CA8: Open door not relevant to legality of entry, but it might be to flagrancy of unlawful entry

Whether a door is open or closed does not matter–“the Fourth Amendment has drawn a firm line at the entrance to the house”–Payton. The entry here was illegal, but not flagrantly so, so later consent was still valid. United States v. Greer, 607 F.3d 559 (8th Cir. 2010):

But absent a finding of consent, which is not urged, or a suspect standing in the doorway, cf. United States v. Santana, 427 U.S. 38, 42 (1976), the status of the door is not determinative. In Payton itself, the officers saw the suspect through an open door, crossed the threshold, and arrested him, 445 U.S. at 578, but the Court held that “the Fourth Amendment has drawn a firm line at the entrance to the house.” Id. at 590. The government says it is significant that the police had “first hand knowledge” that Smiley was in the house, not merely second-hand probable cause, but there is no certitude exception to the warrant requirement. The entry to the home was unlawful.

. . .

The circumstances here demonstrate purgation of the taint. The Supreme Court has placed “particular” emphasis on the purpose and flagrancy of the official misconduct. Brown, 422 U.S. at 604. Those factors suggest that Greer’s voluntary consent was an independent act of free will. The purpose of the unlawful entry was not to investigate Greer. The officers spotted a fugitive in the residence, and their intrusion was aimed at apprehending her. The entry was not especially flagrant; the door to the residence was open, and the officers used no force to gain access. The officers smelled marijuana before going into the house, so the unlawful entry did not prompt the request to search.