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Domestic Violence and the Home in Washington State

Violence in the Home - Ray Rice - Seattle Criminal Lawyer Blog

The law has recognized that “every man’s home is his castle.” This does not mean that a homeowner can do whatever he or she pleases or engage in abuse. For example, Ray Rice of the Baltimore Ravens has recently seen that he is not above the law. But it is true that the home is afforded special protections. That is especially true in Washington state.


Warrantless searches and seizures are per se unreasonable under the Fourth Amendment.

Article I, section 7 of the Washington state constitution goes beyond this. It creates an “almost absolute bar to warrantless arrests, searches, and seizures.” And the home enjoys special protection. The closer officers come to intrusion into a dwelling, the greater the constitutional protection. State v. Schultz, 170 Wash.2d 746, 753, 248 P.3d 484 (2011) (citing State v. Ferrier, 136 Wash.2d 103, 112, 960 P.2d 927 (1998) (quoting State v. Young, 123 Wash.2d 173, 185, 867 P.2d 593 (1994))).

In the absence of “exigent circumstances”, police may not make a warrantless, non-consensual entry into a home even when making a felony arrest. Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371 (1980). Exigent circumstances include the “emergency aid exception” to the warrant requirement. In order for the government to justify a limited invasion, it must provide each of the following elements:

  1.  The police officer subjectively believed that someone likely needed assistance for health or safety concerns;
  2.  A reasonable person in the same situation would similarly believe that there was need for assistance;
  3.  There was a reasonable basis to associate the need for assistance with the place being searched;
  4.  There is an imminent threat of substantial injury to persons or property;
  5.  State agents must believe a specific person or persons or property are in need of immediate help for health or safety reasons
  6.  The claimed emergency is not a mere pretext for an evidentiary search.

Schultz, 170 Wash.2d at 754. The Washington Supreme Court has made clear that “failure to meet any factor [above] is fatal to the lawfulness of the State’s exercise of authority.” Id. at 760 n. 5. That is a heavy burden. Oftentimes it is impossible for the government to prove each of these elements.

In State v. Schultz, Sequim police responded to an apartment complex after a resident reported a male and female yelling. Upon arrival, Officers Malone and Hill overhead a man and woman talking with raised voices. They specifically recall overhearing the man say he wanted to be left alone and needed his space.

Officer Malone knocked and Schultz answered; Schultz appeared agitated and flustered. Officer Malone asked Schultz where the male occupant of the apartment was. Schultz denied that anyone else where there. Officer Malone told Schultz she heard a male voice in the apartment. Schultz called for Sam Robertson who emerged from a nearby bedroom.

The state claimed Schultz stepped back, opened the door wider, and Officer Malone followed Schultz inside. Schultz testified she stepped aside because the officers were entering. Regardless, neither officer requested permission to enter, neither Schultz or Robertson were told they could refuse a search, and neither Schultz or Robertson asked the officers to leave or prevented their entry. Schultz, 170 Wash.2d at 750-751. Eventually, the officers discovered meth and drug paraphernalia. Id. at 752.

The Washington Supreme Court held that the warrantless entry was unlawful. Id. at 762, 248 P.3d at 491. The court reasoned:

The facts most favorable to the State are as follows. The police received a phone call from a resident of an apartment complex about a yelling man and woman. The responding officers stood outside and overheard a man and woman talking loudly. The officers heard a man say that he wanted to be left alone and needed his space. The officers knocked on the door. Schultz opened it, appearing agitated and flustered. Officer Malone asked Schultz about the male occupant of the apartment. Schultz told her no one was there, but when confronted with the fact the officers heard voices, summoned Robertson from a nearby bedroom. When Robertson appeared, the officers entered Schultz’s apartment based upon her acquiescence only. At the moment the officers crossed the threshold to Schultz’s apartment, they did not have enough facts to justify an entry based upon the emergency aid exception to the warrant requirement.

Id. at 760. The Schultz court acknowledged courts may consider that an entry is made into a home in the context of a domestic violence threat in considering the reasonableness of officer’s actions under the emergency aid exception. Id. at 761. But the court was careful to point out “[d]omestic violence protection must also, of course, be consistent with the protection the state constitution has secured for the sanctity and privacy of the home.” Id. at 756 (citing WASH. CONST. art. I, §7; Ferrier, 136 Wash.2d at 112, 960 P.2d 927 (citing Young, 123 Wash.2d at 185, 867 P.2d 593)). The court concluded:

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.

Id. at 761, 248 P.3d at 491.

The law states that police MUST get a warrant from a neutral and detached magistrate (i.e. a judge). This is critical as the judiciary acts as a check on zealous police officers engaged in the often competitive enterprise of ferreting out crime. Unfortunately, law enforcement routinely ignore this rule and enter private dwellings without a warrant, consent, or exigent circumstances.

If the police only have evidence of yelling, shouting, swearing and arguing before entering the home THAT IS NOT ENOUGH! Yelling, shouting, swearing arguing is exactly the type of things that the people want kept private. The home is exactly the type of private place where people should be able to keep private family matters and arguments private and free from government intrusion. Article I, section 7 makes this a right.

This is right that law enforcement all too often ignore.

The attorneys at Platt & Buescher whose practice emphasizes domestic violence have succesfully argued motions to suppress evidence due to violation of article I, section 7 and the warrant requirement. Contact Platt & Buescher today at (360) 678-6777 to discuss the domestic violence accusations you are facing.