Law & Order: SVU vs. real life

June 26, 2005 7:58 PM

Is it true that we can't be arrested in our own homes in the United States?

"Your honor, you know we cannot arrest you in your own home," Elliot Stabler said on Law and Order: SVU tonight.

I know it's dangerous to believe anything said on television, but I wonder where this statement came from. Is this true in the US? Perhaps just in New York? Can anyone explain why Stabler may have said this, other than artistic license?

posted by croutonsupafreak to law & government (11 comments total)

Perhaps they were just showing respect to the judge?
posted by b1tr0t at 8:08 PM on June 26, 2005

Is it true that we can't be arrested in our own homes in the United States?

No.

(Haven't you ever seen "COPS?")

However, L&O have legal consultants on staff, so they're usually pretty careful with stuff like that. There must have been some special circumstances.

Can you tell us more about the circumstances surrounding this arrest?
posted by dersins at 8:13 PM on June 26, 2005

Yeah, of course you can be arrested in your own home. It happens all the time--for quick evidence, just watch COPS (yes, yes, it's TV, but the arrests are real).

Otherwise, criminals could keep themselves barricaded in their house forever whenever the heat came down.
posted by schroedinger at 8:15 PM on June 26, 2005

Oops, sorry, missed Dersin's comment.
posted by schroedinger at 8:16 PM on June 26, 2005

They were arresting a judge on this episode. I've noticed other times when they've lured people out of their homes before making arrests, too. This was in New York, so maybe the laws there are cover this?

Could it be that you can arrest people based on probable cause only when they're not at home, but you need a warrant to arrest them in their own homes?
posted by croutonsupafreak at 8:16 PM on June 26, 2005

I think croutonsupafreak has it. From New York v. Harris:

Payton itself emphasized that our holding in that case stemmed from the "overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic." 445 U.S., at 601. Although it had long been settled that a warrantless arrest in a public place was permissible as long as the arresting officer had probable cause, see United States v. Watson, 423 U.S. 411 (1976), Payton nevertheless drew a line at the entrance to the home. This special solicitude was necessary because " 'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.' " 445 U.S., at 585. The arrest warrant was required to "interpose the magistrate's determination of probable cause" to arrest before the officers could enter a house to effect an arrest. Id., at 602-603.
posted by amber_dale at 8:27 PM on June 26, 2005

IANAL, but, as far as I know, it *is* the warrant thing. With the exception being that the police CAN enter your home without a warrant if 1) you invite them in or 2) they reasonably believe that there is an emergency situation (i.e. someone screaming for help, etc.).
posted by dersins at 8:32 PM on June 26, 2005

Cool, thanks amber_dale. I wonder if this applies in any other states, of if it's just a New York thing.
posted by croutonsupafreak at 8:48 PM on June 26, 2005

I wonder if this applies in any other states, of if it's just a New York thing.

It's not just a New York thing. New York v. Harris is a United States Supreme Court decision from 1990, interpreting the 4th Amendment, so it applies across the board.

The current Supreme Court has fairly high regard for the home as a sanctuary, despite what a questionable record (my opinion) on the 4th Amendment overall. For a good discussion of this, look at the decision in Kyllo v. United States.
posted by jewishbuddha at 9:33 PM on June 26, 2005

croutonsupafreak has it right...for the most part. Police can arrest you in your own home if they have a warrant (i.e. if a neutral magistrate decides that they have probable cause), or if there is an extenuating circumstance. Extenuating circumstances are not traditional "emergency" circumstances (like a woman screaming in a home). Extenuating circumstances are things like hot pursuit (i.e. an officer can follow a fleeing felon into a home), or to prevent the destruction of evidence or the fruits of a crime. Also, an individual can consent to a search of his home. (But the police can't lie to get consent - it has to be voluntary. So they can't say things like "We have a warrant anyway, you might as well let us in.")

Note that these rules only apply when it is the suspect's own home (or when they are an overnight guest in the home). The standard is lower when the suspect is in someone else's home.
posted by elquien at 6:22 AM on June 27, 2005

... to prevent the destruction of evidence or the fruits of a crime. Also, an individual can consent to a search of his home. (But the police can't lie to get consent - it has to be voluntary. So they can't say things like "We have a warrant anyway, you might as well let us in.")

Be careful here not to mix up search warrants and arrest warrants, as the standards are not always identical. Risk of destruction of evidence doesn't necessarily allow the police to barge in to someone's home and make a warrantless arrest. It allows you to go in and seize the evidence (stop the junkie from flushing the smack, etc.) before the perpetrator destroys it. Most likely, in such a circumstance, the police will also have sufficient probable cause to make an arrest. But search and arrest are still two different questions. For example, once exigent circumstances justify police presence, the extent of what they are allowed to search is different if they entered for the purposes of arresting than if they entered for the purposes of searching for evidence.

Although Harris has good information, an even better case to explain this topic is Payton v. New York, which the Supreme Court decided in 1980. Payton discusses the distinctions between search warrants and arrest warrants, as well as the distinctions between in-home warrantless arrests and public warrantless arrests.

Payton is an interesting case in terms of legal reasoning for this topic because it bridges the gap between U.S. v Watson (in which the Court upheld a warrantless public arrest based on probable cause) and Harris (as above, reversing a warrantless home arrest).
posted by jewishbuddha at 5:50 PM on June 27, 2005