Have You Thought Through Your Law Enforcement Cooperation Policies?
The police will contact you about a resident. It is only a matter of time. Our clients often ask a range of questions about dealing with the police. Do the police have to properly identify themselves? Do you have to answer questions, or provide information about residents? Do the police have to have subpoena to look at a resident’s file? Do the police always need an arrest, or search warrant to enter a resident’s unit? Does your lease cover these issues? Does your lease need to cover these issues? A well thought out policy should answer all of these questions.
You should always require the police to properly identify themselves. While obvious and easy in theory, real world scenarios may test you. Technology has made it far too easy to produce realistic looking yet still false identification. You may not be familiar with all law enforcement, or governmental agencies. Sometimes persons who claim to be law enforcement or government agents provide very little identification. For example, census workers may ask for information on an entire building, but may only provide a business card as identification. Even if the person threatens, or bullies you to provide information, you should always verify a person’s credentials. Legitimate law enforcement, or governmental agents should not object.
While there are many different situations, police contact that requires action on your part is generally limited to two main situations. The police either want information, or they want to enter a resident’s unit. While you have no duty to cooperate with the police, we always advise clients to cooperate with law enforcement and provide requested information. You should voluntarily answer questions, or provide other information to the police. Cooperation is a two-way street. A solid police relationship is beneficial to the community. Again, you have no duty to cooperate, and you could make the police jump through hoops to get subpoenas and court orders to obtain information. However, the police are not likely to be as helpful, or go the extra mile for you when you have a poor, or even adversarial relationship.
Sometimes a client doesn’t want to provide information to the police because they are concerned about violating a resident’s privacy. Based on current law, privacy concerns are overblown. Generally, to invade somebody’s right of privacy (their right to seclusion), you must public disclose facts about a resident’s private life. The requirement of public disclosure requires publicity, which requires communication to the public in general or to a large number of persons, as distinguished from one individual or a few. Providing law enforcement information in the performance of their duties is not likely to meet this test. Further, as discussed below, all privacy concerns can be addressed and eliminated by appropriate lease language.
You should also be concerned about potential consequences if you refuse to provide information to law enforcement. For example, what if the police have reason to believe that a dangerous felon is living at your community, but aren’t positive, and don’t have a unit number. The police show you a photo. You know that the man in the photo is Mr. Smith who resides in 302. However, you refuse to provide any information without a subpoena, court order, or warrant. While the police are getting a subpoena, Mr. Smith finds out the police are hot on his trail. Mr. Smith attempts to escape, and in the process kills three other residents. The surviving family members sue the community, arguing the deaths would have been avoided if you had simply cooperated with the police when they first arrived.
Ideally, before assisting the police in entering a resident’s unit you should always require a search, or arrest warrant. Your lease may give you the right to enter a resident’s unit. You may think that this gives you the right to let the police into the resident’s unit. However, you would be mistaken. Colorado law is clear on this point. Absent an express lease provision, you do not have the right to authorize the police to search a resident’s unit. If you let the police in without a warrant, the resident can sue you. The resident’s suit would be especially strong if the police had the wrong unit and something went tragically wrong after you assisted the police in entering. Obviously, the police could still have a wrong unit number on a valid warrant. However, in this case, any resulting problems will belong exclusively to the police.
While in most cases the police need a warrant to enter a resident’s unit, the law recognizes some exceptions. Specifically, police do not need a warrant if they are in hot pursuit of a criminal suspect, there is an immediate risk of destruction of evidence, or there is an emergency situation threatening the life and safety of another. You should develop a policy ahead of time to deal with these situations. At a minimum, onsite staff should be trained to expect these situations, and should immediately contact either a supervisor, or us if possible. Unfortunately, no policy is ideal. Both assistance and non-assistance involves risk, when the police assert a right to enter without a warrant. Regardless of your policy, if something goes wrong, you are likely to be second-guessed. Only you can weigh, evaluate, and decide what risks you are willing to accept. The police may make the decision for you by busting in the door if they are in hot pursuit of a suspect.
Appropriate lease language, adopting your specific law enforcement cooperation policies, can significantly reduce or eliminate your potential legal exposure. With respect to providing information, lease language can eliminate liability. For example, you may provide information on Resident for law enforcement, governmental, or business purposes and may report unpaid amounts to credit agencies. While you should not be concerned about police entries made pursuant to a warrant, you should consider adding appropriate lease language, especially if your policy is to cooperate with police on entries without warrants. For example, you may assist or allow law enforcement entry into a resident’s unit with a warrant, or without a warrant if law enforcement asserts a recognized legal right to enter without a warrant.
Overall, your policy should address the following issues. You should always require law enforcement to provide proper credentials, and verify law enforcement or governmental agent’s identities. Regardless of your lease, you should always cooperate with law enforcement by providing requested information, and your right to provide information should be clearly set forth in your lease. You should assist law enforcement executing legal warrants. You should evaluate and determine your law enforcement entry assistance policy without a warrant. If you are going to provide entry assistance without a warrant, you should address this issue in your lease.
Remember, well thought-out policies that are communicated to all appropriate participants is a benefit to all.View Resource »