S.D.Ga.: Payton‘s standard is “reason to believe” under a common sense approach and not PC

The Payton standard for determining whether a person is home for execution of an arrest warrant is “reason to believe” under a common sense approach and not a more demanding probable cause requirement. In addition, defendant’s actions showed he abandoned his electronic devices when he fled from the police. United States v. Dennino, 2018 U.S. Dist. LEXIS 142001 (S.D. Ga. July 31, 2018), adopted, 2018 U.S. Dist. LEXIS 141900 (S.D. Ga. Aug. 21, 2018):

When the Court called the Payton decision to defense counsel’s attention at the motions hearing, he suggested that the officers lacked any reasonable grounds to believe that he was inside the trailer when they entered. The undisputed evidence does not support this contention. While the Payton Court did not define the “reason to believe” standard, the Eleventh Circuit has since interpreted that language as requiring a “common sense” approach that is less exacting than probable cause. United States v. Magluta, 44 F.3d 1530, 1534-35 (11th Cir. 1995) (reasoning that the Payton Court chose its words carefully, intentionally using “reason to believe” rather than “probable cause” as the test for assessing whether police have proper grounds to enter a suspect’s home for the purpose of executing a warrant for his arrest); see 3 Wayne R. LaFave, Search & Seizure § 6.1(a) at 355 (5th ed. 2017) (noting that the Supreme Court may have selected this language “so as not to encourage lower courts to adopt a hard-nosed ‘probable cause to believe the suspect is in the home’ test”). Indeed, it has been suggested that unless the police have information establishing that a suspect is not at home, then it is reasonable for them to infer that he is there, thus justifying their entry to effect his arrest. Id. at 357-58 (noting that, “as a rule of thumb,” “‘rudimentary police procedure dictates that a suspect’s residence be eliminated as a possible hiding place before a search is conducted elsewhere'”).

When viewed in a common-sense fashion, the evidence in this case certainly furnished the officers with reason to believe that Dennino would be located inside his residence. Over ten months of investigative work had gone into locating this fugitive from justice. Through the persistent efforts of an entire team of investigators, Dennino had been tracked from New York to a sparsely populated area of rural South Georgia. Marshal Harvat had viewed a video of Dennino recently pawning an item at a Vidalia store, and he and a local sheriff had conducted numerous interviews of individuals who had seen Dennino just days earlier. Then, a confidential source informed the sheriff that Dennino and his brother had been living in a particular trailer for several weeks and expressed his belief that the two were “currently” at that trailer. Doc. 23-1 at 19. The officers corroborated the confidential source’s information with the trailer’s landlord, who confirmed that Dennino and another male had been tenants of the trailer for several weeks. It is true that the officers received no response despite knocking on the trailer’s door for several minutes. But it is commonplace for fugitives from justice to stay hidden in their residences rather than open the door to those who are seeking their arrest. See United States v. Beck, 729 F.2d 1329, 1332 (11th Cir. 1984) (the fact that no one responded to an agent’s knock at the door “did not mean that no one was home since it was reasonable to expect a fugitive to hide or flee if possible”).

Dennino has cited no case, and the Court is aware of none, that has found a Payton violation under circumstances similar to those presented here. These officers, who at long last had located the very place where this fugitive was residing, did not act unreasonably when they entered that residence equipped with multiple warrants for his arrest. The personal property that they observed in plain view (but did not seize) during that brief entry was not the “fruit” of any illegality, therefore.

. . .

Here, without any doubt, Dennino intended to abandon the property he left behind in the trailer. The mere fact that this abandonment was prompted by his knowledge that the police were closing in does not render it involuntary. Colbert, 474 F.2d at 176. Because a person can have no reasonable expectation of privacy in items of personal property that he has abandoned, Dennino cannot assert any Fourth Amendment protection for the electronic devices searched by Harvat in this case.