Page 86 - Police Officer's Guide 2013

SEARCH & SEIZURE, EMERGENCY ENTRANCE, EVIDENCE ADMISSIBILITY.

Shortly after midnight, deputies responded to a residential disturbance call. There were reports of yelling,
screaming, and the sounds of objects being thrown in the apartment. When knocking at the door, officers heard
sounds of a violent disturbance and people yelling as if intoxicated. The officers made entry based upon initial
consent and upon the emergency doctrine. Under the emergency doctrine, an officer may enter a residence if
he has an immediate, reasonable belief that he must act to protect or preserve life or avoid serious injury. If the
emergency doctrine applies, an officer may seize any evidence that is in the plain view during the course of his
legitimate emergency activities.

While inside, officers could not confirm that any assault had taken place and the boyfriend was not
present only Ms. Miller and her children. Once inside, the occupant (Ms. Miller) repeatedly asked the officers
to leave; however, they remained to await results of warrant checks (according to the facts determined by the
court). During this time, officers recognized drug paraphernalia in the apartment and conducted a search which
revealed drugs resulting in Ms. Miller s being charged for possession. The record reflects that, when he first
arrived at appellants door, Deputy Yarborough was approaching the situation as a domestic assault, already
seemingly having decided, before any contact with appellant, that the third-party report of yelling, screaming,
and the sounds of objects being thrown in appellants apartment were the sounds of domestic assault, a not
unreasonable conclusion. But somewhat contradictorily, he also appears to have assumed that the perpetrator had
left and that appellant might think that the perpetrator had returned.

His assumptions colored his behavior throughout his interactions with Miller who repeatedly said that she
was upset because her boyfriend was cheating on her, but there is nothing in the record that reveals how or when
she found that outin person from him or by the grapevine, e-mail, or telephone. She also told the officers that
the boyfriend was not there and that she did not know where he was. The officers clearly believed her as to the
boyfriends absence, as they made no attempt to search the apartment for him or anyone else. Yet, long after it
had become clear that no domestic violence had occurred that evening, the responding officer continued to treat
the situation as a domestic assault, pressing appellant for her boyfriends name and whereabouts, even after
several denials of physical contact or knowledge of the boyfriends location and with no evidence of physical
harm.

While officers are clearly entitled to complete their investigation of a situation that may involve domestic
violence, and the record here supports a conclusion that such an investigation was appropriate, the record does
not support a conclusion that the noises that the officers heard before making contact with appellant, the
disarray in her apartment, or her intoxication in her own home justified the officers continuing presence once
their investigation of possible domestic violence had been completed.

The recordings reveal, however, that the officers recognized upon entry that appellant was the only adult
present. They accepted her assurances that the only other persons in the apartment were her babies and made
no attempt to search the apartment for her boyfriend or her children, thereby making clear that they perceived no
emergency that would require remaining in appellants apartment in order to protect or preserve life or avoid
serious injury, and Deputy Mitchell testified that no other emergency situation, such as destruction of evidence,
existed at any of the four times at which appellant told the officers to leave her home. Based on the record before
us, the court of appeals erred when it found that the officers presence was justified under the emergency doctrine.

The court sustained appellants (Miller) first ground for appeal and consider whether the officers
continued presence is justified under another theory of law.

It is undisputed that appellant consented to the initial entry by the officers, but it is also undisputed that
such consent may be limited or revoked. If an officer is invited or permitted to come into a house for a particular

A Peace Officer’s Guide to Texas Law 79 2013 Edition