Author: Petra Ingerson Bergman, Associate Member, University of Cincinnati Law Review
The Fourth Amendment provides for “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”[1] At the time the Fourth Amendment was ratified, the various means by which the government might intrude upon an individual citizen’s life were not extensive. However, as the United States has reached a historically unparalleled degree of complexity, courts have struggled to find the proper balance between public order and personal privacy.
Indeed, Fourth Amendment jurisprudence has morphed from a state of affording broad civil protections to the current, more restricted state. Except for the sanctity of the home, the ability of law enforcement officers to intrude upon an individual’s privacy and property currently appears boundless. Yet, a disagreement over the standing of proof required to search a home sans warrant in order to execute an arrest warrant is brewing in the circuit courts. At issue is the level of suspicion an officer needs before entering a residence to effect an arrest warrant, when the arrest warrant names an individual other than the owner of the residence.
On one side, the Sixth Circuit, joined by the Seventh and Ninth Circuits, held that the proper standard is probable cause. These circuits state that the standards of probable cause and “reasonable belief” are the same standard, and the circuits who cleaved probable cause into two distinguishable standards of proof misinterpreted precedent. Although probable cause lacks a concrete definition, it “turn[s] on the assessment of probabilities in particular factual contexts”[2] and is analyzed in the perspective of an “objectively reasonable police officer.”[3] On the other side, the D.C. Circuit, joined by the Second and Tenth Circuits, argues that the proper standard is “reasonable belief.” These Courts hold that “reasonable belief” and probable cause are two, distinct standards, where the former requires a lesser showing of proof. Though no more perspicuously defined, “reasonable belief” requires more than a good faith “hunch” but less than probable cause.[4]
Accordingly, the legal outcome of this dispute might breach a supposedly impregnable rampart, the Fourth Amendment’s protections of the home. The home is private, a sacred refuge. Exercising dominion over property, whether as a homeowner or a renter, is a source of pride, bolstering an individual’s sense of autonomy and freedom. The drafter’s of the Fourth Amendment respected the sanctity of the home, and explicitly afforded it broad protections unless probable cause, or a warrant executed thereupon, justified breaching those protections.[5] As such, the Fourth Amendment should not be read to require any standard less than probable cause. The Sixth, Seventh, and Ninth Circuits hold correctly in maintaining that probable cause is the singular, proper standard of proof required to enter a third-party residence, without a search warrant, in order to effectuate an arrest warrant. However, these circuits squander an opportunity to reinvigorate the Fourth Amendment by delivering passionless opinions. Fortunately, in its recent ruling in United States v. Vasquez-Algarin,[6] the Third Circuit breathes much needed life back into the Fourth Amendment by recalling the significance of the Fourth Amendment’s protections, and how instrumental the judiciary is in shaping those protections.
The Battle over Standards: Reasonable Belief v. Probable Cause
The split among circuits can be traced back to language employed by the United States Supreme Court in Payton v. New York,[7] upon which subsequent courts have either cleaved “reason to believe” from “probable cause” or conflated the two. Payton gave us the well-established standard that an arrest warrant “implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.”[8] In Payton, the house being searched pursuant to the arrest warrant was the home registered to the accused named in that warrant.[9]
However, the current circuit split is concerned with the standard required to search the home of a third-party, pursuant to an arrest warrant that names an individual other than the owner/leasee of the residence being searched. Without a search warrant, and “absent exigent circumstances,” an arrest warrant “by itself does not authorize entry into the home of a third party.”[10] Accordingly, something more must permit law enforcement officers to enter the home of a third-party. As per Payton, that something more is a “reason to believe,” but whether a “reason to believe” is an equivalent standard to probable cause is the precise point of dispute.[11] The Third Circuit joins the Sixth, Seventh, and Ninth Circuits in finding that “reasonable belief” is the “functional[ly] equivalent” standard to the probable cause standard.[12] On the other side of the argument, the D.C., Second, and Tenth Circuits have held that a “reason to believe” requires a lesser showing than “probable cause.”[13]
The Cleavers:[14] Lesser “Reasonable Belief”
The Circuits in this camp find justification for their rationale in the Supreme Court’s decision to stray from the traditional language of “probable cause.”[15] By choosing to rely on alternative language to describe the standard of proof, the Supreme Court “in Payton used a phrase other than ‘probable cause’ because it meant something other than ‘probable cause.’”[16] Moreover, the Circuits in this camp further justify their stance by pointing out that only one Circuit has thus far held otherwise.[17] Beyond adhering to the supposed intention of the U.S. Supreme Court in Payton, the Circuits further justified their stance by calling attention to how the stricter standard of probable cause might thwart law enforcement efforts.[18]
The Conflaters:[19] Stricter “Probable Cause”
Unsatisfyingly, the majority of Circuits in this camp took a halfhearted stance. Although the Circuits rejected adopting the lesser standard of “reasonable belief,” they stated that they were not required to take a formal stance due to the facts in the cases before them. Therefore, because the law enforcement officers in their instant cases had probable cause to enter the home, a lengthy analysis explaining whether “reasonable belief” requires a lesser showing of proof was unnecessary.[20] Only the Ninth Circuit provided a substantive reason for rejecting the cleaving of “reasonable belief” from probable cause. In United States v. Gorman, the Ninth Circuit analyzed its own jurisprudence to come its conclusion.[21] Finding that neither its own jurisprudence, or Payton, precludes it from interpreting otherwise, the Ninth Circuit held that the “standard of probable cause…is the standard already being applied in this Circuit.”[22]
The Importance of the Rationale in Vasquez-Algarin: Three Cheers for the Third Circuit!
