MEORANDUM:
FROM: Mary Savage, Legal Counsel, KDVA
TO: KDVA Board of Directors
DATE: April 20, 2010
SUBJ: Client Confidentiality Re Execution Of Arrest Warrants
CC: Sherry Currens, Executive Director, KDVA; Angela Yannelli, Associate Director, KDVA
In response to recent inquiries from various Board members regarding client confidentiality issues, the following memo is submitted.
Here is the specific question which were posed:
What should shelter staff do when police come to execute an arrest warrant and there is no accompanying search warrant?
Here is the “simple” answer:
Do not confirm or deny the presence of the person named in the warrant and do not allow police to enter to execute the warrant. Call an attorney immediately.
Here are the reasons for the above answer:
Our funding sources(via federal law) and state law generally require us to keep personally identifying client information confidential unless we are required by law to release it. There are both a state law and a federal law which make it a crime to conceal/harbor an individual sought by the police. However, there are also Constitutional/Bill of Rights protections involved here. The 4th amendment protects us from “unlawful search and seizure”. Cases which have been decided by the US Supreme Court have held that the police may not enter a “third party” premises in order to look for a suspect even if they have an arrest warrant, unless they also have a search warrant that specifies that they can search that address. There are some very limited exceptions to this, such as they are in “hot pursuit of a fleeing felon” or there are other “exigent circumstances” which require immediate action or else evidence of a felony crime would be lost/destroyed, etc. We are generally not dealing with those types of situations. More typically, it is the police showing up to arrest someone for some misdemeanor or fairly innocuous felony crime and they just haven’t gone to the trouble of securing a search warrant (and they don’t want to). They want you to make their job easy and just let them in.
Why does the Supreme Court say they need a search warrant as well? In order to get a warrant, an officer has to swear to an affidavit that s/he has knowledge that provides the probable cause to believe that the suspect is at a particular address. For instance: a client is in domestic violence court in the morning and tells the judge in open court she is staying at the local shelter. A sheriff’s deputy shows up at the shelter that afternoon to execute an arrest warrant, but has no search warrant. Why not? Could not that deputy have taken the information heard in court that morning, gone to the county attorney and signed an affidavit in support of a search warrant and gotten a judge to sign it? Yes! Why didn’t s/he? Because it’s easier to just show up and bully the shelter staff. When can the police enter and execute an arrest warrant alone (no search warrant required)? Only at the suspect’s known residence/dwelling and only when they also have reason to believe the suspect is at the home at that time. So, in all probability, you will hear the police/county attorney say something like, “Well, we know she’s there and that gives us probable cause.” Or you may have federal law enforcement agents threatening to arrest you because they simply don’t care about the 4th Amendment and just want to get their job accomplished and you’re in the way, etc.
The national experts of domestic violence and client confidentiality have opined that the police must have a facially valid search warrant to accompany the arrest warrant in order for a program to allow the arrest warrant to be executed. What do shelter staff look for in order to determine facial validity of the search warrant? Our Victim service standards require you to determine if the search warrant:
1)specifies the individual or the object of the search
2)alleges that the individual or object of the search is located at the program or its street address
3)is properly dated and signed by a judge
What are the possible repercussions either way – you allow them to enter or you don’t? Obviously, if you do not allow it, they may arrest you or a member of your staff. There should be a valid Constitutional argument that that is a wrongful arrest, you can sue them, you should be acquitted of any charged crime, hopefully things will all go according to “the Law.” But, as our clients find out every day, sometimes “the Law” doesn’t work the way it should. Have some bond money handy.
Alternatively, if you allow the search and don’t hold the police’s feet to the fire and make them do their job correctly, you may risk being accused of violating a client’s confidentiality rights and you may end up being sued, putting your federal and state funding in jeopardy, and ultimately, and most importantly, putting the client’s safety in jeopardy. One anecdote we have heard is that a shelter in some other state allowed the police to execute an arrest warrant, with no accompanying search warrant, and because of the arrest, the client lost her house and her kids. The arrest warrant had been taken out by her abuser. She is now suing the shelter.
Our Victim Service Standards reflect what the law requires. Directors and staff should be clear in advance of a situation occurring about how it will be handled. I highly recommend having a proactive discussion with the heads of your local law enforcement agencies and/or the attorney who advises them (be that county attorney or city attorney, etc) Thismay or may not resolve the problem. But at least you will know where they stand on the issue, once they’ve had the opportunity to digest, in a non-crisis way, the reasons why we do what we do. I would be happy to be involved in such a discussion. At a minimum, I have prepared the attached document which you can keep in your crisis office and have handy to read or show to the police and/or their advising attorney should the situation arise.