Can Virginia law enforcement officers enter a person's home without consent to execute an emergency custody order for mental health under § 37.2-808, or do they need a separate search warrant?

Subject

Law enforcement personnel are authorized to enter a residence and take a person into custody for the execution of an emergency custody order so long as there are sufficient grounds that the abode is the residence of the subject of the order and there is reason to believe that the subject is within the residence at the time of entry. If the abode is the residence of a third party, then law enforcement must obtain a search warrant before entering the residence to take custody of the subject of the order.

Plain-English summary

When a Virginia magistrate issues an emergency custody order (ECO) for someone in mental health crisis under § 37.2-808, law enforcement officers have to actually find the person and bring them in for evaluation. That often means going to their home. The Fauquier County Sheriff asked the Attorney General whether the ECO by itself authorizes nonconsensual entry into the home.

The AG handled the Fourth Amendment analysis by treating an ECO as the mental-health analog of an arrest warrant. Both are court process issued on probable cause that directs law enforcement to seize a person. The Supreme Court's rule in Payton v. New York, 445 U.S. 573 (1980), is that an arrest warrant carries an implicit limited authority to enter the suspect's dwelling when there is reason to believe the suspect is inside. Applying Payton to ECOs:

• If the home officers want to enter is the subject's own residence, the ECO permits entry, provided officers (1) have sufficient grounds to believe it's the subject's residence, and (2) have a "reason to believe" the subject is home at the time of entry. The Fourth Circuit has not nailed down the precise meaning of "reason to believe," but most circuits read it as less than probable cause.

• If the home officers want to enter is a third party's residence (a friend's house, a relative's apartment), the ECO is not enough. Under Steagald v. United States, 451 U.S. 204 (1981), officers need a separate search warrant to enter a third party's home in pursuit of someone they want to seize, absent exigent circumstances.

What this means for you

For Virginia law enforcement executing ECOs

The opinion holds that an ECO under § 37.2-808, treated as an arrest-warrant analog under Payton v. New York, carries limited authority to enter the subject's own residence when officers have sufficient grounds to believe it is the subject's residence and reason to believe the subject is inside at the time of entry. It holds the "reason to believe" standard was left undefined by the Supreme Court and the Fourth Circuit, with several circuits reading it as less than probable cause. It holds that if those two prongs are not met, or if the residence belongs to a third party, a separate search warrant is required absent exigent circumstances. A footnote adds that this authority may be subject to other constitutional and statutory protections governing entry when responding to persons in potential mental distress.

For attorneys representing ECO subjects

The opinion holds that entry on an ECO is constrained by two Fourth Amendment prongs (the residence belongs to the subject, and there is reason to believe the subject is inside) and that entry into a third party's residence requires a separate search warrant absent exigent circumstances. It does not address remedies for a violation.

For families during a mental health crisis

The opinion holds that an ECO authorizes officers to enter the subject's own residence under the Payton two-prong test, but that entering a third party's home where the subject is staying requires a search warrant absent exigent circumstances.

For magistrates issuing ECOs

The opinion holds that the ECO itself carries the limited Payton entry authority for the subject's own residence, while a separate search warrant is needed to enter a third party's residence absent exigent circumstances.

Common questions

What is an emergency custody order in Virginia?
A court order under Va. Code § 37.2-808 issued by a magistrate when there's probable cause that a person (1) has a mental illness with substantial likelihood of imminent serious harm to self or others, or substantial likelihood of serious harm due to inability to provide for basic needs, (2) needs hospitalization or treatment, and (3) is unwilling or unable to volunteer.

Does the ECO let officers force entry into the subject's home?
Yes, under the Payton rule, treating the ECO as an arrest warrant analog. Officers must have sufficient grounds to believe it's the subject's residence and reason to believe the subject is inside.

What's "reason to believe" mean?
Less than probable cause, in most federal circuits. The Fourth Circuit hasn't defined the standard precisely. It's a fact-based inquiry into whether officers have a real basis to think the subject is inside (signs of occupancy, recent observations, statements from family).