Although reaching the same conclusion as the Conflaters, the rationale in Vasquez-Algarin[23] is significant for one reason: the Court kept the spirit of the Fourth Amendment ever-present in its analysis of the issue. By taking the easy way out, the Conflaters failed to set any meaningful precedent. They also squandered the opportunity to analyze the potential impact of the issue on current Fourth Amendment jurisprudence. At a time when our society is increasingly divided over race relations, police overstep, and civil rights, these Courts missed a prime opportunity to shape, and expand, Fourth Amendment jurisprudence in a meaningful way. Fortunately, the Third Circuit redeemed its fellow Circuits with its decision in Vasquez-Algarin.[24]
In Vasquez-Algarin law enforcement officers forcibly entered the defendant’s home, despite lacking consent or another constitutionally permissible reason to enter, in search of a fugitive.[25] The officers had an arrest warrant for Edguardo Rivera, and stated that they were informed that he might be located at the home of Vasquez-Algarin.[26] As it turned out, Rivera was not present at the home of Vasquez-Algarin.[27] However, during their forced entry and subsequent search of Vasquez-Algarin’s home, the officers found drugs, drug paraphernalia, weapons, and keys to a stolen vehicle.[28] Vasquez-Algarin was arrested and charged with various crimes.[29] At trial, Vasquez-Algarin moved to suppress evidence seized during the search upon grounds that the search was an unconstitutional violation of his Fourth Amendment rights.[30]
Not surprisingly, in course of its holding, the Third Circuit traversed the current jurisprudence at issue and equally considered both sides. The Court held that, when analyzed holistically, the Supreme Court’s Fourth Amendment jurisprudence and its holding in Payton, indicate that the standard of “reasonable belief” is the same standard as probable cause. Moreover, the Court analyzed the controversial language of Payton’s holding by juxtaposing it against Steagald v. United States.[31] The Court stated that, when read against Steagald, the ambiguous, controversial language in Payton became clear.[32] The Court honed in on the fact that the decision in Steagald was handed down one year after Payton.[33] Given the short turnaround, the Court held that the strong, unambiguous language in Steagald indicated that the Supreme Court intended for the “reasonable belief” standard to conflate with probable cause.[34]
Furthermore, the Third Circuit justified its treatment of “reasonable belief” as synonymous with probable cause by stating that, “requiring that law enforcement officers have probable cause…before making a forced entry is the only conclusion commensurate with the constitutional protections the Supreme Court has accorded to the home.”[35]Admonishing its fellow circuit courts, the Third Circuit recounted the judiciary’s responsibility in acting as “arbiter” to determine whether a law enforcement officer has probable cause.[36] To lessen that standard, essentially passing the role of arbiter to law enforcement officers, would serve as a great injustice to the spirit of the Fourth Amendment.[37]
A Hopeful Conclusion: a New Day for the Fourth Amendment
With its passionate opinion in Vasquez-Algarin[38], the Third Circuit held correctly for two reasons. First, the Third Circuit’s lengthy analysis of both Payton and Steagald provided a more robust picture of the Supreme Court’s intentions regarding Fourth Amendment protections. Steagald is crucial to the issue at hand because: (1) it immediately followed Payton, and (2) it repeatedly referred to the standard of probable cause.[39] Almost stubbornly, the Court in Steagald seemed to avoid using the phrase “reasonable belief.”[40] Accordingly, by acknowledging the important evolution from Payton to Steagald, the Third Circuit’s ruling is more jurisprudentially sound because it recognizes that Payton should not be read unaccompanied.[41]
Second, the Third Circuit got it right in Vasquez-Algarin because adherence to probable cause, as opposed to a lesser “reasonable belief,” bolsters the protections afforded by the Fourth Amendment at a crucial moment in Constitutional history. Over the last few decades, with the constitutionalization of Terry Stops and pretextual traffic stops, the right to be free from unwarranted governmental intrusion no longer applies to one’s person or their vehicle.[42] Regrettably, the Fourth Amendment has been whittled away to the point that the home may truly be the only remaining staunchly protected interest.[43] As the primary fortification protecting the public from over-zealous policing, the ramifications of our current Fourth Amendment jurisprudence are far-reaching.
