July 2015 Bar Bulletin
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July 2015 Bar Bulletin

Your Home, Your Castle - You Rule

By Christina Schuck

 

Your home, no matter how grand or modest, has long been considered a "castle" into which the rain may enter, but not the King of England (or other governmental officials).1 This maxim became part of Fourth Amendment jurisprudence and, as a result, the right to privacy is greatest in one's home.

Excluding others from your castle has long been considered one of the sticks within the property rights bundle.2 The list of those to exclude from your castle may contain law enforcement, local inspectors, burglars and trespassers, and, of course, solicitors.

Privacy in your home is most strongly protected against government action within the criminal context. The Fourth Amendment declares, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause...." Its purpose is "to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials."3

Washington's constitution protects an individual's castle in Article 1, section 7. Interpreted as more protective than the Fourth Amendment,4 it provides: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law."

In 1921, Washington's Legislature implemented Article 1, section 7 by making a police officer's entry into a private dwelling without a search warrant a gross misdemeanor.5 This law does not apply where an exception to the warrant requirement is recognized (e.g., consensual search, exigent circumstances).6 Prosecution under this law is rare, with the first documented case in 1993.7

The government may also seek entry to your castle to implement its civil authority with an administrative search.8 Many city codes contain "right of entry" provisions declaring the right to enter your property at any reasonable time for various public welfare-based reasons.

In the past, individuals faced criminal conviction for refusing entry to governmental officials.9 That changed in 1967 when the Supreme Court ruled that an individual has a "constitutional right to insist that the inspectors obtain a warrant" and may not be convicted for refusing consent.10

Those seeking administrative warrants beware: Even if a judge issues an administrative warrant, it does not make it legal or protect the official from a trespass charge or constitutional claim.11 Furthermore, "right to entry" statutes do not necessarily give officials the right to enter.


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