By John Wiehn, attorney and senior legal instructor for Blue to Gold Law Enforcement Training.
A question from an officer in Arizona, and one John has received before. Arizona’s domestic violence statute tells officers they shall conduct a child welfare check when a minor is present. The question is whether that word does any work at the threshold of a home when there is no exigency.
What does Arizona’s DV statute actually require?
Hey guys, this is John Wiehn, attorney and senior legal instructor with Blue to Gold Law Enforcement Training, coming to you today with another roadside chat.
Today’s question comes from an officer in Arizona, and this is a question I have received before. The question deals with A.R.S. 13-3601 subsection N. A.R.S. 13-3601 is Arizona’s DV statute, and subsection N says when a peace officer responds to a call alleging that domestic violence has been or may be committed, the officer shall determine if a minor is present. If a minor is present, the police officer shall conduct a child welfare check to determine if the child is safe and if the child might be a victim of domestic violence or child abuse.
And so the question is, if we respond to a call for service regarding DV, and as a result of our investigation we determine that a child is present in the house, but there is no articulable exigency to believe that a child is hurt or that there is an emergency occurring inside the house, does A.R.S. 13-3601 subsection N nevertheless give us the authority to make a warrantless non-consensual entry into the home to check on that child?
Does the word “shall” take away the officer’s discretion?
And this is a good question, because the statute does say shall determine if a minor is present. If a minor is present, the police officer shall conduct a child welfare check.
Shall. Just like A.R.S. 28-3511, that says if you determine a driver is revoked, the peace officer shall tow the vehicle and impound it. Right? It takes away the officer’s discretion. This is not may. This is not should. This is shall. You shall do this.
The problem is that despite the fact that the state statute says you shall check on that child’s welfare, that state statute does not trump the Fourth Amendment. And so if you are in that situation where there is no articulable exigency, if you have no basis to believe that that child is hurt or there is an ongoing emergency inside the house, then A.R.S. 13-3601 subsection N does not give you the authority to go into the house, because that state statute does not trump Fourth Amendment protections.
Why is Payton versus New York the case on point?
Payton versus New York is your case on point. And this is a United States Supreme Court decision.
In this case, it dealt with a state statute, a New York state statute, which allowed officers to make a warrantless non-consensual entry into the home where they had probable cause to arrest a subject for a felony.
And in Payton, officers had probable cause for Payton for several armed robberies, during which several shootings occurred. And so they had PC for a felony. They went to Payton’s apartment. They knocked on the door. They heard a radio playing inside. And despite the fact they didn’t have a warrant, they forced entry into the home. They conducted a sweep throughout the home looking for Payton. They did not find him, but they did find several live rounds and shell casings on the dining room table in plain view that matched those recovered at the scenes of several of his crimes. They used those against him at trial.
And Payton argued, this is a violation of my constitutional rights. And the lower court disagreed. They said, hey, sorry. New York state law says that officers can make a warrantless non-consensual entry into the home if they have PC for a felony. The governmental or societal interest in preventing felony offenses outweighs your personal interest in the sanctity of your home.
Can a legislature legislate away a constitutional right?
Payton appealed to the United States Supreme Court, and the United States Supreme Court disagreed. They said you cannot legislate away a constitutionally protected right, especially when we’re talking about the protection of the home, the place that has the highest level of Fourth Amendment protection. The highest level of Fourth Amendment protection.
The United States Supreme Court has said the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.
And so anytime you are making a warrantless non-consensual entry into the home, understand you are going to have to convince the court that whatever the governmental interest is in what you are doing, it outweighs the chief evil which the wording of the Fourth Amendment is designed to protect.
So when can you actually go in on a DV call?
So, do you have it? Do you not?
If you are responding to a DV situation and there is an unresolved emergency, you are concerned that there is something going on inside that house, and you can specifically articulate why it is objectively reasonable to believe that, well then yes, make that warrantless non-consensual entry into the home. Check on everybody inside. Make sure everybody is safe. Absolutely.
But understand, A.R.S. 13-3601 subsection N does not give you additional license to do anything absent exigency.
Should you make reference to it? Absolutely. Arizona is definitely an anti-DV state. There are some very powerful state laws in Arizona to combat domestic violence. And so there’s going to be a high degree of deference given to law enforcement officers, at least at the state level.
But understand, you must articulate exigency, urgency, or emergency if you’re going to make a warrantless non-consensual entry into the home.
I hope this helps. If you guys enjoyed this, please subscribe to our social media, subscribe to our YouTube channel, check out Blue to Gold for any upcoming courses in your area. If we are not coming to your area, consider hosting Blue to Gold Law Enforcement Training at your agency. We can train your entire agency to make sure you are all on the same page and to make sure that you get it right every time. Reduce liability, set your officers up for success, and better serve the communities you are sworn to protect.
Until next time, be safe out there and make good case law.
The short version
- Arizona’s DV statute says the officer shall determine if a minor is present, and shall conduct a child welfare check.
- Shall takes away the officer’s discretion. This is not may. This is not should.
- That state statute does not trump the Fourth Amendment.
- With no articulable exigency, subsection N does not give you the authority to go into the house.
- Payton versus New York is your case on point. New York had a statute allowing warrantless entry on PC for a felony, and the Supreme Court struck it down.
- You cannot legislate away a constitutionally protected right, especially the protection of the home.
- The physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.
- If there is an unresolved emergency and you can specifically articulate why it is objectively reasonable to believe that, go in and make sure everybody is safe.
- Should you reference the statute? Absolutely. It just does not give you additional license absent exigency.
- You must articulate exigency, urgency, or emergency.
Related from Blue to Gold
- Can Police Enter a Home After a 911 Hangup?
- Can Police Re-Enter a Home to Get Clothes for a Child in Protective Custody?
- Case v. Montana: The Legal Standard for Warrantless Home Entry to Render Emergency Aid
This article is an edited transcript of Roadside Chat EP#923. 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.
