document updated 10 years ago, on Jul 29, 2012
Consent and law enforcement, as it's done in California

Consent and law enforcement, as it's done in California

It's a nice fall day here in California. The birds are singing, the whip is stinging... You and your partner are having a wonderful time playing in the bedroom of you private residence when you hear the following at your front door:

BANG, BANG, BANG, Sheriff's Office. Open the door!

OH CRAP, the window is open and someone heard something and called 911. What do you do?

What you do over the next fifteen minutes will have a major effect on the rest of your life. In this article I am going to tell you how to stay out of jail, avoid trial, and not get sent to state prison. Who am I to tell you this? I am a serving peace officer in the State of California and have been since 1980. I have been a Field Training Officer, am currently a POST approved Academy Instructor, a qualified Forensic Death Investigator, and I have been a Paramedic/Officer on a Street Level Task Force where I assisted in well over 200 raids and buy/busts. I hope you understand I am telling you what the officer will do when s/he arrives at this call for service from the officers' standpoint so you can understand why they can, and how they will, handle this call.

Before we discuss what happens and how to avoid arrest, let's discuss why you could be arrested.

In the years that followed the OJ debacle about 135 laws were changed, modified, or enacted surrounding Domestic Violence (DV.) Many were regarding statistical reporting and defining what DV is. In California you have two major laws regarding DV:

273.5 PC Penal Code. Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.

Inflicting corporal injury under 273.5 Penal Code means a willful use of violent force. Such force includes hitting with body weapons like hands or feet, or the use of striking weapons like a keyboard, chair or a lamp. By willful, the statute means that the force must be done deliberately, as opposed to accidentally.
A Traumatic Condition has been defined as: "a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force." The key is that there must be some visible injury on the person's body. The injury could range from a minor scratch, redness, swelling or bruising to a very serious injury such as a broken nose or a concussion.

Note, if a weapon is used that is truly a weapon, such as a knife, nightstick, broken bottle, whip, paddle, and the like, then the charge is 245 (a) (1) PC, Assault with a deadly or dangerous weapon, Felony with three to five in San Quentin.

243(e)(1) is a battery (any unlawful touching of the person of another by the aggressor himself, or by a substance put in motion by him) committed upon a spouse, former spouse, cohabitant, parent of the defendant's child, current or former fiancé, or anyone with whom the defendant has (or previously had) a dating or sexual relationship. It is a misdemeanor and carries a penalty of up to one year of county jail. Penal Code 243(e) (1) is similar to Penal Code 273.5, except that it does not require the "traumatic condition" element. That is to say, the prosecutor need not show that there was a visible injury to the victim to secure a conviction.

So according to California Law, when I come to the door and find your partner injured, and you do not cooperate and get your story out, you are arrestable as you stand at the door. What I need to successfully prosecute you and get a Felony conviction is me just walking in the door and seeing what has happened. In both of the above listed statutes, the victim need not testify or give a statement, the officer's visual observation and report is all that is needed. Also in DV cases, officers have no choice in arresting you, it is mandated by law that they must arrest the dominant aggressor, period. No discretion is allowed, someone is going to jail.

Also there are enhanced penalties above and beyond the punishments listed: loss of federal security clearances, restrictions against various professional licenses, becoming a "prohibited person" for the ownership of weapons such as pocketknife, firearms or archery gear, the taking of Martial Arts classes like Boxing or Judo, and the possession of even one round of ammunition. Violation of these enhanced penalties is a Felony and in some cases a Federal Felony with up to 48 months in a Federal Prison.

Do I Have Your Attention Now?

Before we go any further, I'd like to give insight on an officer's priority when serving a call. The first rule of Law Enforcement is not, "Protect and Serve," it's not "Safety and Service," and it sure ain't any of those cute sayings you see on the side of a patrol car. The first rule is: "Go home at the end of your shift." Officer safety is my primary goal; I cannot serve the public if I am injured or dead. Of all officers who were injured in 2010, 33.0 percent were responding to disturbance calls! The current mantra for LEO is "Not Today! I will not be caught unaware! I will go home."

I have a loving family I am going home to at the end of my shift.

