Warrantless Arrest Inside the Home: Constructive Entry Under the Fourth Amendment

by Christian Bugher, Associate Member, University of Cincinnati Law Review Vol. 93

I. Introduction

The Fourth Amendment protects individuals from unreasonable searches and seizures conducted by the government.[1] This fundamental right is especially significant when applied to searches and seizures in one’s home. The United States Supreme Court maintains that physical entry of the home is the chief evil the wording of the Fourth Amendment is intended to protect against.[2] Further, in Payton v. New York, the Supreme Court held that the Fourth Amendment prohibits warrantless and nonconsensual entry into a suspect’s home to make a routine felony arrest.[3] However, the Supreme Court has never ruled on whether a Fourth Amendment violation requires the police to physically enter the home or whether a constructive entry is sufficient to trigger a constitutional violation. A constructive entry occurs when the police do not physically enter a home but use tactics that force an individual out of their home and into a place where the police can arrest them.[4] Circuit courts are split on whether Payton should be read narrowly to require a physical entry into the home or whether a constructive entry constitutes an entry under the Fourth Amendment.[5]

This article explores the circuit split sparked by Payton v. New York and argues that a constitutional violation occurs when police constructively enter a suspect’s home without a warrant. Thus, the Supreme Court’s holding in Payton v. New York should apply whether the police physically enter into one’s home or use tactics that force a person out of their home. Part II of this article provides background on the Supreme Court’s modern approach to searches and seizures under the Fourth Amendment and discusses the circuit split caused by Payton, specifically regarding when a Fourth Amendment violation occurs concerning warrantless in-home arrests. Part III explains why Fourth Amendment protections should apply when police constructively enter one’s home without a warrant. Finally, Part IV summarizes the circuit courts’ Fourth Amendment approaches to in-home warrantless arrests and how courts can adequately protect people’s right to retreat into their homes.

II. Background

The United States Supreme Court ruled in Payton v. New York that the Fourth Amendment prohibits warrantless and nonconsensual entry into a suspect’s home to make a routine felony arrest. However, the Supreme Court has never directly ruled on if the warrantless entry into the home requires a physical intrusion for a Fourth Amendment violation to occur or if a constructive entry is sufficient to trigger constitutional protections. Constructive entry occurs when police do not physically intrude into one’s home, but instead use tactics designed to invade the privacy of the home. Without physically entering one’s home, the police can violate the sanctity of the home with tactics intended to coerce the occupant of the home to adhere to the police commands.

However, Federal courts are split on whether Payton should be read narrowly and require police to physically enter the home for a violation to occur, or whether Payton should be read to include constructive entries as violations of the Fourth Amendment.[6]

A. Modern Fourth Amendment Jurisprudence

The core protection of the Fourth Amendment protects against unreasonable searches and seizures.[7] This protection means that the government cannot search a person’s property or make an arrest without a warrant or a warrant exception. The modern approach for analyzing whether a search or seizure is reasonable is laid out by the Supreme Court in Katz v. United States, United States v. Mendenhall, and Payton v. New York. In Katz, the Court established the test for when a search occurs; in Mendenhall, the Court established that a person is seized within the meaning of the Fourth Amendment when they have a reasonable belief that they are not free to leave; and in Peyton, the Court established the limitations of a seizure when one’s home is involved.

In Katz v. United States, the Supreme Court set the current approach for determining and evaluating when a search occurs under the Fourth Amendment. The Court addressed the issue of whether physical penetration of a constitutionally protected area is necessary before a search or seizure violates the Fourth Amendment.[8] This issue arose after FBI agents attached a listening and recording device to the outside of a public telephone booth that Katz was using to participate in illegal gambling.[9] Based on the information recorded by the FBI, Katz was convicted of transmitting wagering information by telephone.[10] On appeal, the United States Court of Appeals for the Ninth Circuit rejected Katz’s contention that the recording violated the Fourth Amendment because there was no physical entry into the telephone booth.[11]

