By Anthony Bandiero, attorney and senior legal instructor for Blue to Gold Law Enforcement Training.
A question from a long time subscriber, an officer in Utah. A caller says her friend has several medical issues, did not show for work, and is not answering. No car in the driveway, no answer at the door, nothing visible through the windows. Is that exigency to force entry?
Does a person with medical conditions who does not answer the door create exigency?
Hey guys, it’s Anthony Bandiero here, attorney and senior legal instructor for Blue to Gold Law Enforcement Training, bringing you the roadside chat.
This question comes from an officer in Utah. Long time subscriber, this officer provides a lot of feedback on the comments and so forth. But he had a question. We have the Caniglia versus Strom case about community caretaking, that it doesn’t apply to homes, and you need exigency in order to enter a home without a warrant, without consent and so forth.
I guess the best way to phrase this question is, does a person with medical conditions who does not answer the door qualify as exigency? Okay, that’s the best way I can kind of phrase it.
So the officer says, look, I want to clarify some things, because I did a video on Caniglia versus Strom. I talked about that case. Just to remind you, that case is where officers entered a home to seize a person’s firearms after he went to go do a mental evaluation, as best practice, community caretaking, just in case he comes home and wants to kill himself or hurt somebody else. And in that case the Supreme Court said that you would need exigency. Since the person was not even on scene, there was no exigency to go into the person’s home and seize the firearms. That is essentially the case in a nutshell.
What are the actual facts of this welfare check?
So the officer says he doesn’t know what the correct response is and wants to follow up. Say we get a call of a welfare check in which the caller says that their friend has several medical issues and they did not show up for work. Now the caller has called several times, no response. So, medical conditions, no show to work, no answer.
They get to the house. Now they try to call the friend to get some more information and so forth, have you gotten a hold of them yet and so forth. They also do not see the friend. They don’t see his car at the house, but there’s a garage and the car could be in the garage. So I’m assuming there’s no windows to the garage where you can see that.
Now we go around the house and they’re looking for some signs of distress. Maybe look through a window and the person’s on the floor and so forth. But they don’t see any of that. Maybe they can’t see into the house effectively, I don’t know, it doesn’t say, but I’m assuming that’s what they’re doing. They’re pounding on the door, there’s no answer.
Now the question is, can we make a forced entry into the home to check on the person’s condition, because the person could be in there suffering from a medical illness or incident?
Is it okay to back out of a welfare check?
So the answer is maybe. I will tell you that the toughest questions I get are these, because I’m not on scene, and there may be some other things at play. But I just want to kind of give you, this is an excellent question, it’s a valid question, it needs to have some answer, it needs to have some guidance, otherwise cops need this stuff.
Now, these are very tough situations, and I just want to let you know that sometimes it is okay to back out. It is okay, even if it’s possible that the person could be dying inside. I just got to let you know that unless you have the right facts and you feel good about it, it’s okay to back out, even though there’s a potential that somebody could need your help.
You also have your legal liability. There is no constitutional obligation that you enter everybody’s home with the possibility that they could be injured and need your help. You need at least probable cause. You need like a fair probability that an emergency exists and the person needs your help.
So that’s why I’ll let you know that even though it sucks, sometimes cops will do this and they’ll back out, thinking that they don’t have enough facts to justify their actions to go into the home, and they find out later that the person died. You know what? That’s the cost of freedom. That’s the cost of keeping cops out of homes unless they can articulate actual exigency, here and now type stuff. It does happen, and that’s just the way it is.
Do these facts add up to exigency?
All right, do we have exigency? Do we have facts and circumstances that lead a reasonable person to believe that there’s somebody inside that home right now that needs or wants your help? And I’m going to let you know that based off of these facts, I think the answer is no. I think the answer is no for me.
That car issue, I would love if the car was there. That would definitely help. The car not being there hurts. But I know it can be in the garage, but still, I don’t see the garage. If there were windows in the garage I would try to look inside. I would like to get into that backyard.
But I’m looking for other things. The other thing I’m kind of missing here is, what are these medical conditions? Arthritis or heart condition? Does the person have a pacemaker and so forth? How old is this person? Maybe the older is more in your favor, that they could be suffering from more medical conditions and so forth.