Can officers enter a friend's or relative's home where the subject is staying?
Not on the ECO alone. They need either (1) consent from the resident, (2) exigent circumstances, or (3) a separate search warrant for that home, under Steagald v. United States, 451 U.S. 204 (1981).

What counts as an exigent circumstance?
Imminent threat to life, imminent destruction of evidence, hot pursuit. In an ECO context, evidence that the subject is about to harm themselves or someone else can establish exigency, but the analysis is fact-specific.

Does the Fourth Amendment really apply to mental health seizures?
Yes. Federal circuits have uniformly held the Fourth Amendment applies to seizures for psychiatric evaluation, involuntary commitment, and similar mental-health interventions.

What if the officers find evidence of crime during the entry?
The ECO authorizes only the limited entry needed to take the subject into custody. Any criminal investigation or evidence collection beyond that requires its own constitutional basis (consent, plain view, additional warrant).

Background and statutory framework

Section 37.2-808 lays out the substantive standard for an ECO. A magistrate issues the order on a sworn petition (or on the magistrate's own motion) when there's probable cause of mental illness plus substantial likelihood of imminent harm (to self or others, or by inability to meet basic needs) and unwillingness or inability to volunteer for treatment.

The Fourth Amendment framework comes from a line of federal cases starting with Payton v. New York, 445 U.S. 573 (1980): "[F]or Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Federal courts have extended that rule to involuntary commitment orders: Linbrugger v. Abercia, 363 F.3d 537, 541 (5th Cir. 2004); Vaughan v. Foltz, 2019 U.S. Dist. LEXIS 44333 (E.D.N.C. Mar. 19, 2019); United States v. Sullivan, 2006 U.S. Dist. LEXIS 73859 (M.D. Ala. Aug. 18, 2006).

Fialdini v. Cote, 594 Fed. App'x 113 (4th Cir. 2014), is the closest Fourth Circuit case. It declined to precisely define "reason to believe" but noted that the 1st, 2d, 5th, 10th, and D.C. Circuits read it as less than probable cause. The Ninth Circuit equates it with probable cause; the 8th and 11th have declined to define it.

Steagald v. United States, 451 U.S. 204 (1981), is the Supreme Court's authority for the third-party-residence rule. To enter a third party's home in pursuit of a subject, officers need a search warrant (absent exigent circumstances). The same principle applies to ECOs.

Citations

• Va. Code § 2.2-505 (AG advisory opinions)
• Va. Code § 37.2-808 (emergency custody orders)
• Payton v. New York, 445 U.S. 573 (1980)
• Steagald v. United States, 451 U.S. 204 (1981)
• Cloaninger v. McDevitt, 555 F.3d 324 (4th Cir. 2009)
• Glass v. Mayas, 984 F.2d 55 (2d Cir. 1993)
• Sherman v. Four Cty. Counseling Ctr., 987 F.2d 397 (7th Cir. 1993)
• Gooden v. Howard Cty., Md., 954 F.2d 960 (4th Cir. 1992)
• Maag v. Wessler, 960 F.2d 773 (9th Cir. 1991)
• Anaya v. Crossroads Managed Care Systems, Inc., 195 F.3d 584 (10th Cir. 1999)
• McCabe v. Life-Line Ambulance Service, Inc., 77 F.3d 540 (1st Cir. 1996)
• Villanova v. Abrams, 972 F.2d 792 (7th Cir. 1992)
• Fialdini v. Cote, 594 Fed. App'x 113 (4th Cir. 2014)
• Linbrugger v. Abercia, 363 F.3d 537 (5th Cir. 2004)
• Vaughan v. Foltz, 2019 U.S. Dist. LEXIS 44333 (E.D.N.C. Mar. 19, 2019)
• United States v. Sullivan, 2006 U.S. Dist. LEXIS 73859 (M.D. Ala. Aug. 18, 2006)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: http://www.oag.state.va.us/files/Opinions/2021/21-058-Mosier-Issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

