D.N.M.: Officers had PC to believe def was inside for execution of arrest warrant

The officers had at least a fair probability that defendant was inside for execution of the arrest warrant in Arizona and the case was indicted in New Mexico. The standards are different between the Ninth and Tenth Circuits, so which law applies? The court should apply the Tenth Circuit rule, but there was enough here to meet the Ninth Circuit’s higher standard. United States v. Maley, 2020 U.S. Dist. LEXIS 36889 (D.N.M. Mar. 3, 2020):

The appellate courts for the Second, Tenth, and District of Columbia Circuits have concluded that Payton’s “reason to believe” standard refers to something less than probable cause. Id. (citing United States v. Thomas, 429 F.3d 282, 286, 368 U.S. App. D.C. 285 (D.C. Cir. 2005), reh’g in part on other grounds, 179 F. App’x 60 (D.C. Cir. 2006); Valdez v. McPheters, 172 F.3d 1220, 1227 n.5 (10th Cir. 1999); United States v. Lauter, 57 F.3d 212, 215 (2d Cir. 1995)). “The logic behind these decisions is simple enough: the Supreme Court in Payton used a phrase other than ‘probable cause’ because it meant something other than ‘probable cause.'” United States v. Denson, 775 F.3d 1214, 1217 (10th Cir. 2014) (Gorsuch, J.) (internal quotation marks and citation omitted).

The appellate courts for the Third, Fifth, and Ninth Circuits, in contrast, “have construed Payton’s reasonable-belief standard as equivalent to probable clause.” Bohannon, 824 F.3d at 254 (citing United States v. Vasquez-Algarin, 821 F.3d 467, 480 (3d Cir. 2016); United States v. Barrera, 464 F.3d 496, 501 & n.5 (5th Cir. 2006); United States v. Gorman, 314 F.3d 1105, 1114-15 (9th Cir. 2002)). Notably, in Denson, the Tenth Circuit suggested that reason might exist to “reconsider” its determination that Payton’s “reason to believe” standard refers to something less than probable cause in light of the circuit split and the fact that “the Supreme Court itself has sometimes seemed to employ the term ‘reasonable ground for belief’ as part of the very definition of ‘probable cause.'” Denson, 775 F.3d at 1217. However, the court declined to decide the question in that case because “nothing turn[ed] on its answer. Even if the officers needed probable cause to think [the defendant] was inside the home at the time of their entry, they had it.” Id.

. . .

In this case, the officers’ challenged conduct occurred in Arizona, which would seem to indicate that the Court should apply Ninth Circuit law to assess its propriety. However, about half of the officers who engaged in the challenged conduct were employed in New Mexico, see, e.g., Maley, Cr. No. 14-00637 FRZ-LAB (Doc. 61 at 29-30, 64-65, 67-70); the arrest warrant the officers were trying to execute was issued by this Court in New Mexico (Doc. 5); and the investigation leading to the arrest warrant’s issuance occurred in New Mexico. (See generally Docs. 163-65; 167.) These circumstances make it more difficult to ascertain which law should apply. Arguably, New Mexico officers trying to execute a New Mexico warrant arising out of a New Mexico investigation should have been able to rely on their understanding of the law as the Tenth Circuit has interpreted it.

The magistrate judge found it unnecessary to decide whether Ninth or Tenth Circuit law applies because she determined that there was no constitutional violation even under the Ninth Circuit’s more demanding precedent.