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

Recorded at a conference in California where Anthony was speaking. The question comes from a California officer whose shift walked away from a broken window at a closed business without going in, and wanted to know if they could have.

This question comes from an officer in California, so let’s look at it.

Patrol officers respond to a possible commercial burglary in progress. The call came in during the night, in non-business hours. Officers arrive and contact a witness, who told the police that she observed a broken window large enough for a person to kind of get through. And officers attempted to make contact with the responsible party for the business, unsuccessful.

Now, the officers did not go in to do a protective sweep to ensure that no subjects made it into the business. The officers called a boarding company and left. There is maybe a little bit of debate, which is why we’re here, about whether or not we could have gone in. And here’s your answer.

How much do you need to enter a business on a burglary call?

Do we have probable cause level, right? That’s what we kind of want, a fair probability that there is a burglar in that establishment right now. That’s what you want, right? Do you have facts and circumstances that lead a reasonable person to believe that there’s somebody in there?

Now, I would personally want a little bit more than what I’m seeing here, okay? I want to know, is there glass on the ground that has not been cleaned up, right? That’s probably going to be true. Who is this witness? Does the witness have any association with this business, where they say, “Yeah, I walked by here 10 minutes ago and there was no broken window. Now there is a broken window”? Of course, any alarms would help. What kind of business is this? Is this a business that would attract thieves? I mean, I guess all businesses attract thieves, but especially ones where there’s maybe something valuable in there and so forth.

If you think you could get a search warrant, do you already have probable cause?

The other thing, there’s also a comment made that we couldn’t go in, we would have to get a search warrant. Well, think about this for a second. If somebody thinks that we could get a search warrant to enter that premises, then that says to me that they actually have probable cause that that business was burglarized, right? Otherwise, why would you go to the judge and ask for a warrant?

And if you are thinking that, then also, when do you think that burglary occurred? If this is something that you think is recent, because of the glass on the ground, the witness knows the neighborhood, the window wasn’t broken before, and the business was open earlier that day and you didn’t get any calls about a broken window then, so it probably happened at night, and this is happening at night, then why wouldn’t you think that somebody could be in that business right now? That would be exigency.

So just think of it that way. Do you have some kind of urgency to protect people’s property? And I think the answer would be yes, if you thought that this was a legit burglary that occurred recently.

Does community caretaking still let police enter a business?

Finally, many cases of old talk about community caretaking: that we can go into these businesses just to make sure and just kind of button things up and so forth. We don’t want to think that way, since the Supreme Court told us in a case called Caniglia versus Strom that when we enter homes, we want not just community caretaking, we want exigency. And we can apply that to businesses to some degree.

And I think the same rules are going to apply to businesses, even though businesses are not homes and they’re not as protected. I don’t know why, as law enforcement professionals, we would not want to have that high standard, so that we are legally safe if we do get into a shooting, if we do get into a use of force and so forth.

Can police be liable for walking away from a business burglary?

Finally, there was mention about liability, right? What happens if we just walk away and something bad happens? The business is being burglarized, or there’s a shopkeeper in there that got killed and so forth. That can always be a possibility.

However, generally speaking, there is no obligation under the Constitution, at least, maybe some state laws, there’s no obligation for police officers to take affirmative action to protect other people’s property from damage, right, from theft.

This is why police are not first responders, right? People are first responders. That’s why I’m a huge advocate for the Second Amendment, right? We are our own first responder. Police, generally speaking, are second responders.

And that’s a good example here. There is no obligation legally to do anything here. We could walk away because we don’t feel that we have enough to go in, and if something did happen, it would be very hard to sue police over that.

And again, this is why you guys get paid the big bucks. You have to make these decisions about what’s right for your agency, your risk tolerance, your values about how you police your community and so forth. All right, so that’s just a little side note.

The short version

  • Do we have probable cause level? A fair probability that there is a burglar in that establishment right now.
  • I would personally want a little bit more than what I’m seeing here. Glass on the ground, who the witness is, any alarms, what kind of business it is.
  • If somebody thinks we could get a search warrant, that says to me they actually have probable cause that the business was burglarized.
  • If the burglary is recent and it’s happening at night, why wouldn’t you think somebody could be in there right now? That would be exigency.
  • Many cases of old talk about community caretaking. We don’t want to think that way since Caniglia versus Strom.
  • Generally speaking, there is no obligation under the Constitution for police to take affirmative action to protect other people’s property.

I hope this video has helped you get it right every single time. Until next time, my friends, you stay safe.

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 #599