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The Use of a Domestic Violence Protective Order to Search a Home Violates the Fourth Amendment

Close up image of gavel, glasses, pen, and paper labeled 'search warrant'

On April 8, 2021, the Supreme Court of Appeals of West Virginia made clear that police officers cannot use a domestic violence protective order as a de facto search warrant to search an individual’s home, finding that such a practice infringes upon Fourth Amendment protections.

In State v. Snyder, law enforcement officers went to Mr. Snyder’s home to serve a domestic violence emergency protective order on him. After a person is served with a domestic violence protective order, that person is prohibited from possessing a firearm. The domestic violence protective order also requires the person served to surrender any firearms. The police officers in the Snyder case believed that the domestic violence protective order permitted them to enter and search Mr. Snyder’s home for firearms.

The Court found that a domestic violence protective order is not a de facto search warrant. The Court reasoned that the process for obtaining a domestic violence protective order is markedly different from the process for obtaining a search warrant.

Notably, only police officers and attorneys for the State can obtain a search warrant, whereas a much broader category of individuals can petition the court for a domestic violence protective order. Because the procedure for obtaining a domestic violence protective order is not equipped to provide the same safeguards that are required to obtain a search warrant, the potential for abuse and intrusive searches prevent a domestic violence protective order from being used as a means to search constitutionally protected areas.

For police officers to search a home, they must have a search warrant, or the circumstances must show that an exception to the warrant requirement existed at the time the search was conducted.