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