{"id":1399,"date":"2008-01-03T13:56:58","date_gmt":"2007-09-30T20:28:58","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-09-30T20:28:58","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1399","title":{"rendered":"Reasonable belief arrestee is inside is enough under Payton<\/em> and Steagald<\/em>"},"content":{"rendered":"

A reasonable belief that the person named in the arrest warrant is inside is all that is required for qualified immunity in a civil case over the alleged unlawful entry. This is a question left unanswered by both Payton<\/em><\/a> and Steagald<\/em><\/a>. Solis-Alarcon v. United States, 514 F. Supp. 2d 185 (D. P.R. 2007):<\/p>\n

What neither Payton<\/em> nor Steagald<\/em> address is what occurs when the police mistakenly believe that the house in which they seek to execute the arrest warrant is the arrestee’s residence. Several circuits have addressed that vacuum, among them the Tenth Circuit, which has stated:<\/p>\n

In a Payton<\/em> analysis, this court recognizes a two-prong test: officers must have a reasonable belief the arrestee (1) lived in the residence, and (2) is within the residence at the time of entry. Valdez v. McPheters<\/em>, 172 F.3d 1220, 1224-25 (10th Cir. 1999) (rejecting argument “reasonable belief” standard is the equivalent of “probable cause”). Thus, whether Steagald<\/em> or Payton<\/em> applies is resolved under the first prong of the test.<\/p><\/blockquote>\n

U.S. v. Gay<\/em>, 240 F.3d 1222, 1226 (10th Cir. 2001).<\/p>\n

A number of circuits–the Second, Third, Fifth, Sixth, Eighth, Eleventh, and D.C. Circuits–are in accord that the police will have acted in a manner consistent with Payton<\/em> so long as they have a reasonable belief<\/strong> that the person for whom they have an arrest warrant resides at the home where they seek to execute the warrant and is present therein at the time. See, U.S. v. Barrera<\/em>, 464 F.3d 496 (5th Cir. 2006); U.S. v. Pruitt, 458 F.3d 477 (6th Cir. 2006); U.S. v. Thomas<\/em>, 368 U.S. App. D.C. 285, 429 F.3d 282 (D.C. Cir. 2005); U.S. v. Bervaldi<\/em>, 226 F.3d 1256 (11th Cir. 2000); U.S. v. Lovelock<\/em>, 170 F.3d 339 (1999); U.S. v. Route,<\/em> 104 F.3d 59 (5th Cir. 1997); U.S. v. Risse<\/em>, 83 F.3d 212 (8th Cir. 1996); U.S. v. Magluta<\/em>, 44 F.3d 1530 (11th Cir. 1995); U.S. v. Lauter<\/em>, 57 F.3d 212 (2nd Cir. 1995); U.S. v. Edmonds<\/em>, 52 F.3d 1236 (3rd Cir. 1995), vacated in part on other grounds, 80 F.3d 810 (3rd Cir. 1996). The Ninth Circuit adheres to a stricter view, requiring the equivalent of probable cause to believe that the arrestee lives at a residence and is present therein at the time the police seek to execute the arrest warrant. See, U.S. v. Gorman<\/em>, 314 F.3d 1105 (9th Cir. 2002). See also, U.S. v. Harper<\/em>, 928 F.2d 894 (9th Cir. 1991) (requiring probable cause to believe that the subject of arrest warrant lives at a residence in order to execute the arrest warrant at that residence.). While the First Circuit has yet to face this issue, it has made some statements in passing that lend support to the reasonable belief standard espoused by the Second, Third, Fifth, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits. See, U.S. v. Weems<\/em>, 322 F.3d 18, 22 (1st Cir. 2003) (citing U.S. v. Gay, 240 F.3d 1222); U.S. v. Calderon<\/em>, 77 F.3d 6, 9 n.1 (1st Cir. 1996) (leaving open the possibility that the resident’s consent to the search was not necessary and noting that the police believed that the purported arrestee, for whom the police had an arrest warrant, also lived at the residence; citing U.S. v. Lauter<\/em>, 57 F.3d 212).<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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