Overturning the  Ninth Circuit, the Supreme Court held that the long-standing trespass doctrine is no longer controlling.[12] It held that the Fourth Amendment protects individuals from searches even when there is no physical intrusion. The Court focused on individual protections, stating that the Fourth Amendment “protects people, not places.”[13] The Court held that when one seeks to preserve something as private, even in an area accessible to the public, it may be protected under the Fourth Amendment.[14] On the other hand, what a person knowingly exposes to the public, even in their own home, is not protected under the Fourth Amendment.[15] Based on Justice Harlan’s concurring opinion, a court must now first determine whether a person has a subjective expectation of privacy and whether that expectation is one that society is prepared to recognize as reasonable.[16] Therefore, the Katz Court created the precedent that the constitutionality of searches under the Fourth Amendment turns not only on whether a physical trespass occurred but more importantly on whether there was a reasonable expectation of privacy.

In United States v. Mendenhall, the Supreme Court held that someone is seized when, in view of all the circumstances surrounding the incident, a reasonable person would have believed they were not free to leave.[17] On February 10th, 1976, Ms. Mendenhall arrived at the Detroit Airport, where DEA agents determined her conduct to be characteristic of someone carrying narcotics.[18] After a brief interrogation, officers guided Ms. Mendenhall to the airport DEA office, where she consented to a search of her purse and person.[19] During the search of her person, officers found two packages of heroin and placed Ms. Mendenhall under arrest for possessing narcotics.[20] Ms. Mendenhall was convicted at trial, but the United States Court of Appeals for the Sixth Circuit reversed, reasoning that the search of her person was unlawful.[21] The Supreme Court reversed the Sixth Circuit’s ruling, concluding that Ms. Mendenhall consented to the search of her person.[22] Citing Terry v. Ohio, the Court reiterated that a seizure occurs when an officer uses physical force or a show of authority to restrain someone’s liberty.[23] Therefore, a seizure occurs not just when physical force is used, but also when officers employ other tactics that demonstrate a show of authority.

In Payton v. New York, the Supreme Court concluded that the Fourth Amendment prohibits warrantless and nonconsensual entry into a suspect’s home to make a routine felony arrest.[24] Payton involved two instances in which New York police officers entered a suspect’s home without a warrant.[25] In the first case, New York detectives had probable cause to believe that Mr. Payton was involved in a recent murder.[26] Officers surrounded Mr. Payton’s apartment, and after no response to a knock on the door, the police forced their way into his home without a warrant.[27] As it turns out, Mr. Payton was not home.[28] Despite this, the police seized a weapon found in plain view, which was eventually used as evidence against him in his murder trial.[29] Mr. Payton filed a motion to suppress the evidence taken from his apartment, but the trial judge upheld the warrantless search and seizure of evidence in plain view as it was authorized by state law.[30] The appellate court affirmed the admission of the evidence.[31]

In the second case, the police conducted a warrantless search and seizure of Mr. Riddick’s home, who they suspected of armed robbery.[32] The police knocked on Mr. Riddick’s door and a young child answered.[33] The police observed Mr. Riddick in the home and rushed inside to place him under arrest.[34] Immediately after placing him under arrest, police searched his dresser drawers and found narcotics, which led to an indictment on narcotics charges.[35] Mr. Riddick moved to suppress the evidence, but the trial court held that the warrantless entry was authorized under New York law.[36] The appellate court affirmed the trial court’s ruling.[37]

Overruling the lower courts, the Supreme Court held that the New York statute allowing police to enter a private residence without a warrant to make a routine felony arrest was unconstitutional and violated the Fourth Amendment.[38] The Court focused on the intent of the Fourth Amendment, noting that a basic principle of the Fourth Amendment is that warrantless searches and seizures inside the home are presumptively unreasonable.[39] Most significantly, the Court put the sanctity of the home above all other protections, emphasizing that at the core of the Fourth Amendment is the right to retreat into one’s home and be free from unreasonable governmental intrusion.[40]

While the Payton Court held that warrantless entry into a person’s home to make an arrest was unconstitutional under the Fourth Amendment, the Court never addressed whether the police needed to make physical entry into the home for a violation to occur. Thus, the circuit courts made their own determinations, and a circuit split emerged. Some circuits read Payton as requiring a physical entry into the home for a Fourth Amendment violation to occur, while other circuits have held that a constructive entry is sufficient for a Fourth Amendment violation.

