# Brief for Appellee — Payton v. New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0430%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Appellee - **Published:** January 1, 1980 - **Citation:** 445 U.S. 573 ## Text IN THE Supreme Cot of the United States October Term, 1978 : No. 78-5420 —— THEODORE PAYTON, Appellant, v. NEW YORK, agile No. 78-5421 OBIE RIDDICK, Appellant, v. NEW YORK, Appellee. Appeals from the New York Court of Appeals BRIEF FOR APPELLEE RosBert M. MorGENTHAU District Attorney New York County 155 Leonard Street New York, New York 10013 (212) 553-9000 Joun J. SANTUCCI District Attorney Queens County 125-01 Queens Boulevard Kew Gardens, New York 11415 (212) 520-2092 Attorneys for Appellee Peter L. ZIMROTH Chief Assistant District Attorney, New York County Henry J. STEINGLASS BRIAN ROSNER VIVIAN BERGER Assistant District Attorneys, New York County Of Counsel TABLE OF CONTENTS Questions Presented Statement of the Case ... Payton v. New York, No. 78-5420 . The Pre-Trial Hearing and the Decision on the Motion to Suppress The Investigation that Led the Officers to Payton’s Apartment on January 15, 1970 January 12, 1970 . January 13, 1970 January 14, 1970 é January 15, 1970 The Trial, Conviction, and Affirmance by the Appellate Division Riddick v. New York, No. 78-5421 | The Pre-Trial Hearing and Decision on the Motion to Suppress The Guilty Plea, Sentence and Affirmance by the Appellate Division _ ‘ ’ Opinion of the New York Court of Appeals Summary of Argument Point I—When there is probable cause to believe that a person has committed murder (Payton) or armed robbery (Riddick), the Fourth Amendment does not prohibit a police officer from arresting that person in his dwelling during the daytime without an arrest warrant ......00000000.00.0000000..... PAGE 18 21 26 be | A. The Fourth Amendment was intended to re- affirm the common law principles governing searches and arrests which, though protecting the sanctity of the home, did not require an arrest warrant before a peace officer could make an arrest for a felony in a dwelling 1. The Common Law: Peaceable Entries 2. The Common Law: Forcible Entries 3. The Events Which Led to the Adoption of the Fourth Amendment 4, Acceptance of Common Law Principles in RIN oo es ne ee . The long-standing and widespread acceptance of the constable’s authority, without a war- rant, to arrest a felon in his dwelling is based A I BI I isk icici this cb css 1. An arrest warrant requirement will severe- ly interfere with the most basic function of our police—arresting the felon and bringing him before the court to answer SS ORC GETE ay A SRee RAMI 7 RT 2. Because searching a dwelling involves very different interests than arresting a felon there, a warrant requirement—necessary in the context of searches—is neither nec- essary nor advisable in the context of ON ori area Rit 5 calantavinncdickasiine coves . Even if arrest warrants are generally re- quired, Payton’s arrest without a warrant was proper because it was the result of a continu- ous and intensive pursuit of an armed killer .... PAGE 26 27 28 37 42 50 51 67 76 vias Itt PAGE Point II—Payton is not entitled to the benefit of the exclusionary rule because, when the police en- tered his apartment in January 1970, they did so under the express authority of a state statute, at a time when neither they nor any other law en- forcement official could have had any serious doubts about the legality of following the statute 81 Ca eae) Fe, tin ciea eee 92 TABLE OF AUTHORITIES Cases: Acearino v. United States, 85 U.S. App. D.C. 394, 179 Te Oe CEA Ce BO ic ee. idisnn 48, 85, 86 Aguilar v. Texas, 378 U.S. 108 (1964) 2.000... 75 Alderman v. United States, 394 U.S. 165 (1969) ........ 83 Almeida-Sanchez v. United States, 413 U.S. 266 (1973) 87 Andresen v. Maryland, 427 U.S. 463 (1976) .................. 70 Banks v. State, 265 Ind. 71, 351 N.E.2d 4, cert. denied, SRD Tie TE CASE i ee ase a 53n, 66n, 78 Barnard v. Bartlett, 64 Mass. 501, 57 Am. Dee. 123 (1068) -.c.... EASINESS iy Sy TE, SO ee a ST 43n Barnes v. State, Ind. , 378 N.E.2d 839 (1978) 53n Beckwith v. Philby, 108 Eng. Rep. 585 (1827) ............ 35n Bivens v. Six Unknown Federal Narcotics Agents, 403 Br ee ohh bn tee etnies ae ee a ee 83, 90 Brooks v. United States, 367 A.2d 1297 (D.C. 1976)... 61, 65n, 66n Broughton v. State, 37 N.Y.2d 451, 335 N.E.2d 310, 373 N.Y.S.2d 87, cert. denied, 423 U.S. 929 (1975) .....73, 90 Bumper v. North Carolina, 391 U.S. 543 (1968) ........_— 69 Burdett v. Abbott, 104 Eng. Rep. 501 (1811)... .... -29n Burns v. Erben, 40 N.Y. 453 (1869) 00...) 42n Iv PAGE Camara v. Municipal Court, 387 U.S. 523 (1967) ........ 70 Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) ............. 87 Chimel v. California, 395 U.S. 752 (1969) ...0 0... 72 Commonwealth v. Boswell, —— Mass. ——, 372 N.E. 9a: SST (1078) .......:......... _ 58n, 64, 68 Commonwealth v. Irwin, 83 Mass. 587 (1861). Acacueanea 42n Commonwealth v. LeBlanc, Mass. ——, 367 N.E. I BY siviooccessiichccesnstnsessan cae amen 53n, 64 Commonwealth v. Moran, Mass. , 045 N.H.2d 380 (1976) . Bah coli Sarath ee 53n, 66n, 78n Commonwealth v. Phelps, 209 Mass. 396, 95 N.E. 868 aces hoc esastkeseysoteiytan Geaerr~ ges in ea 47 Commonwealth v. Reynolds, 120 Mass. 190, 21 Am. Rep. 510 (1876) ..... Site Eatin, Area 43n Commonwealth v. Walker, . Mass. ——, 350 N.E. 2d 678, cert. denied, 429 U.S. 943 (1976) oie. SON, 66n Coolidge v. New Hampshire, 403 U.S. 443 (1971) .. 23, 48, 64n, 70, 86n Coyles v. Hurtin, 10 Johns. Rep. 84 (N.Y. Sup. Ct. I ose sets iceman eee 42n, 43n Crane v. State, Ind. ——,, 380 N.E.2d 89 (1978) ... 53n Crews v. United States, 389 A.2d 277 (D.C. 1978) (en banc), cert. granted, —— U.S. —— (Feb. 21, OD cits is oc elreeg eo Sa ee Dandridge v. Williams, 397 U.S. 471 (1970) .. .... 82n Davis v. Russell, 5 Bing. 354, 130 Eng. Rep. 1098 (SR tbat MOEN EN EMAC oats of aa Sco 8S 35n Dent v. State, 33 Md. App. 547, 365 A.2d 57 (1976) .. 64n Doering v. State, 49 Ind. 56, 19 Am. Rep. 669 (1874). 43n Dorman v. United States, 485 F.2d 385 (D.C. Cir. 1970) (en banc) ....... a: We cee ONES 66 Eanes v. State, 6 Humphreys 53, 44 Am. Dec. 289 (Tenn. 1845) . 5 43n Elkins v. United States, 364 U. S. 206 (1960) Ree rae 83 Entick v. Carrington, 19 Howell’s State Trials 1029 Rea Sas air onanri enn ce ee 36, 40, 41, 42, 69 PAGE Finch v. State, 264 Ind. 48, 338 N.E. 2d 629 Eat Oe ee a ie 53n, 66n Franks v. Delaware, —— U.S. ——, 57 m Kid.2d 667 heise sidieddsdasaiaccivieesavessace asses 75 Gerstein v. Pugh, 420 U.S. 103 (1975) ...................27, 68, 72 Givhan v. Western Line Consolidated School District, — U.S. ——, 58 L.Ed.2d 619 (1979) ........... : 81 Gray, Apelication of, 155 Mont. 510, 473 P.2d 532 EG Lhe gd cbaitadecess4ccdeveelvacsssscnsveosese 75 Hawley v. Butler, 54 Barb. 490 (N.Y. Sup. Ct. 1868) 43n Hoffa v. United States, 385 U.S. 293 (1966) ... 55 Holley v. Mix, 3 Wend. 350 (N.Y. Sup. Ct. 1829) .... 43n Huckle v. Money, 95 Eng. Rep. 768 (1765) ............... 40 James v. Superior Court of Tulare County, —— Cal. App. 3d ——, 151 Cal. Rptr. 270 (1978) 58, 66n Johnny V. v. People, 85 Cal. App. 3d 120, 149 Cal. ee eee 62, 66n Johnson v. United States, 333 U. S. 10 (1948) - cocsees 48, 49 Jones v. United States, 357 U.S. 493 (1958) ......... 23. 48 Kelsy v. Wright, 1 Root’s Conn. Rpts. 83 (1783) 44 Ker v. California, 374 U.S. 23 (1963) ........... 49,71 Killian v. United States, 368 U.S. 231 (1961) 6 Laasch v. State, 84 Wis. 2d 587, 267 N.W. 2d 278 a Ne ic Li ci eséctech es 55 Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966) _ 90 Leach v. Three of the King’s Messengers, 19 Howell’s State Trials 1001, 97 Eng. Rep. 1075 (1765) |... 41, 42 Lemon v. Kurtzman, 411 U.S. 192 (1973) 00000000... 87 Ludlow v. State, 262 Ind. 266, 314 N.E. 2d 750(1974)... 53n VI PAGE Marcus v. Search Warrants, 367 U.S. 717 (1961) ........ 38, 41 McDonald v. United States, 335 U.S. 451 (1948) .. 77 McLennon v. Richardson, 81 Mass. 74, 77 Am. Dee. 353 a aE en Ie eB aeee ae Michigan v. Tucker, 417 U.S. 483 (1974) 00... 83 Miller v. United States, 357 U.S. 301 (1958) .............. 40, 71 Mincey v. selec — U.S. ——, 57 L. Ed. 2d 290 (1978) . oi ecu, Se Morales v. Ne ew - York, 396 U. S. 102 (1969) . PONE ed — 80 Morrison v. United States, 104 U.S. App. D.C. 352, 262 F.2d 449 (D.C. Cir. 1958) 200... 7 86n New York Trust Co. v. Eisner, 256 U.S. 345 (1921)... 50 North v. People, 28 N.E. 2d 966 (Ill. 1891) 0... _ 44n Olmstead v. United States, 277 U.S. 438 (1928) ........ 84 Pallett v. Thompkins, 10 Wash. 2d 697, 118 P. 2d 190 [8 SRAM Sips MOREE A em” Oe TR Oe a Se 73 Pawloski v. State, —— Ind. ——, 380 N.E.2d 1230 0: RES TE Ree ih By sh Neen 53n, 58, 65n, 66n, 78n People v. Burrill, 391 Mich. 124, 214 N.W.2d E:T ERO SY Rein ae Siege 58, 64n People v. Ellers, 82 Cal. App. 3d 809, 147 Cal. Rptr. 433 (1978), hearing granted .2.....00.....cccocccccececn. 61, 62 People v. Hoinville, —— Colo. ——, 553 P.2d 777 (1977) (en bane) People v. Loria, 10 N.Y.2d 368, 179 N.E. 2d 478, 223 Ri I ED oti ee ice ceo ee 85 People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971)... 64n People v. Peterson, 85 Cal. App. 3d 163, 149 Cal. Rptr. 198 (1978) ............. RR IOs SS (Oe a AR NT Oe 66n People v. Robertson, —— Colo. App. ——, 577 P.2d ae eie ee 210 neue eC ane ae ees OD 64n People v. Saars, ——- Colo. ——, 584 P.2d 622 (1978) IS Ser tig Woy oa a Ce NN Fe oe 78n Vir PAGE People v. Superior Court, 68 Cal. App. 3d 780, 137 Cal. Rptr. 586 (1977) 66n People v. Wolgemuth, 69 Ill. 2d 154, 370 N. E. 2d 1067 CORTE 5s POE SS 7 sy aac cacuen 64n Randall’s Case, 5 City Hall Record 141 (N.Y. Ct. of Oyer and Terminer 1820) 0000s 46n Reginald, B., In re, 71 Cal. App.3d 398, 139 Cal. Rptr. 465 (197 7) 66n Reuck v. McGregor, 32 N.J.L. 70 (N.J. Sup. Ct. 1866) 43n Roaden v. Kentucky, 413 U.S. 496 (1973) x 77 Rohan v. Sawin, 59 Mass. 281 (1851) a ee Rush v. Buckley, 100 Me. 322, 61 A. 774 (1905) ee Sabbath v. United States, 391 U.S. 585 (1968) 35n, 49, 71 Salvador v. United States, 505 F.2d 1348 (8th Cir. 1974) . 64n Samuel v. Payne, 1 Doug. 399, 99 Eng. Rep. 230 (1780) 35n Scott K., In re, 75 Cal. App. 3d 162, 142 Cal. Rptr. 61 (1977), hearing granted (1978) 66n Semaine’s Case, Co. Rep. 91a, 77 Eng. Rep. 194 (1603) } 29, 30 Shanley v. Wells, 71 Ill. 78 (1873) | 42n, 45 Smith v. County of Nassau, 34 N.Y.2d 18, 311 N.E.2d 489, 355 N.Y.S.2d 349 (1974) 73 Smith v. United States, 103 U.S. App. D.C. 48, 254 F.2d 751, cert. denied, 357 U.S. 937 (1958) 86n Spinelli v. United States, 393 U.S. 410 (1969) Wie | State v. Ferguson, 119 Ariz. 55, 579 P.2d 559 (1978) (en banc) Pr te. Fem State v. Girard, 276 Or. 511, 555 P.2d 445 (1976) (en bane) | 64n State v. Lashley, 306 “Minn. 224, 236 N.W.2d 604 (1975), cert. denied, 429 U.S. 1077 (1977) | 64n State v. Linkletter, 345 So.2d 452 (La.), cert. denied, 434 U.S. 1016 (1978) 63n Vice PAGE State v. Luellen, 17 Wash. App. 91, 562 P.2d 253 (1978) ...iceiive eee ence ae State v. Max, 263 N.W.2d 685 (S.D. 1978) . 64n State v. MeMillin, 206 Kan. 3, 476 P.2d 612 (1970)... 75 State v. Perez, 277 So.2d 778 (Fla.), cert. denied, 414 U.S. 1064 (1973) _. | 63n State v. Smith, 1 N.H. 346 (1818) . 45 Stine v. Shuttle, 134 Ind. App. 67, 186 N.&.2d 168 (1962) (en banc) | , 12, 73 Stuck v. State, 255 Ind. 350, 264 N. B£.2d 611 (1970)... 