Joanne Joyce, Individually and as of the Estate of James D. Joyce v. Town of Tewksbury, Massachusetts, John R. MacKey Alfred Donovan and Robert Budryk

SELYA, Circuit Judge, with whom STAHL, Circuit Judge, joins

(dissenting).

Though the Fourth Amendment has fallen on hard times, a woman’s home remains her castle. The en banc court, seeking cover *25 under the doctrine of qualified immunity (a doctrine which, as I understand it, was neither briefed nor argued to the panel), effectively condones an unconstitutional encroachment on the sanctity of the home. Although I applaud the withdrawal of the panel opinion, I cannot in good conscience join the opinion of the en banc court; that opinion admittedly edges closer to the holding demanded by clearly established law, but stops short of adhering to it and, thus, perpetuates a constitutionally intolerable result. Respectfully and regretfully, I dissent.

As the en bane court faithfully relates, the doctrine of qualified immunity protects state actors whose actions are reasonable, if mistaken. But qualified immunity does not shield violations of clearly established constitutional principles' merely because the specific factual situation in which a violation arises has novel features. As the Supreme Court recently noted in the immunity context, “general statements of the law are not inherently incapable of giving fair and clear warning, ... a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has not previously been held unlawful.” United States v. Lanier, — U.S.-, -, 117 S.Ct. 1219, 1227 , 137 L.Ed.2d 432 , - (1997) (citation, brackets, and internal quotation marks omitted). This is exactly such a ease.

In the absence of exigent circumstances— and nothing in the instant record suggests any exigency, let alone demonstrates exigency to an extent that might carry the day on summary judgment — the Fourth Amendment prohibits a warrantless, non-consensual entry by the police into a suspect’s home in order to arrest him. See Payton v. New York, 445 U.S. 573, 576 , 100 S.Ct. 1371, 1374-75 , 63 L.Ed.2d 639 (1980). Of course, once the police procure a valid arrest warrant, they may enter the suspect’s home for the limited purpose of effecting the arrest. See id. at 603 , 100 S.Ct. at 1388-89 . But even then, the police may not enter a third person’s home without consent, a search warrant (in contradistinction to an arrest warrant), or exigent circumstances. See Steagald v. United States, 451 U.S. 204, 205-06, 212-15 , 101 S.Ct. 1642, 1644-45, 1647-49 , 68 L.Ed.2d 38 (1981).

In this case the police transgressed the clearly established rule laid down by the Steagald Court. The plaintiff, Joanne Joyce, was not herself a suspect. Yet the defendant officers entered her home without her consent, without a search warrant, and in the absence of any exigent circumstances. To be sure, the defendants had an arrest warrant for the plaintiff’s son, Lance Joyce, but that is scant consolation because Lance did not live in his mother’s home.

In stitching together a qualified immunity defense from this poor-quality cloth, the en banc court relies heavily — indeed, almost exclusively — on United States v. Santana, 427 U.S. 38 , 96 S.Ct. 2406 , 49 L.Ed.2d 300 (1976). The court’s reliance strikes me as misplaced. Santana is an “exigent circumstances” case; it stands only for the proposition that when the police confront a suspect whom they have probable cause to arrest in a public place, and the suspect.subsequently flees into her own home, they may pursue and arrest her. See id. at 42-43 , 96 S.Ct. at 2409-10 . That proposition has no application here for two reasons (each of which is independently sufficient to defenestrate the en banc court’s reasoning).

First, under Steagald , warrantless non-consensual searches of a third person’s home are only excused by exigent circumstances. 451 U.S. at 205-06 , 101 S.Ct. at 1644-45 . Santana involved exigent circumstances: the hot pursuit of a fleeing suspect from a public place into a private one. 427 U.S. at 42-43 , 96 S.Ct. at 2409-10 . In this case, by contrast, there is simply no evidence of any need for pursuit — hot, cold, or lukewarm. Certainly, the mere fact that Lance Joyce, prompted by police action, moved from one part of his mother’s home to another did not create any cognizable exigency. See United States v. Curzi, 867 F.2d 36, 40-43 , 43 n. 6 (1st Cir.1989) (explaining that police officers cannot use exigent circumstances that they have created to justify a warrantless search).

Second, and equally important, the record is pellucid that Lance was not in a public place when the officers first confronted him; *26 although he opened an interior door, he remained completely within the house and kept an exterior weather door between himself and the officers entirely shut. While the en banc court blithely asserts that Santana does not turn on whether the individual whom the police desire to apprehend is inside or outside a house when the first contact occurs, this distinction makes every bit of difference. 3 The rule prohibiting warrantless invasions of third parties’ homes emerged in Steagald , a case that followed and interpreted Santana . Rather than extending Santana, Steagald 451 U.S. at 214 n. 7, 222, 101 S.Ct. at 1648 n. 7, 1652-53, reinforces Pay-ton, a ease in which the Supreme Court concluded that “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” 445 U.S. at 585 , 100 S.Ct. at 1379 (citation omitted). Consequently, “the Fourth Amendment has drawn a firm line at the entrance to the house.” Id. at 590 , 100 S.Ct. at 1382 . The Constitution does not equivocate on this point. See United States v. Berkowitz, 927 F.2d 1376, 1388 (7th Cir.1991) (“Payton did not draw the line one or two feet into the home; it drew the line at the home’s entrance.”); State v. Morse, 125 N.H. 403 , 480 A.2d 183, 186 (1984); 3 W. LaFave, Search and Seizure § 6.1(e) (3d ed.1996). Nor should we.

In sum, I believe that the officers’ entry into a third party’s home in the absence of consent, a search warrant, or exigent circumstances plainly violated Steagald and thus violated the homeowner’s clearly established Fourth Amendment rights. See United States v. McCraw, 920 F.2d 224, 228-29 (4th Cir.1990) (rejecting use of Santana when door to dwelling was only partially opened from within). By hedging on this point, the en banc court not only denies the plaintiff her day in court but also invites the proliferation of such incidents. Since we will be seen as sanctioning that which we are unwilling to condemn, I respectfully dissent.

. Recent Supreme Court case law confirms that police action directed at individuals within the confines of a dwelling is subject to intense constitutional scrutiny. The constitutional requirement to "knock and announce,” established in Wilson v. Arkansas, 514 U.S. 927, 927-31 , 115 S.Ct. 1914, 1915-16 , 131 L.Ed.2d 976 (1995), pertains only when the subject of the arrest warrant is within a dwelling. The elevation of this requirement to constitutional status can only be understood in terms of the special protection granted those persons who are within a private home's confines when the police first arrive on the scene.