Request By:
Ms. Helen Howard Hughes
Executive Director
Kentucky Commission On Women
614 A Shelby Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; James H. Barr, Assistant Attorney General
This is in response to your recent letter in which you question whether the United States Supreme Court's decision in
Payton v. New York, U.S. (April 15, 1980) affected recently enacted H.B. 86, which amends KRS 431.005 to allow warrantless arrest on probable cause in specified instances of domestic violence.
The Supreme Court in Payton held that police officers may not enter a private residence without a warrant absent exigent circumstances to make a felony arrest.
As noted, H.B. 86 permits warrantless arrest in misdemeanor cases where the police officer has probable cause to believe the suspect has caused physical abuse to certain relatives and the suspect presents a danger or a threat of danger to others. This bill amends KRS 431.005 which statute sets out generally when a peace officer may make an arrest without a warrant. The statute does not specifically address warrantless entry of a residence to effect an arrest.
Many of the elements in H.B. 86 permitting warrantless arrest also relate to exigent circumstances. Although the Court in Payton does not set out a definition of exigent circumstances, such a definition can be found in 2 LaFave, Search and Seizure, § 6.1(c), "Basis for entry to arrest, exigent circumstances. " Such circumstances include: (1) hot pursuit; (2) where delay would gravely endanger the lives of the police officers or the lives of others; (3) where there is a likelihood the suspect will escape if not swiftly apprehended; (4) where there is a necessity to prevent the suspect from destroying or distributing evidence; and (5) where delay would enhance the ability of the suspect to make an effective forcible resistance.
Therefore, in answer to your inquiry, the legality of H.B. 86 was not affected by the Supreme Court decision. However, before a warrantless entry may be made into a residence to effect an arrest, there would have to exist exigent circumstances.