So, First, the 911 call:

The RP (reporting party) will call and report what s/he heard, the sounds of one person striking another, maybe some yells or screams (depending on the scene) and the dispatcher will send out a call of a in-progress, Felony, Domestic Violence call (DV.) Keep remembering during this discussion, to the Responding Officer, (RO) this is an in-progress Felony DV call. This will trigger several things:

1. A check of your residence in the Computer Aided Dispatch System (CADS) for prior calls for services, weapons registered to person listed living there, a warrant check of all persons listed living there and prior contacts with Law Enforcement of persons living there.
2. More than one unit will respond and the primary responding officer assigned may call for officers/deputies with Less Lethal weapons, TASER, Patrol Rifle or other assets as s/he feels is needed. And you may have a Sergeant tag along.
3. Officers will set up on your residence; they will be listening at the window, watching your back door, and get ready to make immediate entry if they feel life is in jeopardy and exigent circumstances exist.

At your door:

After all officers are in place, the dispatcher will try and make a phone call to your residence to ask what is going on. If you answer the phone, tell them the truth, the dispatcher has heard it all, don't worry. Answer any questions the dispatcher might ask. Some of the questions will be: "What's going on?" "Who are you?" "Do you have any weapons?", "Do you have any injuries?", and "Where are you in the house?" Dispatch will then relay to the RO that no one is claiming DV and that you will meet them at the front door (Or whatever door you are instructed to go to). If you have a no talking clause with your sub, now is a good time to tell him/her to talk freely to the officers. If you two are in fetish wear, just throw a robe over it and go to the door, more on this later.
If you don't answer, the aforementioned loud knock will happen. Either way, this is what will happen when you meet the RO at the door:

The wrong response and its consequences:

Now you can stand there and say, "You are not coming in," or you can thump your chest and say, "I don't consent to this unlawful search." (It's lawful, see notes) Or you can say things like "I want it documented that this is against my consent!" (This is not unlawful activity, a report may not be written.) Being a guardhouse lawyer and boasting about rights you do not have will do nothing for you and it will send up major red flags in my head.
About your rights, or should I say the rights you think you have; remember, the officers are not there to protect your rights, they are there to rescue a victim and protect the victims' rights, not yours. Until you convince the RO that this is not a DV case, the mindset of the officers will be that felony criminal activity is afoot and you are the suspect of that activity.
It is correct; I do need a warrant or consent to enter your home... unless there are exigent circumstances that allow me to enter. And we all can agree that Felony DV rises to the level of exigent circumstances. (Note 2) (Note 3) (Note 4) (Note 5) (Note 6) So, I am coming in.
I read on a fetish website about having Law Enforcement arrive because someone called thinking it was DV. The author said that you should "not let them in without a warrant," in fact this discussion notes, "Tell them to come back with a warrant," and "slip the warrant under the door so you can call your lawyer and ask how to deal with the problem." With the above information, and the mindset of the RO, what do you think would happen if you did that? Yep, you better step away from the door 'cuz my size 10.5 E boot meets door at the doorknob, repeatedly, until I get in. If this happens you WILL go to jail for 148 (a) 1, P.C.

The suggested response:
The responding officer will tell you who s/he is and why they are there. Be cordial and open the door, keep your hands where they can see them, and greet them. "Officers (or Deputies), sorry for the disturbance. Please come in and ask any questions you may have while we wait right here." There will be a primary RO and cover officers. Remember you've engaged in a lawful act between two (or more) consenting adults so you need to get that idea through to the RO. What they think they are responding to is a DV case, not playtime. So until you get it across to them it's play, they will take measures to protect a potential victim and themselves.

The officers will then come in and do what is called a "protective sweep." (Note1) The purpose of a protective sweep is a brief look around to ensure the safety of the officers, and to find any potential victims. The protective sweep must be limited to a brief inspection of places where a person may hide, and last no longer than is necessary to validate and/or dismiss any potential threats, and to locate anyone in need of assistance.

If you raise your voice or in any way impede my job... The next sound you will hear is the ratcheting noise of my handcuffs on your wrists and me searching you. It's called the attitude test... The worse your attitude is, logically the more I feel you are covering up unlawful activity. Oh yeah... really... handcuffs, remember at this point you are being lawfully detained. You will not be allowed out of the officer's sight, you may be searched for weapons, and handcuffs may be applied to detain you for the officer's safety, and my safety is paramount in my mind. (Note 7) (Note 8)

The sweep is done, everyone has been found, and we, the coppers, are talking to you. You need to show to the RO nothing is wrong and dispel the thought that badness is happening here.

