Anthony Bandiero, Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training

A roadside chat reviewing a video a viewer sent in. Officers answer a loud-music call at an apartment complex, the occupant turns the music down but will not give his name, and the officers reach into the apartment and pull him out. There is no backstory beyond what the video shows, so this is feedback on what can be seen.

Let’s talk about a video that somebody sent me and they said, “Hey, you know, is this legal? What do you think about this?” I have some opinions on it.

I don’t have the backstory here. So I’m only going to give you my feedback based on what I see. That’s all I can do, right? But from what I know about the case, it’s a loud party. It’s a loud music complaint.

You can actually hear the music blasting as the cops arrive at this apartment complex. They knock on the door. A male and a female answer the door. They kind of go back and forth. He’s talking about, you know, maybe I like my music this loud, right? It doesn’t really make the cops probably too happy that he’s not really acknowledging how inconsiderate this is for his fellow neighbors. Regardless, they’re going to get into kind of a verbal pissing match, and then the officer is going to ultimately make entry in order to arrest him.

Can police pound on the door for a loud music complaint?

So let’s talk about, just from my wheelhouse, right, the search and seizure issues there.

So we have a call for service. Loud music. Clearly, when the officers arrive, the music is incredibly loud. I guess he has a studio in there. And so there is some kind of ongoing nuisance. That’s why I have zero issue with pounding on the door. That may actually be part of the knock and talk too, just because you got to, you know, reasonably get their attention. But regardless, nobody’s going to argue that that wasn’t appropriate. The officers have the authority all day to pound on that door, get their attention, have them answer.

When they did answer, they turned down the music. Right. So to me it looks like we go back to regular knock and talk rules, which is that implied license to have a conversation with somebody at their door.

Where does the home begin under the Fourth Amendment?

And so now where does the home begin and where does open fields start? Right? So where’s that separation point?

Well, this is called the threshold. The threshold comes from a case called US versus Santana, where the US Supreme Court essentially said the door frame. This was kind of clarified a little bit later in later cases, but the door frame is where the dividing line is from the home to the outside of the home. And what’s outside of the home could be curtilage, so there could be issues there. Or it could be an open field, like a common hallway, which is what we see here.

So the point is that in Santana, she was a drug dealer and she was selling drugs from her door frame, again, like the threshold. She had sidewalk in front of her house, and they said, “Hey, you’re under arrest.” She pretty much runs into the house. They chase her. They call it hot pursuit, and she’s like, “Well, it’s not hot pursuit, because it did not start from a public place,” right? And so that would be a good argument. But the US Supreme Court said, “Well, that’s a dividing line. You were actually in that particular place, which is between the house and the outside. So when they said you’re under arrest and then you ran into your house, legally that hot pursuit started from a public place.” Again, there were no curtilage issues involved in Santana. So that’s not going to be a point here.

Can police reach into a doorway to pull someone out?

Now, when they put hands on this person, right, on the man, when they put hands on him, was he inside the house, the apartment, or outside the apartment? And the answer: he was inside. Okay. They reached in and grabbed him.

Now, they had their reasons. He’s not being compliant. He’s not giving his name. He’s kind of being a smartass with the whole “I like my music that loud,” and you know, you’re kind of disrupting your neighbors. So they’re already off to a bad start here. But at the end of the day, I call this body snatching. If we’re going to reach into a residence and try to grab somebody out, what would give us the authority to do that?

Well, we teach an acronym here at Blue to Gold. It’s called CREW. And CREW means that every time you have a search or seizure, you have to have some CREW.

One, you can have consent. Well, clearly this is not going to be a consent case. Consent is like when you’re searching cars and you’re searching people and houses. This is not consent. He clearly does not want to be detained by the police.

The next thing is a recognized exception. But remember that every entry into a home that’s not based on consent has to be based on some form of urgency, exigency. Do you see that here? Do you see anything that is a legitimate, objectively reasonable exigency? Do you see any destruction of evidence? Do you see any people in danger? Do you see any escape risk? What are we going to articulate here? Right. I don’t see it. I mean, what, he’s going to put the music back up?

Finally, if you don’t have a recognized exception, the W in CREW is warrant.