65n Taylor v. Strong, 3 Wend. 384 (N.Y. Sup. Ct. 1829). 42n, 43n United States v. American Railway Express Co., 265 U.S. 425 (1924) . MR re 2 OE Cae . $2n United States v. Brown, 540 F.2d 1048 (10th Cir.), cert. denied, 429 U.S. 1100 (1977) ; Licks oe United States v. Calandra, 414 U.S. 338 (1974)... 83 United States v. Campbell, 581 F.2d 22 (2d Cir. 1978) .... 57, 61, 65n, 66n, 78 United States v. Ceceolini, 435 U.S. 268 (1978) .... 83 United States v. Janis, 428 U.S. 433 (1976) . 83 United States v. Jarvis, 560 F.2d 494 so Cir. 1977), cert. denied, 435 U.S. 934 (1978) . fe 57n United States v. Johnson, —— F.2d —— (9th Cir. i December 1%, 1998) .....i.1.)...,488" aie 64 United States v. Kulsear, 586 F.2d 1283 (8th Cir. 1978) 0.036%. 65n United States v. New York ‘Telephone Co., 434 U. S. MEO (BOTT) o.eceesicteicc Gp ape 82n United States v. Peltier, 422 U.S. 531 (1975) ..._ 83, 87, 88 United States v. Prescott, 581 F.2d 13438 (9th Cir. TQTB) ...ni. sci sittin Lint ee 64, 79 United States v. Robinson, 414 U.S. 218 (1973)... 67 United States v. Santana, 427 U.S. 38 (1976) 23, 24, 50, 51, 55, 68 Ix PAGE United States v. Scott, 578 F. 2d 1186 (6th Cir. 1978) 65n United States v. Shye, 492 F.2d 886 (6th Cir. 1974) .....61, 64n, 65n,78n United States v. Shye, 473 F.2d 1061 (6th Cir. 1973 ) 64n United States v. Watson, 423 U.S. 411 (1976) 18, 23, 24, 28, 36, 42n, 46n, 47, 50, 51, 55, 66, 67, 68 United States v. Williams, 573 F.2d 348 (5th Cir. 1978) Le hk ie gs CO RE OSE I ET Vale v. Louisiana, 399 U.S. 30 (1970) 72 Vance v. North Carolina, 432 F.2d 984 (4th Cir. 1970) . ee .64n, 65n, 71, 78n Velovie v. City of New York, N.Y.L.J., Feb. 9, 1979, p. 12, col. 1 (N.Y. Civ. Ct.) Stee sae Wade v. Chafee, 8 R.I. 224, 5 Am. Rep. 572 (1865) ... 45 Wakely v. Hart, 6 Binn. 316 (Pa. 1814) | 44n West v. Cabell, 153 U.S. 78 (1894) ‘ 57n Whitely v. Warden, 401 U.S. 560 (1971) ies 56 Wilkes v. Wood, 98 Eng. Rep. 489 (1763) ..... 40, 41 Year Book Case, 13 Edw. IV, 9a sessecseeQQy 31, 32n Zurcher v. Stanford Daily, 436 U.S. 547 (1978) 69 Constitution: United States Constitution: Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and sei- zures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly de- scribing the place to be searched, and the per- sons or things to be seized 4 PAGE Statutes: Act of May 2, 1792, ec. 28, §9, 1 Stat. 265 cae Colo. Rev. Stat. former §16-3-102(1) (¢) pt 64n L. 1857, ¢. 569, See. 8 . A 42n L. 1958, ¢. 707, See. 1 ‘ . 46n N.Y. Crim. Proc. Law: §120.10 ......... } i 74 §120.80 .... Ba 5 atiee uke chads Sea $140.10 3 | os 14, 17, 70 §140.15 | | 14, 70, 71 §140.20 er 72, 74 §690.45 | | 70 §690.50 70 §710.60 ; an OA ad eee §710.70 | iin 17 N.Y. Code Crim. Proc.: §177 ...... 8, 4, 5, 46n §178 r 3, 4, 5, 46n, 71 §187 | th | 33n Other Authorities: Aut, Cope or Criminau Procepure (1930) .... 46n, 48 Aur, Mopet Cope or Pre-ArRgalGNMENT PRocEDURE C1976) 01:2... 19, 47n, 48, 68, 70, 85, 90 Aut, RestaTeMENT (Seconp) or Torts (1965) ........... 72 Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349 (1974) 84 Amsterdam, Search, Seizure, and Section 2255: A Comment, 112 U. Pa. L. Rev. 378 (1964)... 82 O. Barsour, A TREATISE ON THE CriImInAL Law AND CriminaL Courts oF THE State or New York (3d ed. 1883) | se . 45n J. BisHop, CriminaL PRocepune (3d ed. 1880) pee BiackstToneE’s ComMENTARIES (Andrew’s ed.) | 31, 32 Blakey, The Rule of Announcement and Unlawful Entry, 112 U. Pa. L. Rev. 499 (1964) iisspes 5 Me XI PAGE Burn, JUSTICE OF THE PEACE (1755 ed.) . deca. 4 didi vba wabieitiea aac eae 34 (1869 ed.) . nT OTR Sey Ae, PE OES 5 ..84n, 35n J. Currry, Carman an Law (3rd Amer., from 2d Lon- ee, A WI is icescorca pte clos. meee Ne ee a 33n, 34, 35n BE. Comp, Founter [merrrute .................ccccccccsccsscssessperneenes 36, 37 J. Cotsy, A Practica, TREATISE ON THE CrimINnaL Law AND Practice oF THE State or New York (1868) 46n Comment, The Legal Efficacy of Probable Cause Com- plaints i Light of People v. Ramey, 13 Calif. Weantern Es. Rov. G66) (20FE) ccc siihtcennatoind 74 M. Dauron, Country Justice (1742 ed.) ........ 28, 30, 31n, 46n Kast, PLeas or THE Crown (1806 Phila. ed.) 0000000... 33 Ex.uior’s DeBatrEes ON THE F'epERAL Constitution (1836 UGA so iikcrsiissech eae tee aii tiel eels Maen 40n F.B.I. Untrorm Care Reports ts} ERROR: M. Foster, Crown Law (3d ed. 1792) .. M. Hate, Pueas or tHe Crown (first American ed. |: ¢ RRS Oke nee iitsstssstsessesessedidy 20, Oly 32, 34n, 36 Hawkins, PLEas oF THE Crown (6th ed. 1788) ......33n, 36, 37 F’. Hearp, A Treatise ADAPTED TO THE Law anv Prac- TICE OF THE Superior Courts * * * my CriminaL Clammen: CATO 33 os siiccrckss bc ae ee 46n ‘*HisroricaL Nors,’’ N.Y. Code of Crim. Proce. ane TRSURAY “0 OG ROOD, itis ciaeescgrrctsacences A, deetas 2 police officer from arresting that person in his dwelling during the daytime without an arrest warrant? 2. In Payton, there is an additional question: is the appellant entitled to the benefits of the exclusionary rule when (1) police officers found the evidence in plain view after they entered appellant’s apartment to arrest him under the express authority of a state statute, and (2) they did so at a time (January, 1970), when neither they nor any other law enforcement official could have had any serious doubt about the legality of following the statute? Statement of the Case Payton v. New York, No. 78-5420 On Monday morning, January 12, 1970, Theodore Pay- ton, armed with a .30 caliber rifle and wearing a ski mask, walked into a gas station in Manhattan. He demanded the weekend receipts from the manager who was, working on them at his desk in the office. The manager complied but then resisted Payton’s further demand that he open the safe in the adjoining repair shop. Payton shot the manager during the struggle that followed and escaped with approx- imately $1,000. The manager died. | Intensive investigation led police officers, three days later (January 15, 1970), to Payton’s apartment at about 7:30 in the morning. When the officers arrived, a light was shining from under the door, and a radio could be heard from inside. Believing Payton to be inside, they knocked and called out, but there was no answer. The officers saw that they could not open the metal door, so they called for 3 help which came about a half hour later. Then, with crow- bars, they forced the door open and entered Payton’s apart- ment to arrest him. They entered the apartment under the explicit authority of a state statute that permitted the po- lice, without a warrant, to make such entries in order to ar- rest felons.* For almost one hundred years this statute had governed procedures for making arrests; its constitutional- ity had never been seriously questioned. The officers looked through the apartment for Payton. He was gone. However, in plain view on a stereo set in the living room the officers saw a .30 caliber shell casing which they seized. They also found three photographs of Payton wearing a ski mask, a bill of sale for a .30-30 Winchester rifle, a shotgun, and a bandolier with 14 bullets. * Cope Crim. Proc. (McKinney 1958 and Supp. 1970) : CHAPTER 1V.—ARREST BY AN OFFICER WITHOUT A WARRANT * ok $177. In what cases allowed A peace officer may, without a warrant, arrest a person, * - a 2. When the person arrested has committed a felony, al- though not in his presence; 3. When a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it; 4. When he has reasonable cause for believing that a felony has been committed, and that the person arrested has committed it, though it should afterward appear that no felony has been committed, or, if committed, that the person arrested did not commit it; eae §178. May break open a door or window, if admittance refused To make an arrest, as provided in the last section, the officer may break open an outer or inner door or window of a building, if, after notice of his office and purpose, he be refused admittance (footnote omitted ). 4 The Pre-Trial Hearing and the Decision on the Motion to Suppress Payton was indicted on March 30, 1970 for felony- murder and for intentionally murdering the gas station manager. After a four-year delay, attributable in large part to Payton’s commitment as incompetent to stand trial (A.1)* and to his requests for adjournments (T.100),** a pre-trial hearing was held on Payton’s motion to suppress the evidence seized from his apartment. Before the hear- ing, the prosecutor announced that he intended to introduce only the .30 caliber shell casing. He conceded that the other items were seized illegally because they were not found in plain view (A.3-7). Because of the prosecutor’s concession, the scope of the hearing was narrow. It did not focus on the investigation that led the officers to Payton’s apartment on the morning of January 15. Instead, it focused on whether their pur- pose in entering the apartment was in fact to arrest him and whether the shell casing was in fact seen in plain view. The judge’s rulings were similarly limited. The judge did not discuss the constitutionality of the Code of Criminal Procedure Sections 177 and 178. Although the opinion did mention that on January 14 the police learned Payton’s address and that Payton was the murderer, it did not discuss when on January 14 they first had probable cause to believe he was the killer; when on January 14 they first had probable cause to believe they knew where he lived; when they first had probable cause to believe he was * References preceded by the letter “A.” are to the Appendix. ** References preceded by the letter “T,” are to pages of the record not in the Appendix. ~~ — niet cits 2 5 at home; when they first decided to arrest him; whether, at that time, they made a decision to arrest him in his apart- ment; and if not, when they made that decision; whether the officers had time to obtain an arrest warrant; or whether there were any circumstances that might excuse their failure to do so. The judge simply found that there was probable cause to arrest Payton; that the officers entered his apartment for that purpose; that pursuant to the Code of Criminal Procedure Sections 177 and 178 they did not need an arrest warrant to make such an entry; and that once law- fully in the apartment, they could seize the shell casing which they had seen in plain view (A.39-41). Although the issue was not raised by defense counsel, the judge also ruled that the exigencies of the situation excused the officers from the statutory requirement that they announce that their purpose was to arrest the defendant. He based this ruling on his findings that (1) ‘‘a grave offense had been commit- ted ;’’ (2) ‘‘the suspect was reasonably believed to be armed and could be a danger to the community;’’ (3) there was a ‘‘clear showing of probable cause;’’ and (4) there was ‘*strong reason’’ to believe that Payton was in the apart- ment and ‘‘would escape if not swiftly apprehended’’ (A.41). Because the hearing and the judge’s findings were so limited, the proceedings on the motion to suppress do not give this Court a full picture of the investigation that led the officers to Payton’s apartment on January 15. Accord- ingly, both Payton and we refer to the testimony at the trial, which added some detail to the broad outlines revealed at 6 the suppression hearing.