You will be asked about things like weapons or the like, so be smart. If you have a lawfully registered firearm they already know it, tell them where it is. If you have contraband, shut the hell up and don't talk. (Note 9)

You, or better yet your both you and your sub, may point out such things like, bondage accoutrements, your toy box(es), eyebolts in the bed, your membership card to various clubs or organizations (major points if your sub shows them these) and, like me and my wife's bedroom, point to the various floggers and canes hanging on the wall. You might even discreetly show what you are wearing underneath your robes. All of these things will dispel the thought of DV and more to playtime. How will the officers react? Some officers will be embarrassed, some will laugh, and maybe you will get me and we will talk about mutual friends. Laugh with them, apologize to the embarrassed ones, and maybe exchange phone numbers to the ones longingly looking at your collections of floggers. You may make a new friend!

At some point the sergeant will walk in. Do not immediately start talking to the sergeant and forget the RO. It is still the RO's case; sarge is just here to look after his troops. Again be cordial and greet the sergeant, but it's the RO who will be deciding what's going to happen.

If you do everything right I am out the door in about 15 minutes. "Two David Six, back in service, it was just loud sex" and a good story to tell in the locker room as I am changing. And I'm off to my next call for service.

However, some agencies have a policy to take reports on any DV call to document that there was no violence, known as an "info only report." And as agency policy is law, (Note 10) the RO may have to take a report. Point out to the RO that no unlawful activity was done, everything was consensual, and this was all due to someone overhearing something and calling law enforcement. It was not a Domestic Disturbance; it was two, or more, persons having a consensual situation. If a report is done, again do not argue or become uncooperative, you are required to give me ID and cooperate (again 148 (a) 1, P.C.) (Note 11) give the RO a statement indicating all of the points about consensual BDSM. Make it as long as you want but you and your sub need to get it across that it was fun and not DV. In other words..... flood them with paper. (Note 12)

If a report is done, and you feel it was unnecessary, contact the patrol division commander at the main station during business hours. S/he will of course back his troops until s/he can look into it, but point out you are making a formal complaint that a report was made for lawful activity. Be stern but polite and calm. Also ask the phone number for Internal Affairs, call them too. What you are looking for is to have the report "squashed" (police slang for expunged) and removed from the files. What you want is for it all to go away. Police records are public records and can be reviewed by any person with or without reason. It may happen, or it may not.

OK, so you didn't follow the above listed rules, failed the attitude test, and you are under arrest. More than one person has found himself or herself in jail because they failed the attitude test. So I say again, don't let your ego get you in trouble, cooperate and I will be gone in five minutes. You may get the last word in, but I will have the last act. Yes, you may just get arrested for just being a jerk.

An arrest.
The officer has merely arrested you for what s/he thought was criminal activity. A report will be written and submitted to the District Attorney (DA.) It is the DA who will decide to charge you in court or not file charges. So, it still ain't over for you...
A DA Investigator (the detectives for the DA's Office) will review the case file. Remember those statements you and your sub wrote out? It shows all of this was consensual and therefore lawful. (Again, Note 12) The DA Investigator will send his/her recommendation to the "Charging DA." It is the Charging DA who will decide whether to press charges or not. They won't waste the time and trouble taking this to a jury knowing they will lose. The time to "lawyer up" is if you get charged and arraigned in court, not before. Don't waste your hard earned cash until you need to. You don't know how many people run to the lawyers' office as soon as they are released from jail only to find that charges were dropped. You lawyer will tell you they did it, however it not up to your lawyer, it's up to the DA.

If you were arrested and no charges were filed; the arrest will still show on your record, and that record is public record. Remember all those news reports that say someone was "arrested in 2005 but no charges were filed." They get that information by going to the court and asking for public records about the subject. Remember, public records are available to anyone with or without reason. To fix this, you will need a lawyer to make a motion before the court on:
California Penal Code 851.8, Seal and Destroy Arrest Record; Determination of Factual Innocence:
This code is a wonderful code for people to know. It is an order from the court to all parties, the officer, the agency, the court, and the Department of Justice, to seal all reports of this case for three years. And after three years, unless ordered by the court not to, destroy it all. The CAD notes, dispatch tapes, officer notes, reports, files, DA notes... EVERYTHING. It is as if the incident never happened. After this is granted you should send a copy by registered letter to places like, Lexis-nexis, and the various credit agencies. Yep, credit agencies, they keep arrest records too.

