KY: Payton’s “reason to believe” the person named in the arrest warrant is home is less than probable cause

Payton’s “reason to believe” the person named in the arrest warrant is home is less than probable cause. This is apparently the majority rule. Barrett v. Commonwealth, 2015 Ky. LEXIS 1859 (September 24, 2015):

Despite what appears to be clear language, courts are split over the meaning of the phrase “reason to believe.” The majority of courts that have considered the standard have held that it is less exacting than probable cause. See United States v. Pruitt, 458 F.3d 477, 484 (6th Cir. 2006); United States v. Route, 104 F.3d 59, 62-63 (5th Cir. 1997); United States v. Risse, 83 F.3d 212, 216-17 (8th Cir. 1996); United States v. Lauter, 57 F.3d 212, 215 (2d Cir. 1995). Other courts have held that the contrast between reason to believe and probable cause is a distinction without a difference. See United States v. Gorman, 314 F.3d 1105, 1114 (9th Cir. 2002) and United States v. Barrera, 464 F.3d 496, 501 n.5 (5th Cir. 2006) (noting that the distinction between probable cause and reason to believe is “more about semantics than substance”). A third group of courts have declined to interpret the standard because they found that the police entry in question was not justified under any interpretation. See United States v. Hill, 649 F.3d 258, 263 (4th Cir. 2011) and United States v. Hardin, 539 F.3d 404, 416 (6th Cir. 2008) (declining to follow Pruitt’s holding as dicta).

The Sixth Circuit’s line of decisions on this question is noteworthy. …

. . .

In full consideration of the diversity of legal authority and the reasoning supporting that authority, we expressly adopt the plain language reason to believe standard from Payton and reject the probable cause standard. Thus, police executing a valid arrest warrant may lawfully enter a residence if they have reason to believe that the suspect lives there and is presently inside. Reason to believe is established by looking at common sense factors and evaluating the totality of the circumstances and requires less proof than does the probable cause standard. Pruitt, 458 F.3d at 482.

We adopt this rule for three key reasons. First and foremost, a plain reading of Payton requires reason to believe and not probable cause. In the words of one federal district court, “when the Court wishes to use the term ‘probable cause/ it knows how to do so.” Smith v. Tolley, 960 F. Supp. 977, 987 (E.D. Va. 1997). In setting forth the rule in Payton, the Supreme Court required the arrest warrant to be “founded on probable cause,” yet set reason to believe as the standard to justify entry. 445 U.S. at 603. Therefore, the Court was clearly aware of the differences and chose to require separate standards. As the Pruitt Court noted:

By way of example, in Maryland v. Buie, 494 U.S. 325 (1990) the Supreme Court held:
[B]y requiring a protective sweep to be justified by probable cause to believe that a serious and demonstrable potentiality for danger existed, the Court of Appeals of Maryland applied an unnecessarily strict Fourth Amendment standard. The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.

Id. at 337 (emphasis added). While Buie addressed the standard to be applied by police for conducting protective sweeps, it is evident that the Supreme Court does not use the terms probable cause and reasonable belief interchangeably, but rather that it considers reasonable belief to be a less stringent standard than probable cause. Pruitt, 458 F.3d at 484.

Second, the rights of suspects will be adequately protected by using this standard. When police execute a valid arrest warrant, a neutral and detached magistrate has already made a probable cause evaluation that the suspect has committed a crime. Commonwealth v. Marshall, 319 S.W.3d 352, 356 (Ky. 2010). It would be overly burdensome for police to make a second probable cause determination when executing a valid arrest warrant. Furthermore, a third party’s rights are not infringed because a search warrant is required to enter into a third-party’s residence to arrest a non-resident suspect. Steagald v. United States, 451 U.S. 204, 205-06 (1981).

Third, with this holding we join the majority of other courts in adopting the reason to believe standard. Although not controlling, we are persuaded by the reasoning of the overwhelming majority of federal circuit and state courts that have held that the “reason to believe” language is a less exacting standard than probable cause. Wayne R. LaFave, 3 Search And Seizure: A Treatise On The Fourth Amendment § 6.1(a) at n. 22 (5th ed. 2014) (citing Commonwealth v. Silva, 802 N.E.2d 535 (2004)).