Although not wholly ascribable to work of our judiciary, the relationship between law enforcement and the general public has become increasingly fragile. Fresh on the heels of the shootings in Dallas, and the ever growing list of unarmed citizens being killed during routine traffic stops or other apparently minor legal infractions, both sides feel under siege.[44] Pitted between the two sides lies the judiciary; often tasked with the impossible of striking the perfect balance between supporting law enforcement efforts, while protecting the rights of citizens. In paying tribute to the spirit of the Constitution, and respecting the role the judiciary plays in protecting the public, the Third Circuit reinvigorated the Fourth Amendment in its decision in Vasquez-Algarin.[45]
[1] U.S. Const. amend. IV.
[2] Illinois v. Gates, 462 U.S. 213, 232 (U.S. 1983).
[3] Ornelas v. United States, 517 U.S. 690, 696 (U.S. 1996).
[4] Terry v. Ohio, 392 U.S. 1, 27 (U.S. 1968).
[5] John Cuddihy, The Fourth Amendment: Origins and Original Meaning (2009), at 185-188.
[6] United States v. Vasquez-Algarin, 821 F.3d 467 (3d Cir. 2016).
[7] Payton v. New York, 445 U.S. 573 (U.S. 1980).
[8] Id at 603.
[9] Id at 578.
[10] Steagald v. United States, 451 U.S. 204, 213 (U.S. 1981).
[11] Payton, 445 U.S. at 603.
[12] Vasquez-Algarin, 821 F.3d at 474.
[13] See Id.
[14] “Cleavers” are the courts that bifurcated, or cleave, “reasonable belief” from probable cause, whereas “conflaters” are courts that maintain that “reasonable belief” is, essentially, the same standard as probable cause (conflating the two standards).
[15] Valdez v. McPheters, 172 F.3d 1220, 1224 (10th Cir. Utah 1999); United States v. Lauter, 57 F.3d 212, 216 (2d Cir. 1995); United States v. Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005).
[16] Thomas, 429 F.3d at 286.
[17] Thomas, 429 F.3d at 286; McPheters, 172 F.3d at 1224.
[18] McPheters, 172 F.3d at 1225.
[19] “Cleavers” are the courts that bifurcated, or cleave, “reasonable belief” from probable cause, whereas “conflaters” are courts that maintain that “reasonable belief” is, essentially, the same standard as probable cause (conflating the two standards).
[20] United States v. Hardin, 539 F.3d 404, 416 (6th Cir. 2008); United States v. Jackson, 576 F.3d 465, 470 (7th Cir. Ill. 2009).
[21] United States v. Gorman, 314 F.3d 1105, 1114 (9th Cir. 2002).
[22] See Id.
[23] Vasquez-Algarin, 821 F.3d 467.
[24] See Id.
[25] Id at 469.
[26] See Id.
[27] See Id.
[28] Id at 470.
[29] See Id. Vasquez-Algarin was charged with distribution and possession of cocaine, intent to distribute cocaine, and conspiracy to distribute cocaine.
[30] See Id.
[31] Vasquez-Algarin, 821 F.3d at 473; Steagald, 451 U.S. 204.
[32] Vasquez-Algarin, 821 F.3d at 473.
[33] Id at 473.
[34] Id at 481.
[35] Id at 478.
[36] Id at 481.
[37] See Id.
[38] Id at 473.
[39] Steagald, 451 U.S. 204.
[40] See Id.
[41] Vasquez-Algarin, 821 F.3d at 478.
[42] In Terry v. Ohio, the Court stated that short “stop and frisk” investigative detentions were constitutional and did not violate the Fourth Amendment, so long as the officer has “reasonable suspicion” to conduct the stop. Terry, 392 U.S. 1. Expanding the reach of Terry, the Court held that a police officer could pull a vehicle over, regardless of a pretextual motive, if the police officer could justify the stop with a traffic violation. Whren v. United States, 517 U.S. 806 (U.S. 1996). Together, these cases have effectively nullified any right of a pedestrian or a motorist to be free from governmental intrusion, absent probable cause.
[43] Janet K. Levit, Pretextual Traffic Stops: United States v. Whren and the Death of Terry v. Ohio. 28 Loy. U. Chi. L.J. 145, 147 (1996).
[44] Manny Fernandez, Richard Peréz-Peña, and Jonah Engel Bromwich, Five Officers Were Killed as Payback, Police Chief Says, N.Y. Times, July 9, 2016, at A1.
On July 7, 2016, Micah Johnson targeted police officers in the deadliest attack upon law enforcement officers since the attacks on September 11. Mr. Johnson’s motive was retaliatory in nature, as retribution for the ongoing killings of unarmed black men by police officers.
[45] Vasquez-Algarin, 821 F.3d 467.