* In addition, in a few places we refer to police documents which were marked for iden- tification at the hearing or the trial, given to defense coun- sel, and used by them in their cross-examination of the state’s witnesses. We do so in order to indicate that even more information about the investigation could be devel- oped and to suggest why, depending on what legal principles are ultimately held to govern this case, a remand might be necessary. See Killian v. United States, 368 U.S. 231 (1961). See pp. 80-81, mfra. The Investigation that Led the Officers to Payton’s Apartment on January 15, 1970 January 12, 1970 The murder occurred at about 8:40 a.m. on Monday, January 12, 1970. The police were called, and a patrol car arrived almost immediately (T.261-63). Detective Malfer, who supervised the investigation, arrived at the gas station at about 9 a.m. He searched the scene, found two .30 caliber shell casings, called for police ballistics experts, fingerprint experts and photographers, spoke briefly with the people whe had witnessed the murder, and had them transported to the 23rd Precinct which was nearby. At the 23rd Precinct, Detective Malfer took statements from the eight people who had been at the gas station. None said he or she recognized the man (A.11, T.802-14, 982). * Indeed, based on the more detailed testimony at trial, defense counsel sought the right (which was granted but not ultimately ex- ercised), to reargue the admissibility of the shell casing (T.837-38). 7 In fact, two of the eight did know and recognize the killer in spite of his disguise. The first, Melvin Gittens, was at the gas station with his sister and brother-in-law. They were waiting to meet Gittens’ lawyer (Robert Stein), before all of them went to the 23rd Precinct where Gittens was to surrender on a charge that he had killed a man in a barroom fight the previous Friday, January 9 (T.284, 291, 294, 337-38, 454-56). Gittens recognized Payton because the two had known each other all their lives, had attended the same junior high school, had seen each other frequently thereafter when they were growing up in the same neigh- borhood, and, during the year preceding the murder, had seen each other two or three times a week at local bars (T.285-86, 306-18, 331-32, 365-66). At the 23rd Precinct, Gittens told his sister that he knew the killer and, after some thought about the killer’s last name, told her the name was ‘‘Teddy Pane’’ (T.413-14, see also T.365). Stein told Gittens that this information might be helpful on his own case, and that he, Stein, wanted to handle the divulgence of that information (T.462). When Gittens spoke to the police that morning, he gave them an account of what he had seen. He did not tell them he knew the killer (T.292-93, 304, 813-14).* * Raymond Williams, an attendant at the gas station, was the second person who recognized Payton on January 12. The two had known each other for more than a year and had met more than a dozen times in a bar at which Williams had worked (T.495, 527-28). A few weeks before the murder, Williams was at the gas station when Payton had a dispute with another attendant. Williams settled the dispute (T.494, 495-98). Williams did not identify Payton to the police on January 12. He had an extensive criminal record, had not told his employer about it, and was afraid of being exposed if he got “involved” in this case. It was not until January 27, when Detective Malfer re-interviewed Williams, that he identified the killer as Payton (T.498-501, 541-43, 545-53). January 13, 1970 The day after the murder, January 13, 1970, Detective Malfer spent going back to the gas station, looking for more evidence and for other possible witnesses (T.814). January 14, 1970 Meanwhile, Stein had arranged a meeting at which his client would divulge his information. On the morning of January 14, Stein and Gittens met with Detective Malfer at the District Attorney’s Office. There, Gittens told the detective the name of the killer (T.293, 304, 379-83). Al- though not explicitly stated in the record, it is likely that Gittens gave the name ‘‘Teddy Pane’’ since that is the name by which he knew the killer (see T.413-14).* Thus, for the first time Detective Malfer had a name (albeit not the correct one)—but not a face, a body, or an address to go with it. When Detective Malfer’s interview with Gittens ended is not expressly stated in the record. However, the record does indicate that the interview must have lasted until early afternoon, because, as Gittens testified, he was at the District Attorney’s Office ‘‘a good while,’’ and he missed lunch (T.381). In any event, after the interview Detective Malfer received a call from the 23rd Precinct directing him to the 40th Precinct in the Bronx, where he was to meet someone with information about the murder (T.816). At the 40th Precinct, Detective Malfer met Jesse Leggett, a friend of Payton’s. Again, the time of this meet- * Detective Malfer’s notebook for this case contains a summary of this interview and has the following entry: “Knows perpetrator as Teddy Paine—Payne” (T.297, People’s Exh. 4F for Id., Entry for Wed. Jan. 14, 1970, 10 a.m.). ee ee 9 ing is not stated explicitly. in the record but can be recon- structed from Leggett’s testimony about what he had done earlier that day. At about 10:30 or 11 a.m. Leggett was at a bar in the Bronx. He was picked up by the Nassau County Police and taken to Nassau County. He was a suspect in a robbery there (as was Payton) and was questioned by the Nassau Police for one to one and a half hours. Then Leg- gett was brought back to the 40th Precinct in the Bronx where Detective Malfer met him (T.722-25, 728-32). Thus, Leggett’s interview with Detective Malfer took place, at the earliest, in the mid-afternoon. Leggett gave Detective Malfer the following account: Two days earlier, on January 12, 1970, Leggett had heard about the murder from his friend, Raymond Williams, the gas station attendant. Leggett bought a copy of the early edition of the next day’s Daily News, which contained an article describing ‘‘the slaying of a service station manager in East Harlem * * * [who] was cut down at nine a.m. by two shots in the chest from a rifle fired by [an approxi- mately 30 year old] thug’’ (T.666, 676-77, 794-796A). At about 9:15 that evening (January 12), ‘‘Teddy’’ came in and said, ‘‘Jessie, I got a problem. * * * I did something I’m sorry for. * * * I hit a gas station.’’ Leggett then showed ‘‘Teddy’’ the article about the incident in the Daily News and asked, ‘‘[W]Jas that him?’’ ‘‘Teddy’’ responded, ‘*Yes’’ (T.664-65, 670-71).* * The signed statement Leggett gave to Detective Malfer on Jan- uary 14 (T.678, People’s Exh. 4R for Id.) is quoted below: On Monday evening, about 9 or 10 PM, I stopped at the Shannon View Bar on Cypress Avenue, between 138 Street, and 139 Street. Teddy came in, came over to me, said “I did something today that I am sorry for. I said, “what hap- pened.” He said “I can’t tell you.. I said “what did you (footnote continued on next page) 10 After giving his statement, Leggett drove with Detective Malfer through the Bronx and pointed out the five or six story building where ‘‘Teddy”’ lived. Neither the police nor Leggett went into the building (T.671-72, 783-90, 816- 17), but Leggett told Detective Malfer that Payton lived on the top floor (A.11, 34). They returned to the 23rd Pre- cinct in Manhattan where Leggett was shown a series of photographs. At the trial, because of a defense objection, Leggett did not testify about the photographic array (T.817). But Detective Malfer’s notebook contains the fol- lowing entry: 1/14/70-Wed: 7:25 PM In 23rp Sqd office, six (6) photos, numbered on back shown to Jesse Leggett, he picked #+4—which was photo of Teddy Payton, and said, ‘‘that is the one who told me, he was sorry for shooting the guy in Gas station.’’ (A.20, T.12-13, 829-30, People’s Exh. 2 for Id.). Undoubtedly, the police must have had the name ‘‘ Teddy Payton’’ before Leggett was shown the photographic array ; otherwise they would not have had Payton’s photograph in do.” He said “I shot a guy, but I didn’t mean to do it, I swear I didn’t mean to do it, I swear I didn’t want to hurt anybody.” So I said again, ”what ed?” He said I hit a gas station and the guy grabbed the gun by the muzzle, I didn’t mean to shoot him. I showed him a copy of the Daily News. he read the article, said again, sorry, I didn’t mean to do it. Actualy, he read the article before he told me what had happened. I told him, go home and get some sleep. He said I can't sleep I’m too worried. I said, “what are you going to do.” He said “I’m going to go some-where. In a few minutes he left. This was the last time I saw him. The reason I giving this qutocation I think teddy is mixed up and I dont want to see him hurt because he is a very nice guy. /s/ Jesse James Leggett ( Notebook Entry for Wed. Jan. 14, 1970). et } 11 the array. How or at what time they first learned the name, however, is not in the record. Perhaps Leggett had men- tioned it earlier. Perhaps the police did a check of utility companies after Payton’s building was pointed out by Leg- gett. Or perhaps they learned the name in another way not suggested by the record. In any event, after the photo- graphic array, the police had, for the first time, connected the murder with the name of Theodore Payton, a face, and an address. The record does not state what Detective Malfer did after Leggett identified Payton’s picture.* There is noth- ing to indicate that he and his fellow officers immediately formulated a plan to arrest Payton in his apartment the next morning. True, by then, the officers had probable cause to believe Payton was the murderer; and someone claiming to be a friend of Payton’s had pointed out where he lived. However, they also had some reason to believe he might not be there. Payton knew several people at the gas station and must have been worried that they aiso recog- nized him. Going home after the murder would not have been his safest course.** Moreover, in no event would the officers have wanted to arrest Payton in his apartment without doing much more planning and work. A private dwelling is a very dangerous place—perhaps the most dangerous place—in which to arrest a murderer who may still have his weapon. Before deciding to arrest him * Detective Malfer’s memorandum book indicates for January 14: “From Duty 10:30 PM.” (T.830, People’s Exh. 4T for Id.). ** According to Leggett’s statement contained in Detective Mal- fer’s notebook, Payton had said on the evening of January 12 that he was worried, could not sleep and was going “some-where.” See note at pp. 9-10, supra. 12 there, the officers would have wanted to explore the possibil- ity of finding him somewhere else. At a minimum, if they could not find another place to arrest him, they would have wanted to know more about the building and his apartment in order to minimize the danger to themselves, to Payton, and to innocent bystanders. Who else lived in the building? In his apartment? Was there a floor plan of the apartment available? What would his possible escape routes be? In fact, the officers did go to arrest him in his apartment the next morning, January 15, at 7:30 a.m., which itself is a strong indication that they had not formulated a plan the night before. If they had, it is likely that they would have arrived earlier, before sunrise, indeed before daylight. Then the officers would have been able to knock on the door at the first light—a relatively less dangerous time because it permits an arrest during daylight but still at an hour when the defendant is likely to be surprised.