Important Second Circuit decision on executing arrest warrants and the Payton/Steagald dilemma

Last month, I posted on the important Fourth Amendment question regarding the standard for determining whether police have “reason to believe” a suspect is inside a particular residence, for purposes of executing an arrest warrant pursuant to Payton v. New York.  The United States Court of Appeals for the Second Circuit recently issued an important ruling on this and a related question, though in a slightly different factual context.  The opinion in United States v. Bohannon is here.

Law enforcement in Bridgeport, Connecticut had been investigating the Trumbull Gardens Organization (TGO) for narcotics and gun trafficking.  They had an arrest warrant for Jonathan Bohannon, and believed that he was at the home of Shonsai Dickson.  Her home was at 34 Morgan Avenue, though Bohannon lived at 103 Crestview Drive – two miles separated the residences.  FBI Special Agent Zuk made this determination based on several pieces of information provided by other law enforcement sources.

As the court described the information: 1) visual surveillance gave no indication that Bohannon was at his own home; 2) cell-site data from Verizon Wireless showed that his cell phone was used in a location that did not include 103 Crestview Drive; 3) cell-site data showed inactivity after 2:38 a.m., which led Agent Zuk to conclude that Bohannon had retired for the night somewhere other than his home; 4) the cell-site data showed only one address to which Bohannon had been linked, which was the Morgan Avenue home; 5) Dickson was known to the FBI because she was the lessee on an apartment where TGO members sold heroin; 6) visual surveillance showed a car registered to Dickson parked in front of Bohannon’s home only two weeks earlier; and 7) law enforcement saw Dickson’s car parked outside of the Morgan Avenue home on the day of the planned arrest.

Agents had an arrest warrant for Bohannon, but no warrant of any kind for Dickson.  They entered Dickson’s home through an unlocked door, found Bohannon in Dickson’s bedroom, and arrested him.  Later, and eventually with Dickson’s consent, agents seized crack cocaine and cash from under her bed; more crack cocaine, money, and a scale from a dresser; and three firearms and ammunition from a closet.  The court also noted that Bohannon helpfully shouted, “it’s all mine, don’t worry about it.”

Bohannon was indicted on a variety of federal drug and gun charges.  He moved to suppress the evidence seized from Dickson’s home and car.  The district court agreed in part and suppressed the evidence obtained inside the apartment (though not the car, holding that Bohannon had no reasonable expectation of privacy there).

On a pre-trial appeal by the Government, the Second Circuit vacated the suppression order.  The court agreed with the district court that no search warrant was necessary.  Recall that in Payton, the Supreme Court held that an arrest warrant is required to arrest someone in the home, absent exigency or consent, and where there is reason to believe the suspect is within.  A search warrant is not required under those circumstances.  A search warrant is required, however, when police wish to enter the home of a third-party, because the third-party’s interests would not be adequately protected by the arrest warrant for the suspect.  See Steagald v. United States.

Here, the agents violated Dickson’s rights under Steagald.  But Dickson is not the complaining party here; Bohannon is.  And the Supreme Court has never decided whether the subject of the arrest warrant (here, Bohannon) can object under Steagald; if not, then only the third-party (here, Dickson) can do so.  The Second Circuit therefore decided that issue and, consistent with the holdings of eight other federal circuits, held that the subject of the arrest warrant cannot invoke the protections of Steagald.

Having held that Payton, and not Steagald, applies, the court proceeded to determine whether the agents had “reason to believe” that Bohannon was at the Morgan Avenue home.  Recall that in my previous post on this subject, the Third Circuit concluded that “reasonable belief” equates to “probable cause.”  But I also noted that a few circuits had concluded otherwise, saying that the standard is less than probable cause.  The Second Circuit is one of those minority circuits, and here held that on this lesser standard, the agents had sufficient reason to believe that Bohannon was there.  Citing the information available to the FBI, the court said “the totality of these facts easily elevated such a suspicion well above the level of a hunch. Viewed in their totality, and in a commonsense manner, the record facts provided an articulable, objective reason to believe Bohannon might then be present in Dickson’s apartment.”

As I indicated previously, there is such a significant split of authority on the “reason to believe” standard that I am confident the Supreme Court will be presented with the opportunity to resolve the split.  Moreover, the Bohannon case would present the Court with an additional opportunity to resolve the uncertainty over whether the subject of an arrest warrant can claim the protections of Steagald.  This is essentially a standing problem (or what used to be viewed under the “standing” nomenclature).   The question is whether the suspect (the subject of the arrest warrant) can assert the protections of a case that was designed to protect the interests of the third-party in whose home he is found.  The Second Circuit here said the suspect has no greater rights in the third-party’s home than he does in his own home, where a search warrant would not be necessary (given the arrest warrant, see Payton).

One might argue that in light of the fact that social guests have reasonable expectations of privacy in the home of their host, they should be able to claim the heightened protections of Steagald.  But why should this fact matter?  The suspect also has an expectation of privacy in his own home, yet is not entitled to the protections of a search warrant there as long as a valid arrest warrant exists.  In other words, the arrest warrant suffices to protect the suspect regardless of his location.  As Steagald recognizes, the same cannot be said of the third-party in whose home the subject is found or in whose home the police are looking.  I think there is therefore substantial merit in the Second Circuit’s holding in this regard, though I also think it is worthy of clarification from the Supreme Court.

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