In Payton v. New York (1980), the Supreme Court held that for an arrest inside of a home, the Fourth Amendment requires an arrest warrant, absent exigency or consent. The Payton Court further stated that the situation did not require a search warrant because the arrest warrant, which requires probable cause, provides sufficient limited authority to “enter a dwelling in which the suspect lives where there is reason to believe the suspect is within.” Payton left open the problem of arresting a suspect in the home of a third person, and the Court dealt with that issue the following year in Steagald v. United States (1981). In Steagald, the Court said that, absent consent or exigency, a search warrant is needed for the home of a third party in which the suspect might be a guest.
Now, what if the police mistakenly go to a home believing that the suspect lives there, only to find that it is the home of a third party with no connection to the suspect? What standard applies?
That was the issue in United States v. Vasquez-Algarin, which the United States Court of Appeals for the Third Circuit recently decided. As the court described the case, a Fugitive Task Force in the Harrisburg, Pennsylvania area had obtained an arrest warrant for Edguardo Rivera. A law enforcement source and street informants told Deputy U.S. Marshal Duncan (who was on the Task Force) that Rivera was “staying” or “residing” at a place on North 13th Street. Duncan and other law enforcement officers went to the address and knocked, but heard movement inside and heard a phone stop ringing and a dog stop barking. They forcibly entered and saw Johnny Vasquez-Algarin, but not Rivera – Rivera did not live there and had no apparent connection to Vasquez-Algarin, who shared the apartment with two brothers.
The officers conducted a protective sweep and found sandwich baggies, a razor blade, and powder cocaine. After obtaining a search warrant, they found ammunition, unused plastic bags, small black bands, and car keys that opened a stolen car across from the residence.
Vasquez-Algarin and the brothers were indicted for various federal drug crimes. But Vasquez-Algarin moved to suppress the evidence found at his apartment, claiming that the forced entry was unconstitutional. He lost the motion and was convicted on the drug charges, but appealed to the Third Circuit. The issue was whether the officers had sufficient information to establish a “reasonable belief” that Rivera resided at the apartment, even though he in fact did not. The sub-issue here: what standard must police meet to establish “reasonable belief”?
The Third Circuit said the entry violated the Fourth Amendment. Following the lead of four circuits that have squarely addressed the issue, the Third Circuit held that “reasonable belief” means “probable cause.” (Four other circuits have held that the standard is less than probable cause, the Seventh Circuit has said it is “inclined” toward probable cause, and the Eighth and Eleventh Circuits have used “reasonable belief” as a distinct reasonableness standard). This, the court held, is consistent not only with the decisions of these other circuits, and with Payton, but also with Steagald. The holding in Steagald was meant to protect the privacy rights of the homeowner who is not the subject of the arrest. That is, the arrest warrant for the suspect is inadequate the safeguard the rights of the homeowner, who needs the additional protection of a search warrant. But to ensure that police are providing the appropriate level of protection for Fourth Amendment rights, there must be a heightened standard for ensuring that they are where they are supposed to be. Although police cannot always be 100% certain, having a probable cause standard apply will at least mean that their level of certainty is comparatively high. Consequently, according to the court, “law enforcement armed with only an arrest warrant may not force entry into a home based on anything less than probable cause to believe an arrestee resides at and is then present within the residence.”
The court then held that, applying that standard to this case, the officers lacked probable cause to believe that Rivera resided at and was present at the North 13th Street apartment. Deputy Marshal Duncan provided no specific information about the reliability or veracity of his law enforcement source or street informants who linked Rivera to this address. Also, Duncan’s trial testimony differed somewhat from his testimony at the suppression hearing. At trial, Duncan admitted that he and the others waited for awhile at the door after knocking because “the address was not the address of record for Mr. Rivera.” And the mere fact that they heard movement inside the apartment did not give them probable cause to believe that Rivera was present (as opposed to someone else).
But do we really have to suppress the evidence? What about the good faith exception? The Government offered this as an alternative basis for admitting the evidence, and this struck me as a plausible – indeed strong – argument in this case. But the Third Circuit rejected it. This was not mere inadvertence or simple negligence, the court said, but rather a “deliberate decision to force entry into a home based only on vague and uncorroborated information as to whether the subject of the arrest warrant even lived there” – a proposition bolstered by Duncan’s trial testimony. And reasonably well-trained officers would have known that their actions were illegal, thus taking this case out of the good faith exception arena. This was gross negligence, at a minimum, the court said.
Still, the Third Circuit’s explanations for rejecting the good faith exception here seem to me to be somewhat thin. The “deliberate decision” here was based on bad information from third parties, just like the “deliberate decision” to stop and arrest the suspect in Herring v. United States, where police acted on false, outdated information provided by a county warrant clerk. Yet the Court in Herring allowed the evidence and did not find gross negligence on the part of the government actors. And there is no real discussion of the Supreme Court’s other cases on reasonable mistakes by law enforcement – cases like Maryland v. Garrison and Heien v. North Carolina – that tend to favor the government in these kinds of situations. Perhaps that is because it could be said that the mistake here was an unreasonable one, but I think this requires more explanation than the court gives.
This case presents an interesting issue that requires some clarification from the Supreme Court. I would expect the Solicitor General’s Office to seriously consider a cert petition in this case. And I would expect the Court to seriously consider granting review on this subject matter – not just because the petition would come from the OSG, but also because there is a significant split of authority among the circuits on the probable cause standard, and because the Court has not elaborated upon the standards for in-home arrests in over 30 years. The Court might also be interested in considering whether this kind of a mistake merits application of the good faith exception, though I could see the Court being more interested in the substantive violation here than the suppression issue (and I agree with the Third Circuit that Deputy Marshal Duncan’s testimony at trial did not help the Government on this matter). So keep an eye on this case, or at least one like it.