* January 15, 1970 Five police officers arrived at the building at 7:30 a.m. (A.12, T.817). ‘‘[E]very angle’’ was covered, although De- tective Malfer, testifying four years after the events, could not recall precisely where each officer was stationed ('T.898- 904). As Detective Malfer approached the door of the apartment, he saw a light from underneath the door and heard a radio from inside. One of the officers knocked * The fact that the officers did not, on the evening of January 14, formulate a plan to arrest Payton in his apartment is also suggested by Detective Malfer’s memorandum book entry for January 15: Jan. 15, 1970—Special assigned U.F. 61 #491 (Homicide) Jn 23rp Squad office 7 AM under the Command of Sgt. Hoarty: Re: Information Perpetrator Teddy was at his home: 682 E. 141 St. 5C (T.830, People’s Exh. 4T for Id.) (emphasis added). eS ee ee ee eee 13 on the door and called out, but there was no answer. The officers saw that they could not open the metal door, so they called Emergency Services, which arrived about a half hour later. With crowbars, they forced open the door and entered (A.12-14, 24-27, T.817-19, 899-902). They looked through the apartment for Payton, but he was gone. However, the officers saw in plain view on the top of a stereo set a .30 caliber shell casing which they seized. In addition, they found a shotgun and bandolier with 14 bullets in a clothes closet or a linen closet. Either in a drawer or on top of a bureau, the officers found three pictures of Payton in a ski mask and a receipt for a .30-30 Winchester rifle (A.15, 17-18, 28-30). All but the shell casing was suppressed on consent of the prosecutor before the suppression hearing. The Trial, Conviction, and Affirmance by the Appellate Division At trial, Gittens and Williams, the two people who knew Payton and recognized him at the gas station, testified that he was the murderer (T.284-88, 365, 492). In addition, Leggett testified that on the evening of the murder, Payton had come to a local bar and admitted committing the crime (T.663-67, 676-77). Finally, there was testimony linking Payton with the murder weapon. Ballistics experts tes- tified that the .30 caliber shell casing found in Payton’s apartment three days after the murder was fired from the same rifle as were the fatal shots (T.806-13, 819-23, 1010- 15). A gun dealer from upstate New York testified that he had sold a .30-30 Winchester rifle to Payton about two months before the murder (T.592-97, 608, 618-19, 634). 14 On June 21, 1974, the jury convicted Payton of felony murder but could not reach a verdict on the count charging intentional murder (A.1, T.1267, 1303-05). On October 29, 1974, he was sentenced to a term of imprisonment of from 15 years to life (A.1). On December 16, 1976, the Appel- late Division unanimously affirmed the judgment without opinion (A.42-43). Riddick v. New York, No. 78-5421 At about noon on March 14, 1974, police officers went to Riddick’s apartment to arrest him on several robbery charges. They knocked on his door, which was opened by his son, saw Riddick sitting up in bed with his hands under a sheet, walked in, announced their authority, and arrested him.* In a search incident to that arrest, the officers dis- * Crim. Proc. Law (McKinney 1971) : $140.10. Arrest without a warrant; by police officer; when and where authorized 1. * * * [A] police officer may arrest a person for: * * * (b) A crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise. $140.15. Arrest without a warrant; when and how made by police officer 1. A police officer may arrest a person for an offense, pur- suant to section 140.10, at any hour of any day or night. * * * 4. In order to effect such an arrest, a police officer may enter premises in which he reasonably believes such person to be present, under the same circumstances and in the same manner as would be authorized, by the provisions of subdivisions four and five of section 120.80, if he were attempting to make such arrest pursuant to a warrant of arrest. (footnote continued on next page) * 7 : 15 covered heroin and related narcotics implements. On April 16, 1974, Riddick was indicted for criminal possession of a controlled substance in the fifth degree (more than one- eighth of an ounce of heroin) and for criminally possessing a hypodermic instrument. The Pre-Trial Hearing and Decision on the Motion to Suppress Detective Fred Bisogno testified that in June, 1973 he learned that Riddick was wanted in connection with several robbery charges (A.52). At ‘‘some [unspecified] time’’ prior to the arrest on March 14, 1974, complainants in two of these cases had picked Riddick’s picture from a photo- graphic array (A.59). In at least one case, a weapoa had been used. §120.80. Warrant of arrest; when and how executed 1. A warrant of arrest may be executed on any day of the week and at any hour of the day or night. * * * _ 4. In order to effect the arrest, the police officer may, under circumstances and in a manner prescribed in this subdivision, enter any premises in which he reasonably believes the defendant to be present. Before such entry, he must give, or make reason- able effort to give, notice of his authority and purpose to an occu- pant thereof, unless there is reasonable cause to believe that the giving of such notice will : (a) Result in the defendant escaping or attempting to es- cape; or (b) Endanger the life or safety of the officer or another person ; or (c) Result in the destruction, damaging or secretion of material evidence. _ 5. If the officer is authorized to enter premises without giv- ing notice of his authority and purpose, or if after giving such notice he is not admitted, he may enter such premises, and by a breaking if necessary. 16 Although Detective Bisogno first learned Riddick’s ‘‘whereabouts”’ in January 1974 (4.53), it is not clear that the police then had enough information to locate Riddick in order to arrest him. In fact, the detective testified that Riddick ‘‘had been in the hospital, Harlem Hospital, under an assumed name, and we had lost all contacts with him’’ (A.59). In addition, Riddick’s appearance had changed from how he looked in a picture in the police’s possession (A.51). Because Riddick had been on parole, his parole offi- cer was approached for help (A.51). Either through him, or by other means, the detective did eventually locate Rid- dick. At about noon on March 14, 1974, Detective Bisogno to- gether with two other detectives and a parole officer, arrived at Riddick’s apartment. The parole officer entered first, ex- ited, and gave a signal. Then Detective Bisogno approached the door. He did not demand entry. He simply knocked. Riddick’s son opened the door, and the detective, still standing outside the door, saw Riddick in a bedroom, seated in bed, with his hands underneath a waist-high sheet. De- tective Bisogno walked in, announced his authority, and asked the defendant whether his name was Obie Riddick. When Riddick said yes, he was arrested. Fearing that Rid- dick might have a weapon, the detective—who was holding his own hand on his gun, which was in his poecket—asked Riddick to take his hands from beneath the sheet and get out of bed (A.48-49, 53-55, 57-58). When Riddick stood up, the detective saw that Riddick was dressed in underwear only. As a safety measure, while his partner watched Riddick, Detective Bisogno searched 17 the bed and a dresser two feet from the bed. In the top drawer of the dresser, Detective Bisogno discovered the contraband (A.50, 55-57). The court found the facts essentially as Detective Bisogno had stated them. It held that there was prob- able cause to arrest Riddick and further, that under Crim- inal Procedure Law Section 140.10(1)(b), the officers did not need a warrant to effect the arrest. Finally, the court upheld the search incident to the arrest because the officers could reasonably expect that Riddick, a suspect in several armed robberies, might have concealed a weapon in the nearby chest into which he would have to go to get clothes (A.63-66). The judge did not discuss whether it was consti- tutionally permissible to enter Riddick’s dwelling without an arrest warrant. The Guilty Plea, Sentence and Affirmance by the Appellate Division After the court denied the motion to suppress, Riddick, on August 19, 1974, pleaded guilty to the lesser charge of criminal possession of a controlled substance in the sixth degree (A.44). On September 24, Riddick was sentenced to an indeterminate prison term of from two and one-half to five years (A.44). He appealed the denial of his motion to suppress, see N.Y. Crim. Proc. Law §710.70(2) (McKin- ney 1971), and the Appellate Division affirmed, with one judge dissenting. By the time of oral argument in this Court, Riddick will no longer be serving the sentence in the instant case, although he will still be incarcerated for armed robbery. 18 Opinion of the New York Court of Appeals In the Court of Appeals, a majority of four judges (per Jones, J.) affirmed both convictions, holding that because the officers had ‘‘unquestionable probable cause’’ to arrest Payton for murder and Riddick for armed robbery (A.73- 74), it was lawful to enter the dwellings to effect the arrests. The court upheld the constitutionality of the state statutes authorizing such entries without an arrest warrant. The majority began with appellants’ argument: Because a warrant is ordinarily required before the police may enter a dwelling to search for things, ‘‘symmetry’’ requires a warrant before an officer may enter a dwelling to arrest a felon (A.74). This argument was rejected because of the substantial differences between entering to search and en- tering to arrest. A search contemplates ‘‘rummaging through possessions,’’ an ‘‘upheaval of the owner’s chosen or random placement of goods and articles,’’ and disclosure to the police of many personal items. Entry to search, therefore, ‘‘strip[s] bare * * * the privacy which normally surrounds [the householder] in his daily living’’ (A.75). An entry to make an arrest, on the other hand, inter- feres with the privacy of the home to a lesser degree. ‘*{T here is no accompanying prying into the area of ex- pected privacy attending his possessions and affairs.’’ True, the majority recognized, arresting someone is of ‘*grave import.’