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Hey guys, it's Anthony Bandiero Here attorney and senior legal instructor with blue to gold along for some training, bringing the roadside chat from the studio. Alright, we got it. We got a doozy here. So my, the question is going to be, can officers conduct a surround and call out on a third party? third party's home. Okay. So when I say third parties home, what I'm talking about here is your surrounding a third party, right, someone who's not directly connected with the case when you are trying to get in custody another person, right, you have a warrant for the person, and they're at a third party's home, you have probable cause for the person, and they're at a third party's home. So that's how I like the idea here, I'll go into more detail about what I mean and so forth. But let me give you this scenario. This is from an officer in in from Indiana. All right. So they conduct surveillance of for wanted suspects, they have an arrest warrant for that person. They will often see them at a third party's home, a friend's house cousin's girlfriends, etc. They'll sometimes see them come out and go back into the home, right? They're grabbing the paper in their slippers. Well, maybe not quite that right. And so they know for sure that the guys there. So the next move is to surround the home and call the person out. If the person refuses to come out, they'll go get the warrant, and enter the home for that. Okay, so the COP is wondering, hey, does this practice? Is this practice flawed? Or is it constitutionally firm? Okay. I think it's flawed. I think we got I think we got a problem on our hands, my friends. And I have some concerns. Now I tried to look up, you know, when I answered these questions, just so you know, I'm a practicing attorney, I got clients that, you know, that need me that pay me that, you know, call me and, you know, I got to focus the vast majority of my of my energy and my time for my clients in my training and so forth. But I do try to find some cases, you know, when I when I do these, these roadside chats, and I found one that supports my position, but I've not found one that really is like on onpoint. So we're kind of making some case law here, but let's walk through it. Okay. So first of all, we know that if police have an arrest warrants, they can serve that arrest warrant at the person's domicile. That rule came from Payton, New York, Payton versus New York, okay. So if police have a warrant, they can serve it at that person's domicile. If the police have a warrant, and the person is at a third person's house, cousin, friend, etc, then they need either consent by the homeowner to come in exigency, or they need a search warrant to go into the third party song. And the reason why this is a supreme court here, right? The Supreme Court said, You know what, you may not be violating the suspects rights, the guy that you arrested the one with the warrant, you know, because he may not have a privacy interests in home, but you are certainly violating the third party's rights, he has a right to keep police out of his home. You know, just because a friend is over with an arrest warrant. That makes sense. Okay. Now, here, we have a little bit different set of facts because we're not entering the home without a warrant. We're just surrounding it. We're on curtilage. But the vast majority of courts have held that when police surround a home surrounding call out, they have seized a home under the Fourth Amendment, and that is certainly the right answer. I mean, imagine you're at your house watching a football game and the police around your home and tell and command you to exit your home. Do you feel like the possession of your home is diminished? Do you feel like you can't even leave to go to the grocery store. So the use of your home is absolutely affected by being surrounded and called out by police. So the home is certainly seized. They are there. You know, they are infringing, I guess on the use of your home. Alright.
That's what I think is going on here. Right. We know certainly that going into the home is a violation but being on a curtilage and surrounding is to me is the same. It's the same consequence. We also know from a case called Florida vs. Jar Dean's, in some other cases called done d u n that curls around the homeless tree like the home itself, right? So if you're on the college, in some ways, you're almost like in their kitchen. Right? That's not exactly true on every scenario, but that's often true. And that's what's that's what's going on here. So, at the end of the day, I, I don't see the facts here that justify the seizure of the home. You have an arrest warrant the guys at a third party home, and there is no exigency. You're also surveilling the home so that by definition, they probably don't see you. So they don't know you're on to them. So there's no safety or, or escape risk. Now, if we want to throw in another little wrinkle here, if the cop was surveilling the home and saw the suspect exit the home, and the cop get out of the car and said, Hey, Johnny, stop right there, you're under arrest. And then he flees into the home? Well, we got we got hot pursuit, because that's that that role falls under Santana, US versus Santana. If the person is outside their home, and you start the Hot Pursuit outside the home, and they flee back into the home, that's hot pursuit, but a lot of cops have probably not going to go into the home under those circumstances, just purely for safety reasons. But but either way, that would be lawful in the hopper suit. What else is that it? I think that is it. Okay, so takeaways. If a person if you have probable cause or an arrest warrant for a person, that third party's home, and you surround it, and call them and call out the wanted person, I believe I know that you're implicating the third party's rights. You know, he has a say that he can sue you. And if you don't have exigency, I think you're going to lose. So therefore you got to get the warrant before or engage in the chase before he enters the home. Alright, just seeing him go into the home is not hot pursuit. Alright guys, does it help? You know what, maybe that's not the advice you want to hear? You know, for the person asking the question, because it seems like they're doing this tactic, but I am here for illegal survival. If it was me, I would pull back and reassess the constitutionality of what you're doing and maybe the prosecutors and so forth or go with it. Maybe they got some case law that I haven't seen before, but Anthony is, is not comfortable with it. All right, so hopefully helps until next time, my friends stay safe.
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