Due diligence required for entry of third party’s residence on arrest warrant

For entry of a third party’s residence for a person named in an arrest warrant under Steagald, the police are required to exercise due diligence and have a “reasonable belief.” United States v. Barrera, 464 F.3d 496 (5th Cir. September 5, 2006):

The Supreme Court has “consistently held that the entry into a home to conduct a search or make an arrest is unreasonable . . . unless done pursuant to a warrant” except when exigent circumstances are present. Steagald v. United States, 451 U.S. 204, 211-12 (1981). Furthermore, the Court has stated that “for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Payton v. New York, 445 U.S. 573, 603 (1980). Payton, however, did not define the “reason to believe” standard it discussed; this court in Route, 104 F.3d at 62, nonetheless, distinguished n5 it from the standard for probable cause and adhered to the articulation of the test for “reasonable belief” set forth in United States v. Woods, 560 F.2d 660 (5th Cir. 1977). In Woods, this court determined that “[r]easonable belief embodies the same standards of reasonableness [as probable cause] but allows the officer, who has already been to the magistrate to secure an arrest warrant, to determine that the suspect is probably within certain premises without an additional trip to the magistrate and without exigent circumstances.” Woods, 560 F.2d at 665 (quotation and citation omitted). Furthermore, we held that courts should review the reasonableness of an officer’s judgment. Id.

n5 Federal and state appellate courts that have addressed the reason to believe standard set forth in Payton have disagreed as to whether that standard should be explicitly characterized as equivalent to the probable cause standard. United States v. Gorman, 314 F.3d 1105, 1111-15 (9th Cir. 2002) (concluding reasonable belief standard in Payton embodies the same standard of reasonableness inherent in probable cause); Valdez v. McPheters, 172 F.3d 1220, 1224-25 (10th Cir. 1999) (criticizing Ninth Circuit authority that had required showing of probable cause to believe defendant resided at location where arrest warrant executed); Green v. State, 78 S.W.3d 604, 612 (Tex. Ct. App. 2002) (distinguishing reasonable belief and probable cause). The disagreement among the circuits has been more about semantics than substance; the courts that distinguish the terms have done so because “probable cause” is a term of art. Route, 104 F.3d at 62. Even though they may distinguish the reasonable belief standard from probable cause, they also define the “reason to believe standard” as requiring that the officers reasonably believe that “the suspect is probably within” the premises. Id. (emphasis added).[end fn]

In Route, police officers executed a valid arrest warrant for the defendant, Route, outside of his residence. 104 F.3d at 61. During the arrest of a co-defendant, for whom officers also had a valid arrest warrant, officers found evidence incriminating Route inside the residence. Id. at 61-62. Route challenged the district court’s denial of his motion to suppress evidence seized from the residence. Id. This court held that the search of Route’s residence was supported by a valid arrest warrant for the co-defendant and by the officer’s reasonable belief that the co-defendant lived at the residence and was within the residence at the time of entry. Id. at 62-63. This court concluded that the arresting officer had performed sufficient due diligence in concluding that the co-defendant lived at the residence because the co-defendant’s credit card applications, water and electricity bills, vehicle registration, and mailing address confirmed that he lived at the residence. Id. This court further concluded that the officer’s reasonable belief that the co-defendant was within the residence at the time of entry was confirmed by the presence of a vehicle in the driveway and noise from a television inside the residence. Id. at 63.

Route offers a standard for determining the amount of due diligence required to support a reasonable belief that a defendant lives at and is present within a residence. It is the sole published Fifth Circuit precedent addressing the issue; the courts in United States v. Bervaldi, 226 F.3d 1256 (11th Cir. 2000), and United States v. Lovelock, 170 F.3d 339 (2d Cir. 1999), however, have dealt with such issues in the same manner.

Wiretap information of defendant being involved in drug deals and surveillance that defendant had entered a stash house and come out with a bag which he put in his car was reasonable suspicion. Therefore, the court does not have to determine whether the traffic stop was valid (which the court noted was dubious in the first place). Dog sniff was valid. United States v. Brito-Melo, 2006 U.S. Dist. LEXIS 62972 (D. Mass. September 5, 2006)*:

Altogether, the defendants were detained forty-five minutes to an hour until the dog did his butt-wiggle-rearward-moon-walk to signal drugs were in the Saab. At that point, reasonable suspicion escalated again, perhaps morphing into probable cause, and a continued detention to conduct the search of the Saab was reasonable.