Does qualified immunity decide whether the entry was lawful?

So I’m not saying these cops did the wrong thing. I don’t know the whole story, okay? I don’t know what they’re going to articulate. I’m just telling you what I see here. And I’m not talking about qualified immunity. That’s not what I’m really after. I’m after, hey, did the cops do the right thing ab initio, right from the beginning.

Okay. Let’s start throwing some Latin words out there, right? I don’t want a post hoc justification and qualified immunity and so forth. I want ab initio. I want the cops to do the right thing from the very beginning.

And I will tell you, I got my concerns. I got my concerns. I know human performance. I know that this is a hard one, to allow this guy to close the door on you. But at the end of the day, he is in the most protected area under the Fourth Amendment. And there is no more ongoing nuisance since he turned down the music.

Do you need an arrest warrant for a noise violation inside the home?

And you’re like, “Well, I don’t know who he is. How am I going to get a warrant?” Well, you describe him the best way you can.

“Anthony, are you saying that we have to get an arrest warrant for this guy? An arrest warrant for playing his music?” I think so. I think so. Again, I’m trying to think about, if we went to the US Supreme Court, what are they going to say? Based on all these cases that they have decided, I just can’t see it.

I mean, we have a guy in Lange versus California who is bumping music, doesn’t pull over for CHP, pulls into his garage, shuts the door, and the Supreme Court said that may have been allowed. They didn’t really analyze it properly, so it had to be kicked back to the lower court. But the cop called it hot pursuit, and the US Supreme Court said that’s not necessarily hot pursuit, because you need exigency. So driving into the garage seems like a lot more serious. It is serious. I mean, the guy’s in a motor vehicle. He’s not stopping. Seems a little more serious than this guy bumping his music and being a little sarcastic with his answers.

So I just want you to think about it. This is a tough one. This is one of those ones where it’s a very tough situation to be in, and you got to be very, very mature, which these cops seem, you know, overall mature. But you got to be very mature and you got to be able to recognize when you’ve been legally beat.

What does “legally beat” mean for officers?

That’s what we talk about here at Blue to Gold. Recognize when you’ve been legally beat, when the suspect happens to have the cards in their favor and they are able to trump, to supersede, what your authority is. Right? You may not have the authority to enter that home.

Again, we don’t know. We’re going to have to see the facts as they play out, but it’s something to consider. In this case, I’d be concerned. The best practice would have been to let them close the door.

You can disagree with me all you want, and please, but tell me why. If you disagree, tell me why. And also give me a case that says that people can’t close the door during a noise complaint when the music has already been shut off. I would love to see that case. I have not seen it in over 20 years of legal research, but if it does exist out there, I would like to know what it is.

Does a protective order let officers cross the threshold?

I will tell you there is an 11th Circuit case dealing with an issue where an officer had a mandatory arrest, a TPO violation, a temporary protective order. The suspect was at his parents’ house. That’s where he’s living now. But he went to the marital home, he violated the protective order. The officer essentially crossed the threshold to pull him out to arrest him for that mandatory-arrest TPO violation, and the court said that was a clear violation of the Fourth Amendment. That TPO did not give the officer the authority to enter his home to pull him out.

And that seems like a way more serious case than we’re dealing with here right now. If he was at the marital home, or if there was exigency, change the facts, change the answer. But I’m just telling you, I don’t see it.

The short version

  • The officers have the authority all day to pound on that door, get their attention, have them answer.
  • When they answered, they turned down the music. So we go back to regular knock and talk rules.
  • The door frame is where the dividing line is from the home to the outside of the home. He was inside. They reached in and grabbed him.
  • Every entry into a home that’s not based on consent has to be based on some form of exigency. I don’t see it.
  • He is in the most protected area under the Fourth Amendment, and there is no more ongoing nuisance since he turned down the music.
  • The best practice would have been to let them close the door. Recognize when you’ve been legally beat.

Even if you disagree, okay, that’s fine. We’re all friends, but talk about it. Until next time, my friends, you stay safe.

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This article is a lightly edited transcript of a Blue to Gold roadside chat and is for training purposes only. It is not legal advice. Check your own state law and your prosecutor before acting. Source video: EP#860