Although there are a few exceptions under your Fourth Amendment rights, more often than not, police need a warrant to come into your home.
KX News heard from a Bismarck woman whose rights may have been violated.
We sat down with her and Bismarck Police, to find out exactly what happened, and what should have happened.
To simplify, there are two major exclusions to police needing a warrant to search. These include emergency situations and consent, meaning the homeowner allows officers to search.
Bismarck Police Deputy Chief Jason Stugelmeyer says, “We’re trying to apply that to prior cases that we know of, that’s been ruled on by the Supreme Court, and if we feel that applies, you know, we have to act on it.”
That’s not what happened at Anne Kirkham’s home on March 19th.
She explains, “I was in the living room, on my couch asleep. The next thing I knew, I heard ‘Bismarck PD, if there’s anyone in the apartment, say something now’.”
This is a live video Kirkham captured when officers entered her home without a search warrant.
She says there were two officers, and they walked out as soon as she started filming.
Kirkham adds, “I told them that I was recording them live. And when I told them that, they left out of my apartment real quick.”
Police were searching for a couple of runaway kids, including Kirkham’s son. But she says he’s been under the care of the Juvenile Detention Center since January.
Kirkham shares, “I was scared, I mean I don’t even feel safe now. You know, I have nightmares because of this.”
Bismarck Police Chief Dave Draovitch explains, “What I can tell you is there was a complaint made against one of our officers for entering a residence without an exception to the search warrant requirement.”
The investigation is still on-going at Bismarck Police Department, but Chief Draovitch says from what he knows at this point, the officer was likely in the wrong.
He says the officer probably had reason enough to apply for a search warrant and should have.
Deputy Chief Stugelmeyer adds, “We have that easy avenue with the State’s Attorney’s office. They have an on-call person, and we can make that call any time of the day or night.”
Draovitch emphasizes, “We take that very seriously here. You know, I don’t want anybody coming into my house unless they have a very good reason, and we look at it that way. We don’t want to go into anyone’s home unless we have a good reason to do so. And most often times, we need that search warrant.”
Chief Draovitch calls this an isolated incident. Once the investigation is complete, he says if necessary, disciplinary action will be taken with officers involved.
Kirkham says she knew police were in the wrong right away.
KX News sat down with a local attorney to better understand what your rights are when the police knock on your door.
He says if police have a search warrant, there’s not much you can do. You can ask for a copy of the warrant to verify it’s your address and what they are searching for.
If the police show up without a warrant, they need to prove it’s an emergency.
Regardless, he recommends allowing officers in. He says resisting the police is never a good idea.
The Larson Latham Huettl LLP Attorney Jon Byers explains, “Courts generally favor search warrants and disfavor searches without a warrant. So right away if it’s true they were there without a warrant, they have higher hurdles to get over, to demonstrate this was reasonable under the fourth amendment.”
After the fact, you can file a motion to challenge the search, and get any property seized, back.
You can also file a motion to suppress any evidence that was gathered unlawfully, so it cannot be used in court.