? However, this Court had already held, in United States v. Watson, 423 U.S. 411 (1976), that an arrest may be made in a public place without an arrest warrant. The majority concluded that the same rule should — y ii a 19 apply if the arrest is in a dwelling. ‘‘{A]n arrest will al- ways be distasteful or offensive, [but] there is little reason to assume that arrest within the home is any more so than arrest in a public place; on the contrary, it may well be that because of the added exposure the latter may be more objectionable’? (A.76). After concluding that an arrest warrant requirement is much less necessary than a search warrant requirement to protect the privacy of the home, the majority compared the governmental interest in arresting felons with ‘a2 gov- ernmental interest in searching for things. Making entry to effect an arrest without an arrest warrant is ‘‘reason- able’’ in part because the community’s interest in catching the felon is so strong. This interest is of a ‘‘higher order”’ than the interest in recovering contraband or evidence (A.76). Finally, in concluding that it is ‘‘reasonable’’ within the meaning of the Fourth Amendment to arrest a felon in his dwelling without an arrest warrant, the majority relied upon ‘‘[t]he apparent historical acceptance in the English common law of warrantless entries to make fel- ony arrests,’’ ‘‘the existence of statutory authority for such entries in [New York] since the enactment of the Code of Criminal Procedure in 1881,’’ ‘‘the fact that a number of jurisdictions other than [New York] have also enacted statutes authorizing warrantless entries of buildings (without exception for homes) for purpose of arrest,’’ and the fact that the American Law Institute’s Model Code of Pre-Arraignment Procedure makes similar provision (A.76-78). 20 The majority then considered appellants’ other argu- ments. It rejected Payton’s contention that the officers did not really enter his apartment to arrest him (A.78). And it rejected Riddick’s argument that the entry into his apartment was ‘‘statutorily invalid’’ because the officers failed to give notice of their authority and purpose before entering. The majority held that the statute was not vio- lated because the entry was peaceable (A.80-81). A fifth judge (Wachtler, J.), voted to reverse Payton’s conviction on an issue not now before this Court.* How- ever, he joined the majority in concluding that the shell casing was admissible. Although Judge Wachtler con- cluded that ordinarily the police need a warrant to enter a dwelling in order to arrest someone, he believed that the officers were excused from obtaining one in Payton (though not in Riddick). Judge Wachtler found that ‘‘from the time of the murder the police had actively sought the killer.’”? Their ‘‘continuous and intensive investigation”’ led them to the door of Payton’s apartment ‘‘where they had reason to believe he might be hiding.’’ In these cir- cumstances, Judge Wachtler believed ‘‘it was reasonable for the police to continue their pursuit into the apartment in order to take a dangerous killer into custody’’ (A.81-82). * Judge Wachtler concluded that the evidence given by the up- state gun dealer concerning Payton’s purchase of the .30 calibre Win- chester rifle should have been excluded because it was the “fruit” of a receipt seized illegally from Payton’s apartment on January 15 (A.82-85). The majority held, as did the trial judge and the Appel- late Division, that the gun dealer’s evidence would have “inevitably” been discovered even if the officers had never seen the receipt (A.78- 80). Payton sought review in this Court of the question whether the gun dealer’s evidence should have been admitted ; however, in noting probable jurisdiction, this Court denied review of the question con- cerning this evidence (A.97). 21 Two other judges (Cooke and Fuchsberg, JJ.) also concluded that police officers ordinarily need a warrant to effect an arrest for a felony in a dwelling. They believed that there should be a warrant requirement ‘‘regardless of the purpose for which [the] entry is sought’’ (A.85, 88). These two dissenters found no circumstances sufficient to excuse the failure to get an arrest warrant either in Payton or in Riddick (A.85, 92-93).* d Summary of Argument A reading of appellants’ brief might lead one to assume that the issue in this case is whether privacy interests are involved—and therefore whether the Fourth Amendment applies—when a police officer makes a felony arrest in a dwelling. Appeltents, however, are debating false issues. Of course there are privacy issues involved; and of course the Fourth Amendment applies to arrests within dwellings. The issue is not whether the Fourth Amendment applies but what it commands. Specifically, when a police officer has probable cause to believe a person has committed murder (Payton), or an armed robbery (Riddick), does the Fourth Amendment prohibit the officer from arresting the defend- ant in his dwelling during the daytime without an arrest warrant? Even this way of stating the question is somewhat mis- leading because it ignores the fact that the question has * Contrary to appellants’ statement repeated several times (Ap- pellants’ Brief at 18, 60 & n.44), the majority made no decision about the existence of “exigent circumstances.” It ruled that, regardless of whether there were “exigent circumstances,” no warrant was re- quired (A.69). The majority was obviously describing appellants’ ent, and not its own conclusion, when it used the words “‘absent ——" circumstances (of which there were none here)” on page 22 already been answered quite clearly in the negative by his- tory. For hundreds of years, at common law, a constable was not required to obtain an arrest warrant before arrest- ing a felon in his dwelling. The law recognized the overrid- ing community interest in arresting dangerous criminals. Our English ancestors, however, were also very sensitive to the privacy interests involved whenever a person was ar- rested, and especially so when the arrest was effected by forcible entry into a dwelling. They chose to protect those privacy interests, not by requiring an arrest warrant, but (1) by requiring the constable to knock and announce his mission before he could enter forcibly, and (2) by holding him liable in damages unless he could make a sufficient showing, after the arrest, that he had arrested the right per- son. Far from being perceived as a protection, the arrest warrant was seen by some common law authorities as a dan- gerous device because it served to insulate the constable from liability. The great spokesmen for liberty in the eighteenth cen- tury appreciated this common law heritage. They looked to it for inspiration when they criticized the government abuses that led to the Revolution. These spokesmen were condemning the growing abuses of power to issue and ex- ecute search and arrest warrants. Their remedy for these abuses was to reaffirm the principles underlying the com- mon law of searches and arrests—principles which recog- nized the traditional authority of a constable, without an arrest warrant, to arrest a felon in a dwelling. The Fourth Amendment was intended to embody the same judgment. Throughout the nineteenth and twentieth centuries it was accepted that a peace officer had the authority, without an : ; 4 23 arrest warrant, to make felony arrests in dwellings during the daytime. As of 1975, thirty-six states had legislation on the subject ; thirty of them had statutes authorizing such arrests. The American Law Institute has twice approved the validity of these arrests, once in 1932, and more recently in 1975. Until the dictum in Coolidge v. New H ampshire 403 U.S. 444 (1971), this Court accepted their validity with- out question (although without directly deciding the point). Just three years ago, in United States v. Watson, 423 U.S. 411 (1976), and United States v. Santana, 427 U.S. 38 (1976), again without deciding the point directly, this Court went far towards recognizing and approving the policies that require that peace officers have the authority to make such arrests. More precisely stated, then, the question is: Why in the fourth quarter of the twentieth century should this Court reject the wisdom of history and discover in the Fourth Amendment a requirement that an officer must have an arrest warrant before he may arrest a felon in a dwelling? The Court is asked to consider this question in the context of two cases which provide focus for the rele- vant issues. First, in both cases the arrests were made in the daytime. The Court need not consider special prob- lems raised by nighttime entries. See Jones v. United States, 357 U.S. 493, 499-500 (1958). Second, both arrests were for serious, armed felonies—murder in Payton and armed robbery in Riddick. The Court need not consider special problems that might be raised by arrests for less serious felonies. See United States v. Watson, 423 US. at 438 (Marshall, J., dissenting). Third, in each case the defendant was arrested in his own dwelling. The Court 24 need not consider special problems that might be raised by an entry into a dwelling other than that of the person to be arrested. In Section I (A) below, we will discuss the history of the constable’s authority, without an arrest warrant, to make an arrest for a felony in a dwelling. In Section I (B) below, we will show that the long-stand- ing acceptance of the authority is based on sound social policy. As the Court recognized in Watson and Santana, an arrest warrant requirement will severely impede the most basic function of our police—arresting felons and bringing them to court to answer charges. At the same time, arrest warrants will not add significant protections to those already afforded people arrested in their homes. Indeed, in several important respects, an arrest warrant requirement will decrease those protections. In Section I (C) below, we will urge that if the Court imposes an arrest warrant requirement, it should nonethe- less formulate an exception for ‘‘exigent circumstances’’ different from the exception ordinarily applicable when po- lice officers seek to excuse their failure to obtain a search warrant. The definition of ‘‘exigent cireumstances,’’ we will argue, must give weight to the powerful community in- terest in arresting felons. Under the formulation we pro- pose, the failure to obtain a warrant in Payton should be ex- cused. The officers were engaged in an intensive and con- tinuous investigation which led them directly to the door of someone reasonably believed to be an armed murderer. It was reasonable for them to take the next step and enter the i 3 4 4 | 4 § a” é i 25 apartment without first obtaining an arrest warrant. If, however, the Court adopts some other definition of ‘‘exi- gency’’ then, depending on the definition chosen, a remand would be necessary in order to develop further information about whether it was practicable for the officers to obtain a warrant before they arrested Payton. Finally, in Section II below, we will urge that, regard- less of whether the officers should have obtained an arrest warrant, Payton is not entitled to the benefits of the exclu- sionary rule. When Detective Malfer entered Payton’s apartment, he was acting under the express authority of a state statute. At the time (January, 1970), neither the detective, his fellow officers, their supervisors, nor any prosecutor could have had any serious doubt about the law- fulness of the entry. In these circumstances, it would be a disservice to the salutary purpose of the exclusionary rule to exclude the evidence found in plain view by the officers upon entry. 