Although law enforcement typically needs a warrant to enter a home, there is an exception if an occupant of the home consents to the entry. But what happens if police gain consent to enter, leave the home and re-enter it later?
On Thursday, the Colorado Court of Appeals decided for the first time that it is legal for an officer to re-enter without consent, as long as the entry and re-entry are closely timed and closely related, and the occupant does not rescind their consent.
But Ian Farrell, an associate professor of criminal law at the University of Denver, said the public still has the burden of knowing how and when to deny consent.
"I have problems with that state of the law," Farrell said, in that people contacted by police may not understand their right to say no, especially if it is a minor answering a knock at the door. "Often what people think is if they say no, they look guilty. I do presentations to primarily high schoolers, and that's what most of them think."
In reaching its decision, a three-judge appellate panel upheld the menacing and child abuse convictions of Adrienne Marie Stone. Stone was arrested after Arvada police responded in 2018 to a disturbance at her home. A child living in the house said Stone had made threats with a knife, and the child feared for her sibling’s safety.
Sgt. Betsy Westbrook, while speaking with the child in front of the house, noticed the front door open and close. Westbrook knocked on the door and Nicholas Maerz Jr. answered, identifying himself as the sibling. He invited Westbrook inside after she asked to speak with him.
Westbrook observed substantial clutter in the home, as well as the knife Stone used to make threats. Among the living conditions listed at the time of Stone’s arrest were multiple prescription bottles accessible to children and no smoke or carbon monoxide detectors. Westbrook took photos on her cell phone, then went to retrieve her camera from her vehicle.
However, just as Westbrook left the house, Stone arrived home and became upset at the situation. Westbrook re-entered the home, along with a school resource officer who had also arrived. The officers contacted child services, which later determined the children should be removed on account of the house’s unsuitable condition.
Stone attempted to suppress evidence of the knife and the house’s interior, claiming law enforcement conducted a warrantless search without probable cause and her consent. Jefferson County District Court Chief Judge Jeffrey R. Pilkington partially sided with Stone: he found the officers legally entered her home because Maerz had given his consent. But the subsequent entries of the child services caseworker, a code enforcement officer, and another police officer who took photographs of the home did violate the Fourth Amendment.
Pilkington consequently barred the photos and other evidence generated after Westbrook’s entry and re-entry.
On appeal, Stone argued Maerz had no ability to give consent for police to enter her home because he was a minor, and that Westbrook needed consent again when she re-entered the house.
In cases where police are investigating the resident of a home, it is possible for another occupant to consent to a search in the resident’s absence. Officers have to reasonably believe that the consenting person has authority over the dwelling — even if the person actually does not. Earlier this year, the Colorado Supreme Court upheld the search of a man's home under the belief that his girlfriend, who gave police consent, lived there (she did not).
If the resident is present to object to the search, however, that objection overrides the other occupant’s consent. The U.S. Supreme Court has acknowledged that police entry to protect against domestic violence is an exception, provided there is a belief of danger.
Judge Lino S. Lipinsky de Orlov, writing for the Court of Appeals panel, said Westbrook’s re-entry was legal because Maerz lived in the house and had authority to consent, and there was no evidence he ever rescinded that consent.
“Thus, for consent to encompass a subsequent re-entry, the entry and re-entry must be closely related in time and purpose,” Lipinsky wrote in the August 5 opinion.
Farrell said that consent searches in the legal context can align with everyday social norms.
"Suppose I invite you over to watch the Super Bowl. You get to the front door and my partner sees you and says, 'I don't want you in my house.' Would you feel comfortable going in the house?" he said. "The answer is probably no, and the court says no."
But Farrell clarified that had Stone explicitly objected to the police entry when she arrived home, that would have been a bar to the search. Most people, he said, do not realize that a specific declaration is required to trigger the Fourth Amendment's protections.
The attorney representing Stone, Scott Poland, interpreted the appellate panel's decision differently, believing even an objection by his client would not have prohibited Westbrook's re-entry.
"I think she should have gotten permission to renter," he said. "When you're talking about our constitutional rights, it needs to be very clear that authority to re-enter is given."
The appellate panel did note that Pilkington made a mistake by admitting as evidence the pictures Westbrook took on her cell phone of the home’s interior. Until the first day of the trial, the parties had understood that Westbrook only photographed the knife. Because prosecutors did not establish that Westbrook also had pictures of the interior until the last minute, it was a mistake to introduce those images, Lipinsky wrote.
But the mistake did not likely affect the jury’s verdict, the panel determined in upholding Stone’s convictions.
FOX31 reported in 2019 that city and county law enforcement had been contacted 65 times about Stone since 2016, and that Stone was allowed to keep custody of her seven youngest children following her convictions.
The case is People v. Stone.
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