
Penal Code 273a pc Child Endangerment -- Penal Code 273a makes it a crime willfully to allow a child (in your care or custody) to suffer harm or to have his/her safety or health endangered. An example would be a mother who permits her boyfriend to beat her 6-year-old; or a parent who operates a dangerous meth lab in the same home where his/her child lives.
Penal Code 368 pc Elder Abuse - Penal Code 368 makes it a crime to inflict physical abuse, emotional abuse, neglect, endangerment or financial fraud on a victim 65 years of age or older. The crime is usually charged against caregivers, but can also be charged against anyone who commits these sorts of offenses against a senior citizen victim.
Penal Code 422 pc Criminal Threats -- Penal Code 422 makes it a crime to communicate a threat of serious harm to someone if (1) you intend to put the person in fear, and (2) you actually do put the person in sustained fear. Criminal Threats may be charged as a misdemeanor or a felony. As a felony,
Washington law
Washington State law defines domestic violence offenses as virtually any criminal act committed by one "family or household member" against another. Domestic violence misdemeanor offenses include: assault, property destruction, harassment and telephone harassment, intimidation with a weapon, reckless endangerment and violation of no contact or domestic violence protection orders. Felony domestic violence offenses, such as a No Contact Order violation involving an assault, a third violation of a No Contact Order, assault with a deadly weapon, or even murder, are heard in Superior Court. A "family or household member" includes persons who are now or have been married or resided together, who have been or are presently in a dating relationship so long as both parties are at least sixteen years of age, and persons who have a child in common. In addition, parent-child and step-parent, step-child relationships, grandparent-grandchild (including step-grandparents) and siblings come within the definition of a "family or household" relationship.
The law requires a police officer responding to an incident of domestic violence to make an arrest if the officer has probable cause to believe that a domestic violence assault or other serious domestic violence offense was committed within the previous four hours. If the officer determines that family or household members have assaulted each other, the officer will arrest only the person he or she believes to be the primary aggressor. State law also requires mandatory arrest for violations of No Contact Orders and Civil Protection Orders.
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