E-Newsletter Edition: June 27, 2007
Always note that state law may be more restrictive on police power than the U.S. Constitution.
QUESTION:
During the execution of a search to obtain DNA and fingerprints from a suspect a officer contacts the adult suspect on the road not far from his residence and arranges to have the DNA and fingerprints done at the suspects house. When the officer arrives at the house with the suspect the suspect, goes in and shuts the door in the face of the officer. The officer opens the door and obtains the DNA and fingerprints. The Parents later complain that the officer did not have permission to enter the residence, even though the suspect resides with his parents. The officer stated that he entered because he had a search warrant and felt that the suspect would flee. Did the officer have the right to enter the residence after the suspect closed the door?
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ANSWER:
I believe the entry into the suspect’s residence to execute the search warrant was appropriate. Although case law on this topic is minimal, there are a few general legal principals that apply. First, a search warrant for a DNA sample from a person carries with it the right to seize the person in order to accomplish the objective of the search warrant. Similarly, an arrest warrant carries the right to seize a person. Under an arrest warrant, officers are authorized to enter the residence of the subject of the arrest warrant without a search warrant provided they have reason to believe the subject is home. Payton v. New York, 445 U.S. 573 (1980). As such, a search warrant to collect a DNA specimen should also carry with it the right to enter the subject residence if there is reason to believe the suspect is home.
Second, the question mentions the fact that the officer was with the suspect at the house and the suspect then went into the house and shut the door. If the facts available to the officer provided a reasonable belief that the subject could escape (i.e.: one officer present and nobody covering the rear of the house), then this would seem a valid exigent circumstance also justifying entry.