26 POINT I When there is probable cause to believe that a per- son has committed murder (Payton) or armed robbery (Riddick), the Fourth Amendment does not prohibit a police officer from arresting that person in his dwell- ing during the daytime without an arrest warrant. A. The Fourth Amendment was intended to reaffirm the common law principles governing searches and arrests which, though protecting the sanctity of the home, did not require an arrest warrant before a peace officer could make an arrest for a felony in a dwelling. The common law is the source of much of our legal heritage concerning the privacy of the home. For example, the common law developed elaborate protections limiting when a constable could enter a dwelling to search for stolen goods. Before doing so, the constable needed a warrant. This warrant, which was later to serve as the model for the search warrant required by the Fourth Amendment, had to be issued by a magistrate, based on sworn evidence which amounted to probable cause. The objects to be seized had to be particularly described. And the constable had to inventory the things seized and make a return on the warrant. In spite of the concern about the privacy of the home— expressed in the maxim ‘‘a man’s home is his castle’’— the common law recognized that a civilized society has an overriding interest in ensuring that felons are arrested and brought to justice. This interest was considered much more grave than the interest in searching for stolen goods. 27 A home—as sanctified as it might be—could not be allowed to serve as a sanctuary for dangerous criminals. Accord- ingly, the law governing arrests made in dwellings was very different from that governing searches of dwellings. When the constable entered a dwelling to make an arrest for a felony, he did not need a warrant. 1. The Common Law: Peaceable Entries As long as the entry was peaceable, the common law treated an arrest in a dwelling like an arrest made any- where else. The common law authorities were aware that in some felony cases there might be time to obtain an arrest warrant. See, e.g., 1 M. Hale, Pleas of the Crown 588 (first American ed. 1847) [hereinafter ‘‘Hale’’]. But, in view of the danger that violent criminals might escape ap- prehension, the judgment was made not to require the con- stable to seek a court’s approval of the arrest in advance. Rather, when a felony had in fact been committed, it was considered better first to establish custody of the person and then, after the arrest, to conduct judicial proceedings. This litigation after the arrest, not the arrest warrant, was the way the common law protected those arrested. There was prompt review by a local justice of the peace, who could order immediate release. There was review by the higher courts, which could issue writs of habeas cor- pus. See 2 Hale 92; Gerstem v. Pugh, 420 U.S. 103, 114- 116 (1975). In addition, the arrested person could sue the constable in a damage action. In such litigation, the officer had to justify the arrest by showing either (1) 28 that the person arrested had committed a felony, or (2) that there was ‘‘suspicion of felony,’’ which meant that a felony had in fact been committed and that there was probable cause to believe that the person arrested had committed it. See 2 Hale 84-85, 92; Dalton, Country Justice (1742 ed.) 384. In short, the constable acted at the ‘‘peril’’ of making the required showing after the ar- rest. Later in the development of the common law, after the practice of issuing arrest warrants developed, sce United States v. Watson, 423 U.S. 411, 429 (1976) (Powell, J., concurring), an officer who arrested under a warrant in- stead of under his own authority could not be held liable in a damage action even if the warrant had been issued upon less than probable cause. 2. The Common Law: Forcible Entries The common law treated forcible entries to arrest dif- ferently from peaceable entries. Before making a forcible entry, the officer—whether he had an arrest warrant or not—was required to state his authority and to demand ad- mittance. Thus, the occupants had the opportunity to open the door and avoid the necessity of force. In this way, the common law tried to avoid violent intrusion in the first place and, if force became necessary, to reduce the danger that could arise if the occupants mistook the officers for criminals entering the house. If, however, those inside would not open the door, it could be broken down. The fact that a grave crime had been committed and that there was reasonable belief that a person had committed it (‘‘suspi- ee a ee, ee een eT ee) ee oc SS ee a ee 29 cion of felony’’) was sufficient to justify forcible entry into the home. The principle that ‘‘a man’s house is his castle’’ did not permit the person inside to barricade himself in his house and frustrate the arrest. The notice requirement was the way in which the common law reconciled the special concern about forcible entry with the grave community in- terest in arresting felons. Requiring an arrest warrant was not the solution. Thus, in the famous Year Book case from the 1400’s, long before it became the practice for justices of the peace to issue arrest warrants, we find the statement that forcible entry is not permissible in connection with civil cases but is permissible ‘‘for felony, or suspicion of felony.’’ In felony cases, forcible entry was justifiable because of the com- munity’s interest in apprehending felons: ‘‘for it is for the commonwealth to take them.’’* Similarly, in 1603, Semaine’s case—a landmark in establishing the principle that ‘‘every man’s house is his castle’’—stated that the ‘*privilege of house’’ barred forcible entry of dwellings for * 13 Edw. IV, 9a: “[Fl]or felony, or suspicion of felony, a man may break open the house to take the felon ; for it is for the common- wealth to take them.” This quotation is from Burdett v. Abbott, 104 Eng. Rep. 501, 560 (1811). The Year Book case itself is not avail- able in lish, according to librarians at the law schools of New York University and Columbia University. The practice under which local justices of the e issued arrest warrants devel gradually during the sixt and seventeenth centuries. See Holdsworth, A History of English Law (1922), pp. 294-95; Potter, Historical Introduction to English Law (London: Sweet and Maxwell, 1932), pp. 209-10. Unless otherwise indicated, in quoting from the common law authorities, citations and footnotes are omitted. 30 purposes of civil litigation. But, forcible entry, after notice, was permissible ‘‘for felony or suspicion of felony”’ because ‘‘it is for the commonwealth to apprehend fel- ons.”** Dalton, writing shortly after Semaine’s case, stated that ‘‘it is lawful for the King’s officers, by force to break open a man’s house to arrest offenders being therein * * * for the apprehending of any person for treason, felony or suspicion of felony.’’** * 5 Co. Rep. 91a, 77 Eng. Rep. 194, 196-97: “|F]or felony or suspicion of felony, the K[ing]és officer may break the house to ap- prehend the felon, and that for two reasons: 1. For the common- wealth, for it is for the commonwealth, to apprehend felons. 2. In every felony the King has interest, and where the King has inter- est the writ is non omittas propter aliquam libertatem; and so the liberty or privilege of a house doth not hold against the King.” ** Dalton’s Country Justice (1742 ed.), p. 299: “{I]n these Cases following, it is lawful for the King’s Off- cers, by Force to break open a Man’s House to arrest Offenders being therein, if the Doors shall be all shut, so as the Officer can- not otherwise enter the House, z7z. 1. For the Apprehending of any Person for Treason, Felony or Suspicion of Felony.” Although Dalton does not here state explicitly that the entry may be made without a warrant, his meaning is clear in context. Immedi- ately following the statement we have quoted, which deals with fel- onies, Dalton lists circumstances, with respect to other offenses, when forcible entry is permissible without a warrant: “2. Where one hath dangerously wounded another, and then flying into an House the Constable or other Officer upon fresh Suit, may break open the Door, and apprehend the Offender. So may any other Person besides the Officer. 3. Where there shall be an Affray made in an House, and the Doors shut, the Constable, etc. may break into the House to see the Peace kept.” (p. 300). Dalton then goes on to discuss when forcible entry, upon writs or warrants, is permissible in civil cases. In no case, however, could (footnote continued on next page) BA te Lal ond ab aa a tre dele Dre. Wako 31 Even after it became common for justices of the peace to issue arrest warrants, the authority of a constable to enter forcibly without a warrant continued to be recog- nized side by side with his authority to enter forcibly based on a warrant. Thus, Hale—who wrote extensively on the subject of arrests in the mid-1600’s—stated that a con- stable may enter upon a justice’s warrant.* However, the constable also has ‘‘original and inherent power”’ with re- gard to arrests, 2 Hale 88. When a felony has been com- mitted and there is probable cause to arrest, Hale stated, ‘“‘the constable may break open the door, tho he have no warrant.’’** Similarily, in the 1700’s, Blackstone wrote that doors be broken “to execute the King’s Process (upon the Body or Goods of any Person) at the Suit of any Subject.” (p. 300). Dalton then discusses the controversy about whether arrest war- rants were valid at all. He notes that it was “much controverted, whether a Justice of Peace may grant a Warrant to attach Persons suspected of felony” before indictment (p. 403). But it was Dalton’s tion that “The Officer, upon any Warrant from a Justice, either or the Peace, or Good Behavior, or in any other Case where the King is a Party, may by Force break open a Man’s House, to arrest the Offender * * *” (p. 404). _ *1 Hale 583: “by the book of 13 £.4. 9.a. [the Year Book case discussed above] a man that arrests upon suspicion of felony, may break open doors, if the party refuses upon demand to open them, and much more may it be done by the justice’s warrant.” ** 2 Hale 91-92: “[I]f there be a felony done, (suppose a rob- bery upon A.) and A suspects B. upon probable grounds to be th felon ged naguaints- tee coeetadin witein-2/4:4 - 1. the constable may apprehend B. upon this account, * * *. [I]f the constable should not be allowd this latitude in cases of this nature, many felons would escape, and the party arrested hath no ga thereby, for the justice of the peace, to whom in such cases € is properly to be brought, may consider the circumstances, and pos- sibly in some cases discharge or bail him, and upon his trial, if in- nocent, he will be discharged. 3. But there must be felony in fact (footnote continued on next page) 32 when a felony has actually been committed, the constable ‘‘may upon probable suspicion arrest the felon; and for that purpose is authorized (as upon a justice’s warrant) to break open doors, * * *.’”* Foster’s writings are somewhat ambiguous. He stated that, without a warrant, an officer could not justify a forcible entry based on ‘‘bare suspicion.’