Entering Curtilage With the Intention to Arrest

If a suspect tells you to leave while you’re in their house and you’re in the process of arresting them, do you have to leave?

So, here’s the scenario: You perform a knock and talk with the intention of making an arrest, right? You don’t have a warrant; you just have probable cause (PC) charges. The suspect lets you inside, or maybe they come out on the porch, which is part of the curtilage. Let’s say you ask, “Hey, can I come in and talk to you?” and they let you in. Once inside, you inform them, “Just so you know, I’m here to arrest you. I have charges for you.” At this point, as you’re about to arrest them, they say, “Whoa, whoa, whoa, leave.” The question is: Do you have to stop mid-flight? If you have your hands on them, do you have to release them and let them go? Or can you continue cuffing and removing them from the house?

Let’s break this down into two parts. The first question we need to answer is: Were you lawfully present, either in the curtilage or in the home? It’s important to be cautious when entering someone’s home with the sole intention of making a warrantless arrest. Generally speaking, under *Payton v. New York*, 445 U.S. 573 (1980), you cannot lawfully enter a person’s home just to make an arrest without a warrant. This U.S. Supreme Court case originated from New York, where the NYPD had probable cause that Payton had committed a murder three days prior. They entered his home to make the arrest under a New York statute that allowed entry for arrest based on probable cause. However, the Supreme Court held that this statute did not supersede the Constitution, establishing that entering a home without a warrant to make an arrest is unconstitutional.

Returning to our scenario, this isn’t the exact situation as *Payton*, as here, the suspect consented to your entry. However, courts may still view this with skepticism, interpreting it as essentially a *Payton*-style warrantless arrest if your primary intent was to enter to make an arrest. Some judges might say, “Well, he let you in, so he took that risk.” Others may argue, “He didn’t consent to be arrested.”

In my view, if you intend to arrest someone immediately upon entry, you should approach with caution. It’s best to engage in conversation first, possibly follow up on the investigation, and, if necessary, develop probable cause further before attempting an arrest. If they tell you to leave, then at that point, you may have to comply if you lack agency to remain.

So, were you lawfully present? If you can get them out of the home, that’s generally easier to justify constitutionally. But assuming you’re lawfully present, let’s move to the second part of the question.

Do you have to stop the arrest if they tell you to leave? Absolutely not. If you are lawfully present, whether inside the home or on the curtilage, the arrest is lawful. Courts apply a “right to be, right to see” principle, similar to plain view doctrine: if you’re lawfully there, you’re permitted to seize evidence or detain the individual.

Here’s an analogy: Suppose you’re in a home investigating domestic violence, either with consent or agency. If you see a kilo of cocaine on the kitchen table, you can seize it, even if the person later tells you to leave. Similarly, if you’re lawfully inside and in the process of arresting the suspect, they can’t defeat the arrest by asking you to leave. You’ll leave, but with them in custody.

There’s no case, to my knowledge, that holds otherwise. However, if you don’t have probable cause or authority to be there and they tell you to leave, you must comply. In this situation, though, you have probable cause.

Warrantless arrests in homes can be tricky, but I hope this helps clarify. My goal is to help you get it right every time.