I’d like to talk more about that friend. Hey, just to confirm, have you gotten a hold of that friend? Have they ever gone off the radar before like this? I would maybe call the employer. Have they ever been a no show? If they say things like, no, this person’s like clockwork, you can set your clock to this person, that’s going to help you. But I want more.
And with these generic facts, personally, me, I’m not going to make a forced entry into the person’s home unless I have some more facts that yes, this is legit.
What does a real exigency call look like?
I’ve been in this situation before, where the person was texting his sister and said that hey, I’m having problems breathing. And she’s like, go to the doctor, go to the hospital. And I think the sister was out of town so she couldn’t physically go there. And then basically the person went off the radar, and of course called us.
So we get to the house, we have this information, the sister still has not been able to contact the person, we go around the house, we’re trying to look inside, we’re looking in windows and this and that, and we couldn’t see inside because all the blinds were shut. We did end up making a forced entry, and the person, I guess had some Pepto or something, ended up going to the casino and gambling. And he came home to a broken door.
Did we make the right call? The answer is absolutely. In that case I think the answer is absolutely, because he’s saying something here and now, that hey look, I’m having some medical conditions, and then goes radio silent.
I wish I could give you more guidance. I wish this was more black and white. There’s a lot of things that you ask me and I say hey, absolutely, based off of current case law that’s golden. But here these cases have to be decided by you.
How do you write the report on a forced entry?
And all I can tell you is if you are going to make a forced entry, whether the person needs your help or whether the person was just sleeping and they get all pissed off that you broke their door, all I can tell you is that when you write your report, do an excellent job articulating.
Before that, I’m going to give you some advice I teach in my report writing class, and a lot of you cops probably do this anyway. Before you start writing that narrative, because this narrative is going to be important, and this is high stakes stuff here, if they come around and try to sue you, or somebody got hurt because they thought a prowler was in their home and they pick up their gun and then bad things can happen.
But either way, before you make this report, what I want you to do is take a notepad, it is better, or you can tap on a computer, that’s fine too, and list out all of the reasons that you believe that this person was in imminent need of your help. Imminent need for police assistance. All of them.
We saw the car in the garage. We pounded on the door for 10 minutes with no answer. We knocked on the back window, no answer. We knocked on a window believed likely to be the bedroom, constantly knocked, no answer. I mean, that’s a pretty heavy sleep when they’re not waking up. The employer said this is uncommon. The friend says that he has a serious medical condition. Et cetera, et cetera.
I want to hear it, I want to see all those things, and then write your narrative. Because if you start writing your narrative first, you may start leaving stuff out, and this is high stakes stuff.
The short version
- Community caretaking doesn’t apply to homes. You need exigency. That’s Caniglia versus Strom.
- The answer on these facts is maybe, and the toughest questions I get are these, because I’m not on scene.
- Sometimes it is okay to back out, even if it’s possible that the person could be dying inside.
- There is no constitutional obligation that you enter everybody’s home with the possibility that they could be injured.
- You need at least probable cause, a fair probability that an emergency exists and the person needs your help.
- On these generic facts I think the answer is no. The car not being there hurts.
- Ask more. What are the medical conditions? How old is the person? Have they ever gone off the radar before? Call the employer.
- The sister case was different, because he said here and now that he was having problems breathing, and then went radio silent.
- Before you write the narrative, take a notepad and list out every reason you believed the person was in imminent need of police assistance.
- If you start writing your narrative first, you may start leaving stuff out.
All right, that’s the best advice I can give you. Maybe it’s worthless, maybe it helps. I’m just trying to move the ball forward. If I have moved the ball forward, do me a favor, hit the like button, comment and subscribe, share these videos around with your friends.
Until next time, my friends, stay safe and keep up the great job.
Related from Blue to Gold
- When Can Police Force Entry on a Suicidal Subject Call?
- Can Police Enter a Home After a 911 Hangup?
- Entering a Home to Seize a Person For a Mental Evaluation
This article is an edited transcript of Roadside Chat Ep. #150. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
