Justice System, Police, Courts Obstruction of Justice

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jharris352

jharris352

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Ok, I have a client who was at home with his girlfriend and baby who did not live with him. His doorbell rings and he finds six officers on his stoop with a CPS agent. He goes to the door, steps out on the stoop, and closes his door behind him. The officers begin questioning him about where his girlfriend is. He told the officers if they did not have a warrant that he wanted them to leave his property.

He had been under a criminal no contact bond with the girlfriend for the past several months, but apparently unknown to the officers his case had been dismissed. The officers were actually there to seize the couple's baby because the Mom had two other deprivation cases pending. The officers were not sure that either the Mom or baby were in the house. Neither the man or the mother had ever been accused of actually hurting a child.

The man, refused to answer where his girlfriend was when he determined the Police were investigating him for possible Aggravated Stalking and Criminal Deprivation of a child. He explained to the officers that his charges had been dismissed and he was no longer under any bond conditions. The police then started shouting, "Where is the Baby?" The man stated that he wanted them to leave his property unless they could produce a warrant or court order showing they had a right to be there.

When he refused to answer questions because they stated they were on a criminal investigation (possibly of him), and he refused to let them in the house to search for the baby, they arrested him for Obstruction of Justice. They opened his front door without his permission entering the house and found his 14 day old baby and girlfriend (who was now his wife), sitting in the living room.

After they determined she was there they got an emergency shelter care order and seized the baby.

Question:

1. What action of the Defendant constituted Obstruction of Justice?
2. Was the man required to answer questions or could he take his 5th amendment right?
3. With no specific information that the baby was in the house or in danger, were the police justified in entering the residence without the owner's permission or a warrant?

PS: This is an actual case I am working on. This is not hypothetical.
 
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jharris352 said:
1. What action of the Defendant constituted Obstruction of Justice?
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I assume the officers feel that his refusing to permit them inside for a welfare check was sufficient probable cause for the charge. Or, that he was so argumentative that they were unable to conduct their business. He will likely have to wait until he sees the police report or it goes to trial before he can find this out for certain.

2. Was the man required to answer questions or could he take his 5th amendment right?
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No. But, he may NOT have had a right to prevent a welfare check of the child. I do not know what GA law says on the subject.

3. With no specific information that the baby was in the house or in danger, were the police justified in entering the residence without the owner's permission or a warrant?
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That depends on the status of the law there and what the officers and CPS knew or believed at the time. What your client ways happened and what the officers and the CPS worker will say happened may be different. In point of truth, the client likely does not know what the officers and CPS knew. If they showed up with SIX officers, they suspected trouble.

Also, if they believed there was a no contact order still in place, that alone might give them sufficient cause to have done a welfare check if they believed the girl or another protected party lived there.

- Carl
 
Well this incident is all on tape. Apparently they were taping the encounter. He told them on the stairs that there was no longer any bail conditions against him. I don't think he had any duty to let them in the house. They arrested him after declaring that they were on a criminal investigation. He asked them to leave, he refused them entry, and he refused to answer questions. He wasn't rude at all. I think he put the officers in a box they weren't expecting. They got frustrated and broke the rules. They arrested him for not telling them where she was. I think it was a bad arrest.

He was on his step with no one visible in the house and his door was closed. There had been no 911 call, nothing to cause any concern. I think when they opened his door they made an illegal entry into the house.

I am interested in anyone's opinion however.
 
However, as probable cause is established by the totality of the circumstances which include information known or believed by the officers, it will be critical to know why they believed that there existed probable cause to make entry. Maybe this was a contempt of cop issue and they made an arrest and forced entry improperly. On the other hand, I can hypothesize a number of scenarios where an arrest and forced entry WOULD be appropriate.

Until he knows the other side of the coin, he may not know how easy - or, how difficult - it might be to challenge the arrest.

- Carl
 
I was specifically looking for your input. I also want to hear from NY Shark, he may be surprised to hear that!
 
State v. Pando, 284 Ga. App. 70 is a good place to start. That was a similar "knock and talk" case that said the cops need "sufficient evidence of either a valid consent or exigent circumstances necessitating a warrantless entry into the premises."

Exigent Circumstances: "A classic example of exigent circumstances is the likelihood that contraband is in danger of immediate destruction." Because illegal drugs can easily and swiftly be destroyed, the exigent circumstance doctrine is especially necessary in narcotics cases." Boldin v. State, 282 Ga. App. 492

In other words, the Georgia court of Appeals thinks that exigent circumstances exist when the the destruction of evidence is likely. If they were there for a kid, then there is no exigent circumstances argument.

Seems a lot to me that these guys were pissed that your client expressed his willingness to exercise his 4th amendment rights. There is also a case out of Arkansas, I can pull it up if you want, that said knock and talks were no longer allowed in that state. In that case, and much of what led the court to its decision, was the fact that there were 6 officers knocking on the door. The court saw this as an intimidation tactic, which may also have been the case with your situation.

I don't think your client did anything wrong. On the contrary, he was right to ask for something from the court saying the police could go in to take the kid.

All that said, I am not familiar with the nuances of a welfare check. But obstruction of justice? C'mon... While working on this guy's defense, I might consider working on a case of his own.
 
This sounds bad all around.
What really strikes me though is that they took the baby from the mother after she was found.I wouldn't be surprised to find out there are drugs involved here, and CPS may have been working that angle. If they had legitimate information that the baby was in an unsafe environment they may have been okay to take it... however having been refused entrance, and absent any emergency, they should have stopped in their tracks and obtained a warrant.
They blew it when they went through the door.
 
The law suit is already brewing. I don't have my lois law anymore for various reasons so I use the county's service down at the court. I appreciate your head start. I knew I could count on you to be able to find it for me.

I agree that exigent circumstances won't fly because there was no evidence. I also do not think they can apply that principle to the child because they could not show that the child was in imminent danger.

They were stuck between a "perp" who knew his rights and the FACT that they weren't sure the child was even in their jurisdiction much less in danger. So they decided to manufacture their entry. They should have known if this guy knew as much as he seemed to that they were stepping into a trap.

Thanks for the help, I thought that was where we were going.
 
I agree. What's more, it would have been quite easy for them to get a warrant if there were any circumstances for it. If the child was even likely in danger and was probably in the house I think a Judge would go out on a limb to give them a peek in the house to see if the child was there and safe. They just let their ego get ahead of their thought process.

Thanks.
 
A warrant is a phone call away. They screwed up.

I wonder though... what kind of damages are involved with something like this? If there was a drug situation, or something legitimate to take custody of the kid, they won't get the kid back and there is still the violation of rights to deal with...
 
Believe it or not there are is not a drug or abuse situation. This is a political pissing contest. There really are no damages, it is just a violation of civil rights. I'll have to look into what recovery can be made.
 
I wonder what their justification was to take the child from its mother?

I suppose a political pissing contest does explain the six cops on the porch...
 
Get this. Our client and his, now wife, had a rocky history 2.5 years ago. For the past 2 years things have been fine with the exception of one police report where no one was hurt. They had a new baby and DFCS took the child because of a "history of domestic violence" which would "inevitably lead to injury or harm of the child." Neither parent has ever had an injured child.
 
A couple years ago in Florida the feds settled a 4th amendment claim brought under Bivens for $62,500. HOLLA!
 
I think this one is going to be a part of the 1983 suit for depriving the parents of custody in violation of their 4th, 5th and 14th amendment rights. I would like to see a 7-12 million dollar judgment :)
 
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