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

A roadside chat on a question that comes up constantly in domestic calls: an officer sees a person inside the victim’s home and knows that person is barred from being there by a protective order. Can the officer walk in and take them into custody? Anthony lays out the three doctrines that decide it.

Can you arrest a suspect inside a home if they are violating a TPO or a protective order?

A TPO, a temporary restraining order, a protective order, an EPO, an emergency protective order, whatever you call these, these are orders by a court that basically tell another person: stay away from a house, stay away from a person, stay away from this business, etc.

So imagine that an officer sees a person inside, let’s say, the victim’s home. And the officer knows that that person is not permitted to be inside the home. Obviously the person is violating the restraining order. Can the officer enter the home to take that person into custody?

Well, I’m going to share with you a few doctrines to keep in mind if you come upon this situation.

Does a protective order give police authority to enter a home?

The first doctrine is that that protective order is not a search warrant. That protective order, most likely 99.9 percent of the time, did not authorize police to enter anybody’s home. It’s simply telling a person what they can and cannot do.

So just remember that. If you are going to do this, don’t run back to the courthouse and say, your honor, you told me I can do it. But Anthony, it says on the protective order a violation shall result in arrest and so forth. Well, okay. That doesn’t answer the question about how you get into homes, though.

Can the victim consent to police entering to make the arrest?

The second doctrine is, okay, if the protective order does not give you the authority to enter homes, how else can you get in the home? The second thing is consent.

Let’s say that the victim here allows you to enter the home under consent, and the consent is valid. Can you now take the person into custody? Absolutely. Because what’s going on here is that, no matter what, at the end of the day, the suspect who has been served with that protective order has no lawful right to be in that home. He has been judicially declared to not have standing, to not have a privacy interest at this particular time in that home.

So I don’t care if that’s his normal residence, if all his stuff is there, if he’s the owner of the house. It’s just the way it is. If a judge has signed a piece of paper telling him or her that they cannot be in that house during this time frame, they have to leave the home. But we don’t want to violate anybody else’s rights that are in the home.

Is a protective order violation exigency to enter without consent?

If you don’t have consent from the victim, then the last thing that can get you into that house is good old-fashioned exigency, based on what you know at the time. Based on how the victim is, what the victim is saying, how he or she is acting. Based on what you know about the perpetrator, their violent tendencies. What the TPO or this protective order has stated. Maybe any weapons involved, kids in the home, etc., etc.

Do you have reason to believe that if you do not enter the home right now and get this guy, or girl, into custody, that somebody may get injured? If the answer is yes, there you go. You have exigency to go arrest him, and that is going to fall under, generally speaking, the emergency aid exception.

What if you only have the “shall arrest” language and nothing more?

But if you don’t have any exigency, and you’re simply doing it because it’s a “shall arrest,” I personally would not do it.

Because these victims do it all the time, by the way. They run to the courthouse to get the protective order, then they get back with the ex, and now the ex is back over there. The police happen to make contact, they see the ex violating the protective order, and the cops want to make the arrest. Well, if you don’t have anything more than that, I would leave and come back with a search warrant or an arrest warrant.

But what if the victim gets hurt while you wait for a warrant?

But Anthony, what if in the meantime the victim gets hurt or killed? I understand the compelling interest here. I understand those arguments. But here’s the problem. When you have a free society, when you have this balancing test of crime prevention and freedom, there’s always going to be victims.

Look at the Second Amendment. Does the Second Amendment have unfortunate consequences? Do bad guys use firearms for bad reasons? The answer is yes. But as a solution, to strip everybody of their Second Amendment rights? The answer would be no, because we have a constitutional right for protection.

The point is, it’s the same with the Fourth Amendment. The Fourth Amendment is restrictive. It tells you to do things like this. It says things like, hey, if you don’t have exigency, consent, or a warrant, then you are going to have to walk away. And sometimes, in extreme cases, but it does happen, the person gets hurt in the meantime. And you didn’t know it. It wasn’t something that you saw. But that’s the consequence of living in a free society. It’s unfortunate. But the alternative is to have a dictatorship, where the government says you don’t need permission from a judge, you go and do what you got to do to go into homes. That’s not the society we want to live in either.

So just keep this in mind. Those are your three ways into a home: consent, exigency, or an actual warrant. The protective order in and of itself, in my opinion, does not give the authority to enter homes. Read it. It does not give you authority to enter homes, unless it does. And then if it does, then you do what you got to do.

The short version

  • That protective order is not a search warrant. Most likely 99.9 percent of the time it did not authorize police to enter anybody’s home.
  • If the victim allows you to enter under valid consent, can you now take the person into custody? Absolutely. The suspect has no lawful right to be in that home.
  • If you don’t have consent, the last thing that can get you into that house is good old-fashioned exigency, generally under the emergency aid exception.
  • If you don’t have any exigency and you’re simply doing it because it’s a “shall arrest,” I personally would not do it. I would leave and come back with a search warrant or an arrest warrant.
  • Those are your three ways into a home: consent, exigency, or an actual warrant.

I hope this video has helped you get it right every single time. These are at least good conversation starters. I’ll see you next time.

Related from Blue to Gold

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. #344