B. Circuits Holding a Payton Violation Occurs without Physical Entry into a Home

In considering whether constructive entry constitutes a Fourth Amendment violation, the United States Courts of Appeal for the Sixth and Tenth Circuits have held that an individual’s Fourth Amendment rights can be violated without police physically entering the home.

In the Sixth Circuit, an individual’s Fourth Amendment rights can be violated without police entry into the home, and constructive entry is sufficient to trigger a Payton violation. In United States v. Morgan, the Sixth Circuit addressed whether the police officers’ conduct outside Mr. Morgan’s home was sufficient to constitute an arrest.[41] In June of 1982, police responded to a complaint of gunshots at a local park and observed Mr. Morgan loading weapons into his vehicle.[42] In response, the police followed Mr. Morgan to his home.[43] Once Mr. Morgan entered his home, a group of officers surrounded it, flooded it with spotlights, and called into the house with a bullhorn.[44] Responding to these coercive actions and adhering to a police order to exit the home, Mr. Morgan went to his front door where he was arrested.[45] The Sixth Circuit held that the police effectively placed Mr. Morgan under arrest as soon as they surrounded the home. Citing Mendenhall, the coercive actions were enough that a reasonable person would have understood that he was not free to leave.[46] Therefore, by surrounding the home and engaging in coercive tactics without a warrant, the police violated Payton when they constructively arrested Mr. Morgan.[47]  

The United States Court of Appeals for the Tenth Circuit takes a similar stance in United States v. Maez, holding that a person can be arrested while still in his home without physical entry by the police.[48] In United States v. Maez, the Tenth Circuit, addressed whether a Payton violation occurred when armed police surrounded Mr. Maez’s home without a warrant and used loudspeakers to penetrate the house.[49] With their weapons drawn, a SWAT team surrounded the house, officers’ commands  poured through the walls over loud speakers, and the police handcuffed Mr. Maez’s son outside.[50] The court reasoned that because Mr. Maez reasonably believed he had to exit his home and submit to the police’s show of authority, he was arrested while still in his house.[51] The Tenth Circuit concluded that the police’s use of coercive tactics effectively invaded the home; thus, without a warrant, the police’s actions effectively placed Mr. Maez under arrest while he was still in the sanctity of his house.[52] Therefore, the police violated Mr. Maez’s Fourth Amendment rights without making physical entry into the house.

The Sixth and Tenth Circuits read the Payton case broadly, finding that a Fourth Amendment violation occurs even when the police do not make physical entry into a person’s house. However, other circuit courts interpret Payton far more narrowly.

C. Circuits Holding a Payton Violation Occurs Only with Physical Entry into a Home

In considering whether constructive entry constitutes a Fourth Amendment violation, the United States Courts of Appeal for the Eleventh and Seventh Circuits have held that police must physically enter a home without a warrant for a Payton violation to occur.