? He does not say whether an entry without a warrant could be justified by a showing of probable cause. But he does seem to say, as subsequent authorities have interpreted him, that a war- rant was not needed at least if the person inside had in fact committed a felony. In such a situation, the dwelling is ‘‘no done, and the constable must be ascertained of that, and aver it in his it is issuable. plea, and it is issu 2 3. * * * [I]f the supposed offender fly and take house, and the door will not be opened upon demand of the constable and —., tion of his business, the constable may break open the door, tho he have no warrant. 13 E. 4. 9. a. [the Year Book case discussed == goon | for it is a proceeding for the king by persons by law authorized an therefore there is virtually a non omittas in the actings of their au- thority” (emphasis in original). as : itorial footnote to the first American edition o e’s wor phy ning Ne view of Hale’s reasoning and his other statements on the subject in 1 Hale 583 (quoted above at p. 31, first footnote), the use of the words “if the supposed offender fly and take house” should not be taken to mean—and were not taken to mean by a later author- ity, Sir William Russell—that Hale considered forcible entry to be permissible only when there was immediate pursuit. 2 Hale 92, n.iZ. * 4 Blackstone’s Commentaries (Andrews ed.) 292: “The constable * * * hath great original and inherent authority with regard to arrests. He may, without warrant, arrest any one for a breach of the peace, committed in his view, and carry him before a justice of the peace. And in case of felony actually committed, or a dangerous wounding, whereby felony is like to ensue, he may upon probable suspicion arrest the felon ; and for that purpose is authorized (as upon a justice’s warrant) to break open doors, and even to kill the felon if he cannot otherwise be taken ;’ (emphasis in original). 33 / sanctuary’’ for him; doors may in such a case be forced.* Thus, East, writing after Foster, clarifies Foster’s state- ments by repeating his language and then adding that entry without a warrant ‘‘will at least be at the peril of proving that the party so taken on suspicion was guilty.’’ 1 Hast, Pleas of the Crown, p. 322 (1806 Phila. ed.). See also 1 Russell on Crimes (1819), p. 745. East concludes his dis- cussion of the subject by stating, ‘‘according to Lord Hale, if there be a charge of felony laid before the constable, and reasonable ground of suspicion thereon * * * the constable or his watch may break open doors * * *.’’ (Id.).** * M. Foster, Crown Law (3rd ed. 1792) pp. 320-321: “Where a felony has been committed or a dangerous wound given, or even where a minister of justice cometh armed with process founded on a breach of the peace, the party’s own house is no sanctuary for him; doors may in any of these cases be forced, the notification, demand, and refusal before mentioned having been previously made. “In these cases the jealousy with which the law watcheth over the publick tranquility, (a laudable jealousy it is,) the principles of politi- cal justice, I mean the justice which is due to the community, ne maleficia remaneant impunita, all conspire to supersede every pre- tence of private inconvenience; and oblige us to regard the dwellings of malefactors, when shut against the demands of publick justice, as no better than the dens of thieves and murderers, and to treat them accordingly. “But bare suspicion touching the guilt of the party will not war- rant proceeding to this extremity, though a felony hath been actually committed ; unless the officer cometh armed with a warrant from a magistrate grounded on such suspicion.” ** Appellants’ Brief, at p. 47, makes much of East’s statement that an officer must be in “fresh pursuit” before he may, without a war- rant, forcibly enter a dwelling in order to re-take a person who has previously been lawfully arrested and then escaped. 1 East 324. However, East was not writing here about felouy cases but about cases of escape—no matter how petty the offense for which the orig- inal arrest had been made. The common law authorities treated such “re-taking” cases as a separate category with rules of its own. See, e.g., “i Chitty, Criminal Law (3rd Amer., from 2d London, ed. 1836) 57; 2 Hawkins, Pleas of the Crown (6th ed. 1788), c. 14 sec. 9, p. 138. When the New York Code of Criminal Procedure codified the common law rules of arrest in 1881, special provision continued to be made for such cases. Sec. 187 provided for forcible entry “to retake the person escaping * * *,” 34 Burn (who, like Foster, wrote in the 1700’s) stated that a constable may break open doors not only with a warrant, but without a warrant ‘‘upon reasonable cause suspected.’’* Similarly, Chitty, writing in the early 1800’s about the body of law which had developed, stated, ‘‘ A constable may break open doors to take a felon * * * where a felony has in fact been committed by someone, and there be reasonable ground to suspect that a person be the offender.’’** * 1 R. Burn, justice of the Peace (1755 ed.) 71. Burn agreed with Hale that a constable couid forcibly enter to arrest without a warrant, and a private person could do so as well, though on more limited grounds than an officer: “[I]t seems that he that arrests as a private man, barely upon suspicion of felony, cannot justify the breaking open of doors to arrest the party suspected, but he doth it at his peril; that is, if in truth he be a felon, then it is justifiable, but if he be innocent, but upon a reasonable cause suspected, it is not justifiable. 1 H.H. [Hale] 82. “But a constable in such case may justify * * * 2 H.H. [Hale] 92.” [quoted above at p. 32, footnote]. 1 Burn 71 (emphasis in original). Burn prefaced his discussion of forcible entry with or without a warrant by stating, “as to the case of breaking open doors, in order to apprehend offenders, it is to be observed that the law doth never al- low of such extremities but in cases of necessity ; and therefore no one can justify breaking open another’s door to make an arrest, unless he first signify to those in the house the cause of his coming, and request them to give him admittance.” 1 Burn 71. ** 1 J. Chitty, Criminal Law (3rd Amer., from 2d London, ed. 1836) 22-23: “A constable may break open doors to take a felon, if he be in the house, and entry denied after demand, and notice given that he is a constable. * * * So, where a felony has been committed by some one, and there be reasonable ground to suspect that a person be the offender, a constable has a similar power of breaking open doors to apprehend him. Chitty discussed the earlier authorities and concluded, as Burn had, that a private person may justify forcible entry without a war- rant by proving “the actual guilt of the party arrested” and that “reasonable ground of suspicion” will not suffice. But an officer is excused when he is “acting bona fide on the positive charge of an- other.” (1 Chitty 53. See first footnote, supra, and 1 Burn, Jus- tice of the Peace [1869 ed.] 303; see also p. 301 and Vol. 5, pp. 1134, 1135.) Chitty and the later editions of Burn add the caution (footnote continued on next page) 39 These common law authorities, who rejected an arrest warrant requirement, developed the protections upon which the modern law of arrest is based. They (1) developed the concept of probable cause as the basis for arrest, whether in a dwelling or elsewhere,* (2) provided for prompt review of arrests by the courts, (3) developed the notice requirement for forcible entry,** (4) limited the role of private persons in making arrests, (5) recognized the validity of arrest warrants which are based upon probable cause and which name or describe the person to be ar- rested, and (6) imposed an arrest warrant requirement for most crimes but not for felonies. The modern law of searches is based on the protections which these same com- mon law authorities developed: a warrant, issued by a magistrate, upon sworn evidence that amounts to probable cause, particularly describing the place to be searched and that ‘the breaking an outer door is, in general, so violent, obnoxious and dangerous a proceeding, that it should be adopted only in ex- treme cases, where an immediate arrest is requisite.” 1 Chitty 53; 1 Burn (1869 ed.) 303. * See Samuel v. Payne, 1 Doug. 359, 99 Eng. Rep. 230 (1780) ; Beckwith v. Philby, 108 Eng. Rep. 585, 586 (1827) ; Davis v. Russell, 5 Bing. 354, 130 Eng. Rep. 1098, 1101-1102 (1829). See also 4 Stephen’s New Commentaries (2d ed. 1848) 388 (“upon a reason- able charge of treason or felony, or of a dangerous wounding, where- by felony is likely to ensue, or upon his own reasonable suspicion that any of such offenses have been committed, he may without warrant arrest the party so charged or suspected, and he will be justified in doing so though it should afterwards turn out that the party is in- nocent, or even that no such offense has been in fact committed. He is also authorized in these cases, as well as upon a justice’s warrant, to break open doors.’’) ** As the common law developed, the degree of ‘force’ which was considered necessary to bring the notice requirement into play was reduced until today the requirement applies when there is no more force than the turning of a doorknob. Sabbath v. United States, 391 US. 585, 590 (1968). It is the unannounced intrusion which is the ees consideration and which the notice requirement directly confronts. 36 things to be seized, and requiring an inventory and return. See Entick v. Carrington, 19 Howell’s State Trials 102%, 1066-67 (1765). There were other common law authorities, like Coke, who disagreed with these developments. But, Coke does not aid appellants’ position. He was not a partisan of warrants. On the contrary, he rejected the validity of both arrest warrants and search warrants issued by local jus- tices of the peace. He did not recognize the authority of a constable (before indictment) to make arrests except in his capacity as a private person. In his capacity as a constable, he could make an arrest only upon what Coke called a ‘‘writ,’? which was not an arrest warrant issued by a local magistrate but was process issued after indict- ment. See 4 Inst. 176-78. In fact, Coke rejected most of what was to become accepted law and practice. Compare 2 Hale 107-10, 112-14. But, although Coke disagreed with most of the common law developments, he agreed that, in felony cases, prior judicial approval was not needed before a dwelling could be forcibly entered to make an arrest. Coke preferred the practice of earlier times when most arrests were made by private persons who justified their arrests on the basis of first-hand knowledge that the person arrested had com- mitted the crime. See United States v. Watson, 423 U.S. at 429 (Powell, J., concurring). Therefore, Coke regarded forcible entry as justified not by an arrest warrant, but by a showing that the person arrested had actually committed the felony, see 2 Hale 90. Similarly, Hawkins, who also believed that a constable had no greater authority to arrest than a private person (2 Hawkins, Pleas of the Crown, c. EES OI AEE SCS PEGE MR was hd i Ne) xe Pes 37 13, sec. 7, p. 130 [6th ed. 1788]), stated that forcible entry was proper to arrest a ‘‘known’’ felon ‘‘with or without a warrant by a constable or private person.’’