After reading this, I hope you come away with at least these ideas:

-The first person I am thinking about is me and my brother officers.
-The officers are there thinking this is a Felony DV case, you need to assure them it's not.
-They are coming in to protect the rights of the victim; you both need to assure them there is no victim.
-Be calm and cool, check your ego in the bedroom, and alleviate the RO idea away from DV.
-Things will be OK if you cooperate and just tell us the truth about what is going on.

One last word:
As Sgt. Phil Esterhaus said after every morning briefing: "Hey, Let's be careful out there!"


All cases are US Supreme or Appellate Court rulings unless noted otherwise.

Note 1: Maryland v. Buie, 494 U.S. 325 (1990) Officers, with reasonable suspicion, may search the area for things or persons that pose a danger to them.
Note 2: United States v. McConney, 728 F.2d 1195, 1199 1984: Those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.
Note 3: People v. Ramey [16 Cal.3d 263] (California Supreme Court) Exigent circumstance means: An emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect, or destruction of evidence. There is no ready litmus test for determining whether such circumstances exist, and in each case the extraordinary situation must be measured by the facts known by officials.
Note 4: Ray v. Township of Warren, # 09-4353, 2010 U.S. App. Lexis 24043 (3rd Cir.). Law Enforcement Officials may enter a locked residence when there is evidence a person is inside a home being held against her will. In this case she was held in violation of a court order.
Note 5: United States v. Johnson, 22 F.3d 674, 680 (6th Cir.1994), held that police officers had lawfully entered an apartment without a warrant in order to free a fourteen-year-old girl who was being held against her will.
Note 6: United States v. P Rohrig 98 F. 3d 1506. May enter when there is a complaint about noise affecting the neighborhood, and no one answers the door after repeated attempts to contact the persons inside. In this case there was a question of an incapacitated person in the residence.
Note 7: Muehler v. Mena, 544 U.S. 93 (2005), Officers have the authority to use reasonable force to effectuate a detention. In this case, the Court said, the governmental interest in applying handcuffs to Mena -- who was already being lawfully detained -- outweighed the intrusion
Note 8: Terry v. Ohio, 392 U.S. 1 (1968), the Court held that police could "stop and frisk" a suspect on "reasonable suspicion" that he had already committed, or was about to commit, a crime. This frisk was to protect the officer against weapons the suspect may have on them.
Note 9: United States v. Boyd, 407 F. Supp. 693, 694 (S.D.N.Y.1976); the courts concluded during a justified a warrantless intrusion. Any item is plain view is admissible. The courts relied on the important fact that officers did not enter the apartment for the purpose of searching for contraband, but instead were acting to protect the wellbeing of the community. The courts refused to suppress incriminating evidence found during this entry - possession of rifles by a prohibited person, Boyd.
Note 10: Long Beach Police Officer Assn. v. City of Long Beach (1984) 156 Cal.App.3d 996 (California Supreme Court) Basically, agency policy is the law that officers and deputies will follow.
Note 11: Hiibel v. Sixth Judicial District Court of Nevada
Must show ID of some form when officers/deputies are investigating possible criminal activity, However. Hiibel v. Nevada does not apply in California, even though it was decided by the US Supreme Court. California no longer has a statute requiring you to give ID when detained by law enforcement, Nevada does. And Hiibel was convicted of violating it Nevada law. If California had such a law, then Hiibel would apply.
However, California does have a law having to do with resisting, delaying, or obstructing an officer performing his duties. (148 (a) 1, P.C.) As Hiibel shows that not showing your ID during a criminal investigation is unlawful, and I would like to know who it is I am investigating, refusing to ID yourself during a criminal investigation is obstructing my duties.
Note 12: Lawrence v. Texas, 539 U.S. 558 (2003), Adult consensual sexual intimacy in one's home is a vital interest in liberty and privacy protected by the Due Process Clause. This case struck down all "sodomy laws" in the USA.

148 (a) (1) P.C. Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.