In Knight v. Jacobson, the Eleventh Circuit opposed the Sixth and Tenth Circuits’ reasoning regarding constructive entry.[53] In Knight, the Eleventh Circuit  drew the line for a Payton violation at the door, holding that an officer’s body must cross the threshold of the house to violate the Fourth Amendment.[54] In response to a neighbor’s complaint, police were dispatched to Mr. Knight’s home.[55] At 2:00 A.M. an officer knocked on Mr. Knight’s door without a warrant to arrest him.[56] When Mr. Knight answered the door, he and the officer had a brief conversation during which the officer commanded Mr. Knight to exit his home.[57] Mr. Knight complied with the show of authority and was placed under arrest.[58] At trial, Mr. Knight contended that a Payton violation occurred when he was arrested. The Eleventh Circuit confirmed the trial court’s denial of this claim, concluding that the police did not violate Payton when the police used a show of authority to invade the sanctity of the home without a warrant by commanding the suspect out of his home.[59] The Eleventh Circuit held that since the officer did not physically cross the threshold of the home, Mr. Knight’s Fourth Amendment rights were not violated, and the warrantless arrest was constitutional.[60]

III. Discussion

The Payton decision should be read broadly to include constructive entry as a violation of the Fourth Amendment. The Sixth and Tenth Circuits correctly held that a suspect is under arrest when the police constructively enter the suspect’s home. Constructive entry is a Fourth Amendment violation under each of the controlling Fourth Amendment Supreme Court cases. 

A. Constructive Entry is a Fourth Amendment Violation under Katz

The Sixth and Tenth Circuits correctly follow the rule in Katz by holding that a Fourth Amendment violation does not need to be a physical intrusion. In Katz, the Supreme Court held that a search can occur not only when there is a physical intrusion, but also when a person has a reasonable expectation of privacy. 

Constructive entry violates a person’s subjective expectation of privacy even without physical intrusion into the home. When people are in the sanctity of their homes, they have a reasonable expectation that noise and distractions will not disrupt the inside of the home. Further, there is a reasonable expectation that when one enters their home, they have the right to exclude others from entering. Property law supports the notion that possessory interest comes with the right to exclude. When police constructively enter the home, they use tactics that intentionally disrupt the tranquility of the home to get the attention of the occupants and take away a person’s right to choose whether or not to exclude the police presence from their home.

The home is a place where society and the courts have consistently afforded extra protection. Constructive entry allows police to intrude into a place where the Supreme Court has held that people have the most privacy and safety. Thus, the Sixth and Tenth Circuits properly protect the sanctity of the home and an individual’s Fourth Amendment rights by holding that a Fourth Amendment violation occurs when police constructively enter a home.

B. Constructive Entry is a Violation of the Fourth Amendment under Mendenhall

The Supreme Court in Mendenhall held that a person is seized when, given the circumstances surrounding the incident, a reasonable person would have believed that they were not free to leave.[61] When police constructively enter a person’s home, it is reasonable for that occupant to feel that they are not free to leave their home. The Sixth and Tenth Circuits correctly held that when police constructively enter a home and lead a suspect to believe they are not free to leave, the police have placed that suspect under arrest while still in their home.

In U.S.  v. Morgan, the Sixth Circuit correctly held that a suspect is under arrest when the police use tactics that would lead a reasonable person to believe they are not free to leave their home.[62] When the police, as they did in Morgan, surround a home, flood the home with spotlights, and use a bullhorn to call into the home, a reasonable person would not feel they are free to leave and would reasonably believe they have to comply with the show of authority.

In U.S. v. Maez, the Tenth Circuit also correctly held that a suspect was placed under arrest while still in the sanctity of his home when the police coerced the suspect into believing he had to comply with their show of authority.[63] When a SWAT team surrounded the suspect’s house and used speakers to call into his home, he reasonably believed that he was not free to leave. 

C. Constructive Entry is a Violation under Payton

The Supreme Court in Payton held that the sanctity of the home should be placed above all other protections, emphasizing that at the core of the Fourth Amendment is one’s right to retreat into his home and be free from unreasonable governmental intrusion.[64]

Permitting constructive entry is squarely against the Court’s rationale in Payton. The Court focused on protection from government intrusion when inside the home. When police are permitted to use tactics designed to intrude into the privacy of the home, any protection from warrantless government intrusion is eroded. If police are permitted to use showings of force and coercive tactics to command people out of their homes to a place where a constitutional arrest can be made, there is less incentive to establish probable cause, obtain warrants, and follow the procedures that are set in place to protect against unreasonable search and seizure.

