Early this morning I returned home to my NYC apartment and saw roughly a dozen officers outside, a number scaling down the fire escape.

Apparently they had entered my apartment through the window "by mistake" when attempting to answer a burglary/intruder call in the next apartment, which shares a fire escape. That other call turned out to be nothing.

I think that is all the context that is needed to answer the following legal question: were my fourth amendment rights violated by the police entering my apartment without a warrant?

Any references to relevant laws would be very much appreciated. I don't know if I want to do anything about it, but I will be trying to get the body cam recordings. From talking to another city cop about it, there won't be a report because no arrests were made - but that seems worse?

But, first and foremost, is this a fourth amendment violation?

  • Asking whether your rights were violated in this specific case, or how you should respond, is a request for specific legal advice, which this site cannot provide. We can answer general questions about constitutional law in general types of hypothetical situations, so you may want to reframe your question in that way to avoid having it closed. Commented May 6 at 4:19
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    Please consider it a general question about the bounds of the 4th amendment then, although this did just happen to me. This site is not for legal advice and I am not using it for such - my question is purely educational in nature. Commented May 6 at 4:36
  • @NateEldredge Yeah, just asking about the law applies to real life is not a request for legal advice. RSLAs are more along the lines of, What should I do? or I'd like to do x, will that get me in trouble? or How can I make sure my business is compliant with law y?
    – bdb484
    Commented May 6 at 17:15

2 Answers 2



It depends on whether the officers reasonably tried to identify the correct property. This is difficult to do from a fire escape serving two apartments, and the important thing is not whether they got it right but rather whether they tried to get it right. So long as they made some effort to identify the apartment, such as looking for numbers on the fire escape (irrespective of it they're there or not), that will do.

The linked case is not directly analogous as the police did have a warrant; they just raided the wrong house. The case was not about whether Fourth Amendment rights were violated (that was conceded), it was about whether the police had qualified immunity for the mistake (they did).

In your situation, they need probable cause (a report of a burglar? check) and exigent circumstances (a potential ongoing burglary? check); Payton v. New York, 445 U.S. 573 (1980). Unlike the linked case, there is a coherent argument that this was not a Fourth Amendment violation - a police officer could reasonably conclude that the apartment was the right one or that the burglar had moved on to your apartment since the call came in - that would give probable cause and exigent circumstances.

If it's determined that there was a violation of the Fourth Amendment in your case, the remedy would be for the government to cease the violation, which they appear to have done. While the castle doctrine protections against unreasonable search or seizure may have been violated, it's important to note that nothing the police found has been used as evidence against you, and nothing has been taken.

While the entry itself may not have been a violation, conducting a warrantless search would be unreasonable as there was no probable cause (for the search, not the entry) and exigent circumstances; Payton v. New York, 445 U.S. 573 (1980). However, if you kept something unlawful in plain view so that it could be seen from the fire escape, using that against you would not be a problem; Maryland v. Macon, 472 U.S. 463 (1985), but if they had to enter to see it, it would be inadmissible.

Police officers have a legal protection called 'qualified immunity' for anything they lawfully do in the course of their duties. This means that even if they made a mistake like entering your apartment, it may not be enough to succeed in a lawsuit against them. However, a suit based on a violation which has ceased and which caused no damage would be moot anyway.

  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on Law Meta, or in Law Chat. Comments continuing discussion may be removed.
    – Dale M
    Commented May 9 at 0:59

No, it is clearly not a violation. If they were called and told someone was breaking in, they have the right to investigate, just as if the call was real.

If it turned out someone had broken in, you would be accepting of them going in to check. They had no other information at the time. To them, that was what had happened, since they did not know the call was false.

Police have qualified immunity. They are allowed to take nearly any legal action needed to do their job, if someone is or may be in danger. They were investigating what they felt was a real call and you can not prove otherwise.

You said they went in your residence by accident. That is an admission that it was in fact accidental, and they did not have intent to search unlawfully.

You certainly can file a report. You may get their body cam footage through a subpoena.

  • Silly down votes for no reason lol
    – Mimedfp
    Commented May 6 at 1:34
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    The reason is that qualified immunity plays no role in determining whether there was a rights violation to begin with, and your analysis suggests that if a violation was accidental, it cannot be a fourth amendment violation. Both of these are not true. But I take it from you "lol" that you don't actually care to present accurate answers.
    – Jen
    Commented May 6 at 1:35
  • Yeah, this is a totally unhinged and incompetent answer. Qualified immunity protects officers who actually violate the law. Saying there's no Fourth Amendment violation because there's qualified immunity is like saying the flu doesn't exist because there's a vaccine for it.
    – bdb484
    Commented May 6 at 17:22
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    Yes, you're both incorrect.
    – bdb484
    Commented May 7 at 12:51
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    No, actually every court in the country agrees with me.
    – bdb484
    Commented May 7 at 16:23

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