Warrantless “Across the Threshold” Arrest: Arrest of Defendant in Defendant’s Doorway

Author: Maxel Moreland, Associate Member, University of Cincinnati Law Review

Early Fourth Amendment jurisprudence originally focused on whether a common-law trespass had occurred.[1] Now, the Supreme Court no longer requires an individual to prove that a property trespass occurred before asserting that their Fourth Amendment rights were violated.[2] However, the ancient connection between a person and their home still warrants significant Fourth Amendment protection. The Fourth Amendment respects that connection and affords protection to houses, persons, papers, and effects, with the home being first amongst equals.[3]

In New York v. Payton, the Court held that, absent a warrant or exigent circumstances, the Fourth Amendment prohibits law enforcement from nonconsensual entry into a suspect’s home in order to make an arrest.[4] Currently, a disagreement between circuits exists on whether Payton should extend to instances where the officer makes an arrest without physical intrusion into the home. The Second Circuit recently extended Payton’s protections to include instances where an officer, without physical entry into the home, arrests a home-dweller.[5] Other circuits reviewing this issue have two schools of thought. The Eleventh, Seventh, and Fifth Circuits have held that there is no Payton violation without physical intrusion into the home by law enforcement.[6] Alternatively, the Ninth, Sixth, and Tenth Circuits have held that a Payton violation may occur if law enforcement engages in coercive behavior, while still not physically entering the house, to arrest the home-dweller.[7] Ultimately, courts should follow the Second Circuit’s rule and base Payton analysis on the location of the defendant rather than law enforcement, as it better protects the individual right to privacy within the home.

No Physical Intrusion absent a Warrant or Exigency: New York v. Payton

The seminal case, Payton, established that the Fourth Amendment prohibits law enforcement from physically entering a suspect’s home, absent a warrant or exigent circumstance, to make an arrest.[8] The Court noted that an officer arresting a suspect in a public location and arresting a suspect in the suspect’s home were distinct legal concepts.[9] An arrest made inside of a suspect’s home raises grave Fourth Amendment concerns as “[f]reedom from intrusion into the home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment.”[10]

In Payton, the arrest of a suspect in their home was likened to a search of the suspect’s home, as in both instances the constitutional issue involved is the intrusion into an individual’s home.[11] The Fourth Amendment protects the rights of an individual to remain free from unreasonable governmental intrusion while inside their home.[12] The Fourth Amendment created a line between an individual’s home and law enforcement; the government cannot cross that line without a reason in the form of a warrant or exigent circumstances.

Background of Recent Second Circuit Decision: United States v. Allen

On July 27, 2012, the Springfield, Vermont Police Department responded to a complaint regarding an alleged assault committed by Dennis Allen.[13] While the police had two days and ample probable cause to obtain an arrest warrant, the police officers instead elected to go straight to Allen’s apartment to make the arrest.[14] When the officers knocked on Allen’s door, he answered and complied with the officers’ request to speak; however, Allen made sure to stay “within the threshold” of his home.[15] After a short discussion with the police, Allen was informed that he needed to come with the officers to the station.[16] Allen was arrested after he had submitted to the authority of the police, so no physical force was necessary.[17] Essentially, Allen was arrested based on the conversation he had with law enforcement even though the officers never entered Allen’s home.

An officer then escorted Allen into his apartment so that Allen could put on shoes and say goodbye to his daughter.[18] While inside the house, the officer noticed drug paraphernalia in plain view and used this newly acquired knowledge to successfully obtain and execute a search warrant.[19] This search resulted in the officers discovering a firearm and Allen, as a felon, was then found in violation of 18 U.S.C. § 922(g)(1).[20]

The issue in United States v. Allen is whether or not the officer, during Allen’s arrest, crossed the threshold of Allen’s doorway and intruded into Allen’s home absent a warrant or exigent circumstance. While the police did not physically enter Allen’s home, the issue of whether Allen was legally arrested or whether a “reasonable person” would have been able to refuse the officer’s orders was not contested.[21] Ultimately, the Second Circuit determined that Allen’s encounter with the police would have the same result had the police physically entered Allen’s home.[22]

Seventh Circuit—No Physical Entry, No Payton Violation: United States v. Berkowitz

In United States v. Berkowitz, there was a factual dispute as to whether or not Internal Revenue Service agents entered Berkowitz’s home before making an arrest and a hearing was held to determine whether the location of the arrest made a material difference.[23] The Seventh Circuit determined that the location of Berkowitz did not matter and that as long as the government agents did not make a physical intrusion into the home, no Payton violation occurred.[24] In sum, the Seventh Circuit based its analysis of Payton on the location of the government agents rather than the arrestee.

The court reasoned that a person’s privacy interest in the home has not been breached when an officer asserts their authority to make an arrest from outside the home.[25] The court goes on to explain that the police can then enter a person’s home to complete an arrest that began while the suspect was inside the home.[26] Due to the factual dispute, the court had to remand the case as it determined that if the officers had made the arrest without physically entering the home, the arrest would have been legal.[27]

Sixth Circuit—Payton Violation Only Under Coercion: United States v. Saari

In United States v. Saari, police officers, with guns drawn, knocked on Saari’s door and ordered Saari to exit his home.[28] Saari testified that he only exited the home pursuant to the officers’ orders and his fear of being shot by the officers.[29] The court determined that under the circumstances, any reasonable person would have believed they were under arrest.[30]