D. Public Policy Supports Constructive Entry Arrests as Fourth Amendment Violations

Allowing police to use tactics that intrude into a constitutionally protected area without a warrant goes against public policy and the goal of protecting individual rights. The use of coercive tactics is not necessary for the police to effectively do their jobs. There are ways in which the police can still protect the public without engaging in constructive entry. The police can have an officer remain outside the home while another officer works on getting an arrest warrant. Additionally, police can simply wait for a suspect to voluntarily leave his or her home and make a constitutional arrest in a public place without a warrant.

IV. Conclusion

The Sixth and Tenth Circuits are correct in holding that Payton and the Fourth Amendment can be violated without the police making physical entry into a house. When a reasonable person believes they are not free to leave due to a show of official authority, an arrest has occurred.[65] Whether a Fourth Amendment violation has occurred should not turn on whether or not police make physical entry into an individual’s home, but whether or not an individual had a reasonable expectation that they were free to leave or ignore the police’s show of authority. When police use tactics without a warrant that lead an individual to believe they are unable to leave their home or are required to submit to the show of authority, the police have constructively entered the house and seized the individual. If the police are without a warrant in this situation, the Fourth Amendment has been violated.

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[1] U.S. Const. amend. IX.

[2] Payton v. New York, 445 U.S. 573, 585 (1980).

[3] Id. at 575.

[4] United States v. Thomas, 430 F3d 274, 277 (6th Cir. 2005).

[5] United States v. Allen, 813 F3d 76, 81 (2d Cir. 2016).

[6] Id.

[7] U.S. Const. amend. IX.

[8] Katz v. United States, 389 U.S. 347, 349 (1967).

[9] Id. at 348.

[10] Id.

[11] Id. at 349.

[12] Id. at 353.

[13] Id. at 351.

[14] Id.

[15] Id.

[16] Id. at 362.

[17] United States v. Mendenhall, 446 U.S. 544, 548 (1980).

[18] Id. at 547.

[19] Id. at 548.

[20] Id. at 549.

[21] Id. at 547.

[22] Id. at 559.

[23] Id. at 552.

[24] Payton v. New York, 445 U.S. 573, 575 (1980).

[25] Id.

[26] Id. at 576.

[27] Id.

[28] Id.

[29] Id. at 577.

[30] Id.

[31] Id. at 578.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id. at 574.

[39] Id. at 586.

[40] Id. at 590.

[41] United States v. Morgan, 743 F.2d 1158, 1164 (6th Cir.1984).

[42] Id. at 1160.

[43] Id.

[44] Id. at 1161.

[45] Id.

[46] Id. at 1164.

[47] Id.

[48] United States v. Maez, 872 F.2d 1444, 1450 (10th Cir. 1989).

[49] Id. at 1446.

[50] Id. at 1450.

[51] Id.

[52] Id. at 1451.

[53] Knight v. Jacobson, 300 F.3d 1272, 1277 (11th Cir. 2002).

[54] Id.

[55] Id.

[56] Id. at 1274.

[57] Id. at 1277.

[58] Id.

[59] Id.

[60] Id.; see also United States v. Berkowitz, 927 F.2d 1376, 1379 (7th Cir. 1991) (holding that a policeman’s voice to convey a message of arrest into the home does not violate Payton).

[61] United States v. Mendenhall, 446 U.S. 544, 548 (1980).

[62] United States v. Morgan, 743 F.2d 1158, 1164 (6th Cir. 1984).

[63] United States v. Maez, 872 F.2d 1444, 1450 (10th Cir. 1989).

[64] Payton v. New York, 445 U.S. 573, 590 (1980).

[65] Mendenhall, 446 U.S. at 548.

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Cover Photo by Jacob Morch on Unsplash.