Office of the Attorney General

Mark R. Herring
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
December 30, 2021
Virginia Relay Services
800-828-1120
7-1-1

The Honorable Robert P. Mosier
Office of the Sheriff of Fauquier County
78 West Lee Street
Warrenton, Virginia 20186

Dear Sheriff Mosier:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether law enforcement personnel are authorized to enter an abode and take a person into custody for the execution of an emergency custody order issued pursuant to § 37.2-808. I assume, for purposes of this opinion, that you refer to nonconsensual entry into the abode of the subject of an emergency custody order.

Applicable Law and Discussion

Your inquiry presents a question under the Fourth Amendment, which prohibits unreasonable searches and seizures by the government. As federal courts have emphasized, the Fourth Amendment applies in the mental health context. Here, for purposes of Fourth Amendment analysis, an emergency custody order is analogous to an arrest warrant. Like an arrest warrant, an emergency custody order is a legal process issued upon a showing of probable cause that directs law enforcement to seize a person.

Section 37.2-808(A) provides, in relevant part, as follows:

Any magistrate shall issue, upon the sworn petition of any responsible person, treating physician, or upon his own motion . . . , an emergency custody order when he has probable cause to believe that any person (i) has a mental illness and that there exists a substantial likelihood that, as a result of mental illness, the person will, in the near future, (a) cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm and other relevant information, if any, or (b) suffer serious harm due to his lack of capacity to protect himself from harm or to provide for his basic human needs, (ii) is in need of hospitalization or treatment, and (iii) is unwilling to volunteer or incapable of volunteering for hospitalization or treatment.

Neither Virginia case law nor our statutes directly address your question as to whether an emergency custody order permits law enforcement officers to enter an abode and detain the subject of the order. The question as to whether an emergency custody order permits law enforcement officers to enter an abode to detain the subject of the order must be analyzed under the Fourth Amendment framework of whether an arrest warrant permits law enforcement officers to enter an abode in pursuit of the subject of the warrant.

In Payton v. New York, the United States Supreme Court held that "for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." As noted by the Fourth Circuit Court of Appeals in Fialdini v. Cote, the United States Supreme Court "did not define the 'reason to believe' standard articulated in Payton." The Fourth Circuit Court of Appeals also declined to define the standard but noted that several other circuits have concluded that the standard requires a showing less than probable cause.

Applying the Payton framework to your inquiry, an emergency custody order permits law enforcement officers to enter an abode to take custody of the subject of the order, provided (1) there are sufficient grounds to believe that it is the residence of the subject, and (2) that there is a "reason to believe" that the subject is home when law enforcement executes the order. If this two-prong test is not met, however, then a search warrant (in addition to the emergency custody order) is required to enter the abode. Such authority may be subject to other constitutional and statutory protections governing entry by law enforcement officers when responding to persons who may be in potential mental distress.

Although I assume that your question refers to the abode of the subject of the emergency custody order, it is significant to note that if the abode sought to be entered is the residence of a third party rather than the subject of the order, a search warrant is required. In Steagald v. United States, the United States Supreme Court determined that the privacy interests of a third party in being free from an unreasonable search requires, absent any exigent circumstances, law enforcement to obtain a search warrant when attempting to enter the third party's residence in pursuit of the subject of a warrant. Thus, under this analysis, absent any exigent circumstances law enforcement seeking to execute an emergency custody order must obtain a search warrant before entering the residence of a third party to conduct a search for the subject of the order.

Conclusion

It is my opinion that law enforcement personnel are authorized to enter a residence and take a person into custody for the execution of an emergency custody order so long as there are sufficient grounds that the abode is the residence of the subject of the order and there is reason to believe that the subject is within the residence at the time of entry. If the abode is the residence of a third party, then law enforcement must obtain a search warrant before entering the residence to take custody of the subject of the order.

With kindest regards, I am,

Mark R. Herring
Attorney General