A fascinating Payon / Steagald case: The police here lacked probable cause or even a lower standard of information [the court considering the slightly differing views of the circuits] to believe that defendant lived where they entered. The government here failed to satisfy either prong of Payton. “If Brinkley was merely staying as a guest in someone else’s home, Steagald would require the officers to obtain a search warrant before they could enter it.” The fact the homeowner was reluctant for them to enter without a warrant goes to the heart of the Fourth Amendment, and it can’t be a factor. United States v. Brinkley, 2020 U.S. App. LEXIS 35716 (4th Cir. Nov. 13, 2020):
Pursuant to Payton and Steagald, the officers needed to establish reason to believe not just that Brinkley was staying in the Stoney Trace apartment but that he resided there. If Brinkley was merely staying as a guest in someone else’s home, Steagald would require the officers to obtain a search warrant before they could enter it. Detective Stark’s discovery that Brinkley was involved with Chisholm, and that Chisholm was associated with the Stoney Trace apartment, certainly provided additional evidence that Brinkley might well have stayed at Chisholm’s home, but it did not speak to whether he did so as a resident or as Chisholm’s overnight guest. See United States v. Werra, 638 F.3d 326, 338 (1st Cir. 2011). Further investigation was necessary to establish probable cause that Brinkley resided there.
Police often conduct such further investigation by going to the suspected residence, where they can obtain “recent, eyewitness evidence connecting the suspect to the residence, and often even [observe] conduct by the suspect that demonstrates a tie to the residence” — “common feature[s]” of cases finding that police satisfied Payton’s first prong. Hardin, 539 F.3d at 421. Officers gather this kind of evidence, for example, by conducting surveillance at the suspected residence. See Hamilton, 819 F.3d at 505 (“police installed a pole camera on [the street outside the residence] for surveillance purposes”); United States v. Barrera, 464 F.3d 496, 498-99 (5th Cir. 2006) (officers found three vehicles associated with the suspect at the residence). They also talk to people at or near the residence to gather information from them. See Graham, 553 F.3d at 13 (police corroborated an address from an incident report by, inter alia, showing a picture of the suspect to a person outside the residence); Hardin, 539 F.3d at 407 (officers asked property manager who leased the apartment in question); United States v. Lovelock, 170 F.3d 339, 344-45 (2d Cir. 1999) (police confirmed address listed on suspect’s arrest warrant with two tenants in building). In short, going to the residence in question opens several possible avenues for the police to gather information about whether the suspect in fact resides there.
The officers in this case explained that they went to the Stoney Trace apartment with precisely this investigatory intent in mind. Detective Stark testified that they planned to conduct a “knock-and-talk” at the door of the apartment. J.A. 76. Agent Murphy confirmed that their intent in doing so “was to interview the occupants to find out if Mr. Brinkley was indeed there.” J.A. 113. He further explained that when the officers began speaking with Chisholm at the doorstep, he still intended “to basically secure the area and sit up on the house and wait to see if Mr. Brinkley left.” J.A. 134. And when the officers doubted Chisholm’s assertion that Brinkley was not inside, Detective Stark “asked for her permission … to come through and just do a walk through to make sure that he was indeed not at the residence.” J.A. 115.
That the officers went to the apartment to obtain more information to establish that Brinkley resided there underscores that at the time of their arrival, they had a “limited basis to believe” that he did. Vasquez-Algarin, 821 F.3d at 481. On the doorstep of the apartment, the police officers did talk to an occupant, but they gathered no evidence as to whether this was Brinkley’s residence. The police officers did not even ask Chisholm if Brinkley resided there, but only if he was present — a critical difference under Steagald. The unexpected arrival of five armed officers apparently led Chisholm to grow nervous as they pressed her to allow them to enter. And the officers heard someone, or something, moving inside. But these facts did not establish that Brinkley resided in the home. At the time they entered the Stoney Trace apartment, all the officers had was the same “limited basis to believe” that Brinkley resided there that they had when they knocked on the door.
Of course, “the police need not possess … rock-solid indicators of residence in order to form a ‘reasonable belief’ that a suspect resides at a given place.” Graham, 553 F.3d at 13. But we have seen no case finding Payton’s first prong satisfied on evidence as thin as the evidence here. The information known to the officers suggested that Brinkley may have stayed temporarily in several places. The officers, however, investigated only one. Though the officers developed a well-founded suspicion that Brinkley might have stayed in the Stoney Trace apartment at times, they failed to establish probable cause that he resided there. And because the officers entered the apartment pursuant solely to the authority of the arrest warrant, under Payton and its progeny, their entry was unlawful.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)