By Anthony Bandiero, attorney and senior legal instructor for Blue to Gold Law Enforcement Training.
A question from an officer in South Dakota about what constitutes reason to believe somebody is home for the purpose of the Payton rule. He has a felony warrant, a confirmed address, and a house that went dark when he knocked. His co-workers told him to go get a warrant.
What facts do you have before you knock?
Hello guys, this is Anthony Bandiero, your favorite search and seizure instructor, bringing you another roadside chat.
This question comes from an officer in South Dakota. It is about what constitutes reason to believe somebody is home for the purpose of the Payton rule.
All right, so the scenario is thus. Having a discussion amongst my co-workers about entering a first party residence, not a third party, to effectuate an arrest for a subject with a felony warrant. The address for the subject was listed in their local jacket on their database, and the address is on the warrant as well, and the landlord confirmed this guy lives there. Okay, fine. And so now we have the PC that it is his residence.
Now what about the reason to believe he’s inside? The subject’s vehicle, registered to him and his address, was parked outside. Lights inside the residence were on. A fan was on. A female voice was heard inside. The subject is a female. The fugitive is a female. A male voice could also be heard inside the residence, so she’s talking to somebody in there. When knocking on the door, the lights turned off. The voices became silent. They ain’t answering the door.
The officer believes Payton versus New York, that we had established a reason to believe that the person was home. Some co-workers said you need a warrant. All right, what do you guys think?
Well, look, this might be a tad easy for me. There is absolutely more than reason to believe this guy’s, or I’m sorry, this female is there right now. You got probable cause. You got maybe beyond probable cause. You got clear and convincing evidence, whatever you want to call it. You have certainly met the threshold of Payton.
What did Payton versus New York actually hold?
Now, for those who maybe don’t remember that case from the academy, that is when the Supreme Court stated that police officers could not enter a residence solely to effectuate a probable cause arrest, even for murder. However, they gave us a caveat. They said that if we have an arrest warrant, that is the judicial authority to go into his residence and take him into custody.
So here is a quote from Payton. It is true that an arrest warrant requirement may afford less protection than a search warrant requirement. Not sure exactly what they’re talking about there. I mean, they’re both based on probable cause, right? But it will suffice to interpose the magistrate’s determination of probable cause between the zealous officer and the citizen. If there is sufficient evidence of a citizen’s participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law. Thus, 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 subject lives when there is reason to believe the subject is within. Payton versus New York, 1980.
Is reason to believe the same thing as probable cause?
Okay. The way we teach this at Blue to Gold, and there is some debate about this, would agree that probable cause is the standard, not only to arrest him but also that the subject is domiciled there.
However, I also believe that if the question was asked, okay, what level of proof is this reason to believe? Because reason to believe, by the way, has been used interchangeably by the Supreme Court. It’s been used to refer to probable cause and it’s been referred to refer to reason. That’s why we can have a debate on this. That’s why it’s not clear cut.
Regardless, I think when they say reason to believe that the subject is inside, I think their intent is to say that that’s just reason to believe. Like reason. Okay, that’s just the way I think of it, and I think that’s good practice. You may live in a circuit that does not require probable cause. I personally would tread lightly on that. I just don’t think it’s reasonable to kick doors in when you don’t even have a fair probability they live there. But I digress.
Do these facts get you there?
First of all, they know he lives there. All the evidence points that he lives there. The landlord says he lives there. The address on the warrant is the same. His car is out front. His registration is indicating that address. You got beyond reasonable doubt at this point, right?
Now, do you have a reason to believe that he’s home? Well, you certainly are going to satisfy this requirement in every state, because this is probable cause at least that she is currently present. The voice, the car, the lights, the fan, the time at night, the landlord, all of it is indicating that she is currently in there right now.
If you want a warrant, are you not admitting you already have PC?
And also, I will tell you that the officers who are saying, you know what, I think you need a warrant, well I gotta tell you, you’re actually answering your own question. Because if you’re saying you need to, or just go get a warrant, then aren’t you saying that you have probable cause that they’re in there right now? I mean, aren’t you trying to convince the judge that based on all these factors the female is in that house right now?
In other words, why would you go to the judge if you don’t even think she’s in there? Why would you ask a judge to sign a warrant to go into that house and search for the body of the fugitive? You’re not going to ask for an arrest warrant, you already have that. You would be asking for a search warrant to go in there and look for the body of the fugitive. Well, you need probable cause to look for the body of the fugitive. And if you have probable cause, then you have Payton, because you already have an arrest warrant.
I guess the point is that I don’t have an issue with, if you have doubts, write up a warrant. Okay. However, this is not one of those cases. It’s pretty clear that this is going to satisfy Payton all day, every day, twice on Sunday. So could you make a Fourth Amendment argument out of it? Yes. Right. Yes. But I’m also not there. I’m not the one that’s going to be in the middle of it. But based on these facts, I think we’re good.
The short version
- Payton says police cannot enter a residence solely to effectuate a probable cause arrest, even for murder.
- The caveat is the arrest warrant. That is the judicial authority to go in and take him into custody.
- The Payton language is an arrest warrant carries limited authority to enter a dwelling in which the subject lives when there is reason to believe the subject is within.
- Reason to believe has been used interchangeably by the Supreme Court, sometimes for probable cause, sometimes for reason. That is why there is a debate.
- The way we teach it at Blue to Gold, probable cause is the standard both for residency and for presence.
- You may live in a circuit that does not require probable cause. I would tread lightly on that.
- Here the landlord, the warrant address, the registration and the car out front make residency close to beyond a reasonable doubt.
- The voices, the lights, the fan, the time of night, and the lights going out on the knock make presence probable cause at least.
- If your co-workers want you to go get a search warrant for her body, they are conceding you already have the probable cause Payton needs.
- If you have doubts, write up a warrant. But this is not one of those cases.
All right, keep the questions coming. I hope you like what we’re doing over here at Blue to Gold. You got to go to bluetogold.com, check out all our classes. We have a brand new certified search and seizure instructor class coming out next year. It’s going to be off the hook. It’s going to be really, really powerful, so check that out. If you like what we’re doing here, all I ask if you have time, like, subscribe, share with your friends.
Okay? Until next time, my friends, keep making good case law.
Related from Blue to Gold
- Can Police Enter Locked Room to Arrest DV Suspect?
- Does Payton v. New York Apply to Porch Arrests? Explained for Officers
- When Can You Do a Protective Sweep With an Arrest Warrant?
This article is an edited transcript of Roadside Chat EP#957. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