Unlike in Berkowitz, the court here centered its analysis on the location of the arrestee rather than the location of the law enforcement officer.[31] The government attempted to argue that Saari voluntarily opened the door and exited the home.[32] While officers can make an arrest if a suspect voluntarily opens the door to their home for an invitee, that is not the case here as Saari only exited the home after a police command and while the police had their guns drawn.[33] For the Sixth Circuit, the distinctive Fourth Amendment issue regarding the legality of the arrest was dependent on whether or not the defendant voluntarily left his home. Ultimately, the Sixth Circuit determined that the officers had no right to force Saari out of his home absent a warrant or exigent circumstances as Saari did not exit his home voluntarily.[34]

Second Circuit—No Physical Entry Required Under Payton: United States v. Allen

In Allen, the Second Circuit concluded that when law enforcement has summoned a suspect to the door, and that suspect remains inside their home, law enforcement cannot arrest the suspect absent a warrant or exigent circumstances.[35] The court looks to a previous Second Circuit decision to come to this conclusion: United States v. Reed.[36]

In Reed, the suspect had been arrested in her home after answering a knock from law enforcement.[37] The court refused to conclude that Reed had waived her interest in privacy when she opened the door because to hold otherwise would present a dilemma for occupants: open the door and waive the Fourth Amendment right to privacy or refuse to open the door and risk the creation of an exigent circumstance justifying warrantless entry.[38] It should be noted that Reed predates Payton and was expressly approved by the Supreme Court in Payton and that the dilemma presented in Reed supports the courts conclusion in Allen.[39]

The Second Circuit declared that a Payton analysis should focus on the location of the defendant rather than the location of law enforcement.[40] Applying the Payton analysis to the defendant rather than law enforcement further strengthens an individual’s Fourth Amendment right to privacy in their home. Even though an officer has not violated a suspect’s privacy until the officer enters the suspect’s home, as a practical matter, physical intrusion into the home will occur subsequent to arrest.[41] A failure to focus the Payton rule’s analysis on the location of the defendant would result in the inevitable governmental intrusion into a suspect’s home regardless of where the arresting officer was located. Ultimately, the courts should determine the location of the defendant rather than law enforcement when analyzing Payton, and as long as the defendant remains inside their home, an officer cannot make a warrantless arrest absent exigent circumstances.

Payton Needs Extension to Include Allen Ruling

When a court analyzes Payton it should follow the example of the Second Circuit and focus on the location of the defendant rather than the law enforcement. While the ruling in the Sixth Circuit also focused on the location of the defendant, the voluntariness requirement poses additional problems. One defect in applying a voluntariness requirement would be the constant litigation surrounding whether the arrestee voluntarily exited their home. Alternatively, a voluntariness standard would prove difficult to achieve as suspects cannot truly leave their homes voluntarily if law enforcement has ordered them to leave.

Instead, the Second Circuit’s bright line rule provides a more judicially manageable standard and would be easier for law enforcement to follow. The Second Circuit’s opinion promotes the key Fourth Amendment interest of an individual’s right to privacy within their home. Allen provides greater protections for suspects as the ruling prevents law enforcement from engaging in coercive tactics to secure an arrest without crossing the threshold of an individual’s home. If and when the Supreme Court rules on whether Payton requires an actual physical intrusion into the home, it should apply the rule presented in Allen. Not only does Allen provide a bright line rule, but it also promotes one of the main purposes of the Fourth Amendment, privacy inside the home.

[1] Kyllo v. United States, 533 U.S. 27, 31 (2001).

[2] Id. at 32.

[3] Florida v. Jardines, 133 S.Ct 1409, 1414 (2013).

[4] See New York v. Payton, 445 U.S. 573, 576 (1980).

[5] United States. v. Allen, 813 F.3d 76, 78 (2nd Cir.2016).

[6] See Knight v. Jacobson, 300 F.3d 1272, 1277 (11th Cir.2002); United States v. Berkowitz, 927 F.2d 1376, 1386–88 (7th Cir.1991); United States v. Carrion, 809 F.2d 1120, 1128 (5th Cir.1987).

[7] See Fisher v. City of San Jose, 558 F.3d 1069, 1074–75 (9th Cir.2009) (en banc); United States v. Saari, 272 F.3d 804, 807–08 (6th Cir.2001); United States v. Reeves, 524 F.3d 1161, 1165 (10th Cir.2008).

[8] Payton, 455 U.S. at 576.

[9] Id. at 587.

[10] Id. at 587 (quoting Dorman v. United States, 435 F.2d 385, 389 (D.C. Cir 1970)).

[11] Id. at 589.

[12] Id. at 589-90.

[13] Allen, 813 F.3d at 78.

[14] Id.

[15] Id. at 79.

[16] Id.

[17] Id. at 80.

[18] Id. at 79.

[19] Id.

[20] Id. (18 U.S.C. §922(g)(1) bars felons from possessing a firearm).

[21] Id. at 86.

[22] Id.

[23] Berkowitz, 927 F.2d at 1385.

[24] Id. at 1386.

[25] Id. at 1387.

[26] Id.

[27] Id. at 1388.

[28] Saari, 272 F.3d at 807.

[29] Id.

[30] Id. at 808.

[31] Id. at 809.

[32] Id. at 810.

[33] Id at 811; see United States v. Gori, 230 F.3d 44 (2nd Cir.2000) (In Gori, the arrestee voluntarily opened the door to receive a food delivery while police were in the apartment hallway.).

[34] Id. at 812.

[35] Allen, 813 F.3d at 82.

[36] Id.; see generally United States v. Reed, 572 F.2d 412 (2nd Cir.1978); Gori, 230 F.3d 44.

[37] Reed, 572 F.2d at 415.

[38] Id. at 323 n.9.

[39] Allen, 813 F.3d at 82.

[40] Id. at 85.

[41] Id. at 86.

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