* 3. The Events Which Led to the Adoption of the Fourth Amendment One of the reasons some common law authorities dis- trusted arrest warrants was that local justices of the peace might issue them without any basis, i.e, on ‘‘bare sur- mises.’’ Coke. 4 Inst. 178. Arrest warrants abused in this manner deprived the person arrested of his remedy against an officer who made an arrest which was based on less than probable cause. In addition, arrest warrants could be gen- eral. And, as Hawkins wrote, the general warrant ‘‘might have the effect of an hundred blank warrants’’ (2 Hawkins, ce. 13, see. 10, p. 132), leaving it to the officer to arrest whom- ever he chose without any basis whatsoever. The ability of the warrant, particularly the general warrant, to shield officials from accountability presaged * 2 Hawkins, Pleas of the Crown (6th ed. 1788), c. 14, pp. 138- 139: “where a person authorised to arrest another who is sheltered in a house, is denied quietly to enter into it, in order to take him; it seems generally to be agreed, that he may justify breaking open the doors in the following instances: * * * Fifthly, where one known to have committed a treason or felony, or to have given another a dangerous wound, is pursued either with or without a warrant, by a constable or private person. But where one lies under a probable suspicion only, and is not indicted, it seems the better opinion at this day, that no one can justify the breaking open doors in order to apprehend him.” Hawkins use of the word “pursued” here does not mean that he considered immediate pursuit to be required for forcible entry in felony cases. When Hawkins meant immediate pursuit, he said precisely that, for example, in his next instance of when doors may be broken: “where those who have made an affray in his presence fly to a house, and are immediately pursued by him [the constable].” 2 Hawkins 139 (emphasis added). 38 developments which led to the Revolution and to the Fourth Amendment. By the 1760’s, general warrants, for both search and arrest, were being used in England and the colonies to enforce extensive economic and social pro- grams. Under general search warrants known as ‘Writs of Assistance,’? customs and excise officials searched houses, shops and other places for prohibited or uncus- tomed goods. These writs did not specify the places to be searched or the objects to be seized, required no in- ventory or return, and were of indefinite duration. In effect, as Otis was to say, these ‘‘monsters in the law’’ lived forever and granted customs and excise officials carte blanche to search anywhere for anything. They did not, however, authorize these officials to make arrests. See Lasson, The History and Development of the Fourth Amendment (1937) [hereinafter ‘‘Lasson’’], pp. 28-29, 33-34, 37-42, 51-56. General warrants were also used to enforce regulation of businesses, especially printing. Efforts to control the press led to a Star Chamber decree of 1566 which conferred upon agents of the Stationers’ Company broad powers of search, seizure, and arrest as well. Later, executive offi- cials known as ‘‘messengers’’ were issued general warrants to search for prohibited books and papers. Although the legislation authorizing this practice lapsed in 1695, Sec- retaries of State continued to issue these general warrants in eases of what was termed ‘‘ seditious libel.’’ See Lasson, pp. 23-28, 31-34, 37-38, 42-43; Marcus v. Search Warrants, 367 U.S. 717, 724-27 (1961). These abuses, and the great challenges to them, had nothing to do with the common law authority of a constable Prin ke Sar STL PE OSTA. APTI ut RRR 39 to enter a dwelling to arrest a felon. James Otis, Patrick Henry, William Pitt, and the judges who made the great decisions of the 1760’s were condemning something quite different—the vast power of numerous officials to enter every house and every business without proper restraints set by law and without accountability. Otis condemned the ‘‘ Writs of Assistance’’ and gave as an example of its awesome power a Boston customs official who appeared in court to answer for some minor offense. With the power granted by the writ, the customs official told the judge, ‘‘I will show you a little of my power,’’ and then searched from top to bottom the homes of the judge and also the constable who had called him into court.* As Otis said, under the Writs of Assistance, customs house officers were beyond the law: ‘‘{WJ]hether they break through malice or revenge, no man, no court can inquire—bare sus- picion without oath is sufficient. * * * [N]Jo one can be called to account.’’** PB bin gam is — by Otis in his argument in the “Writ of Assistance” case, see Papers of John Ad Zobel ed. 1965) 143. cee mts Neen eee ** 2 Legal Papers of John Adams 142-43: “Now one of the most essential branches of English liberty, is the freedom of one’s house. A man’s house is his castle; and while he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom house officers may enter our houses when they please—we are commanded to permit their entry—their menial servants may enter—may break locks, bars and everything in their way—and whether they break through malice or revenge, no man, no court can inquire—bare sus- picion without oath is sufficient. * * * Again these writs ARE NOT RETURNED. Writs in their nature are temporary things; when the purposes for which they are issued are answered, they exist no more ; but these monsters in the law live forever, no one can be called to account. Thus reason and the constitution are i i wed both against this 40 Patrick Henry condemned the power of officials to ‘‘go into your cellars and rooms, and search, ransack, and meas- ure everything you eat, drink or wear.’’ He said that offi- cials ‘‘ought to be restrained within proper bounds.’’* William Pitt condemned the power of officials to enter every home in the English cider regions in order to search for violations of the excise laws. See Lasson, pp. 41-42. He called it a ‘‘dangerous precedent”’ to admit ‘‘the officers of excise into private houses’’. And he reportedly also said, ‘‘The poorest man may in his cottage bid defiance to all the forces of the Crown * * *’’ (quoted in Miller v. United States, 357 U.S. 301, 357 and n.7 (1958)). In the great cases of the 1760’s, the courts condemned the power of officials to ransack a man’s house for hours under a general warrant, going through his ‘‘secret cabinets and bureaus’’ and carrying off his personal papers, whether ‘‘libellous’’ or not, to a clerk for the Secretary of State. See Entick v. Carrington, 19 Howell’s State Trials 1030, 1063-65 (1765). As Lord Camden stated, ‘‘To enter a man’s house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition; a law under which no Englishman would wish to live an hour;’’? Huckle v. Money, 95 Eng. Rep. 768, 769 (1765), See also Wilkes v. Wood, 98 Eng. Rep. 489, 498 (1763). * 3 Elliot’s Debates on the Federal Constitution (1836 ed.) 448- 49: “The officers of Congress may come upon you now, fortified with all the terrors of paramount federal authority. Excisemen may come in multitudes; for the limitation of their numbers no man knows. They may, unless the general government be restrained by a bill of rights, or some similar restriction, go into your cellars and rooms, and search, ransack, and measure everything you eat, drink, or wear. They ought to be restrained within proper bounds. od aac Bae cae i x " ¢ 43 bs] Z S ied at 4 & at ¥s > SI 4 41 In short, these great leaders were condemning a power which, as Otis said, ‘‘if it should be declared legal, would totally annihilate’’ the principle that ‘‘a man’s house is his castle.’’ In condemning these broad and vicious powers, however, they were not also condemning the common law authority of the constable, with or without a warrant, to enter a dwelling in order to arrest a felon. Im fact, the structure. developed by the common law—both the law of arrests and the law of searches—was a source of inspira- tion to them. It was the common law which had developed their guiding principle that ‘‘a man’s house is his castle.’’ In recognizing the right to be secure against ‘‘unreasonable searches and seizures’’ and in prohibiting general war- rants, the Fourth Amendment was intended to reaffirm traditional common law limitations on searches and arrests. Thus, when our forefathers condemned the general search warrant, their model for limiting the power to search was the common law warrant for stolen goods. See, e.g., Otis’ argument against the ‘‘Writ of Assistance’’ (quoted above at p. 39, second footnote). Entick v. Carrington, 19 Howell’s State Trials at 1066-67. Wilkes v. Wood, 98 Eng. Rep. at 498. See also Marcus v. Search Warrant, 367 U.S. 717, 727 (1961). Similarly, the general arrest warrant was condemned because it unleashed the power of arrest from the moorings developed by the com- mon law. Under these general arrest warrants, whom to arrest was ‘‘left to the discretion of the officer.’’ Leach v. Three of the King’s Messengers, 19 Howell’s State Trials 1001, 97 Eng. Rep. 1075, 1088 (1765). The officer was free to enter a dwelling to make an arrest, with little or no basis; and no matter how scanty his basis, he could not be 42 held accountable in an action for damages. See Entick v. Carrington, 19 Howell’s State Trials at 1059, Leach v. Three of the King’s Messengers, 97 Eng. Rep. at 1088. Under the protective principles of the common law, how- ever, the constable could make an arrest in a dwelling; but he could be held liable if he did not have probable cause to believe the person he arrested had committed the felony. Alternatively, the constable could make the arrest under an arrest warrant, which would shield him from liability. But, the warrant was not to be issued except upon probable cause and with ‘‘directions’’ from the magistrate naming or describing the person to be arrested. Leach v. Three of the King’s Messengers, 97 Eng. Rep. at 1088. 4. Acceptance of Common Law Principles in this Country In view of this history, it is not surprising that the law of arrest at common law, as set down by such authorities as Hale and Blackstone, became the law of arrest in this country. American peace officers, both state and federal, had the same authority to arrest as their common law pre- decessors.” They could make arrests with and without * United States marshals and their deputies had “the same powers in executing the laws of the United States, as sheriffs and their depu- ties in the several states have by law, in executing the laws of their respective states.” (Act of May 2, 1792, c. 28, §9, 1 Stat. 265 ; quoted in United States v. Watson, 423 U.S. at 420, and see 421 n.9, collect- ing subsequent reenactments.) A sheriff in New York was “ex officio, a conservator of the peace” and had the authority to arrest without a warrant. Coyles v. Hurtin, 10 Johns. Rep. 84, 86 (N.Y. Sup. Ct. 1813) (per Kent, Ch. J.). A constable had similar authority. See Taylor v. Strong, 3 Wend. 384, 385-386 (N.Y. Sup. Ct. 1829). Police officers in the metropolitan New York area possessed “all the common law and statutory powers of constables except for the service of civil process.” L. 1857, c. 569, Sec. 8. See Burns v. Erben, 40 N.Y. 453, 467 (1869). See also Shanley v. Wells, 71 Ill. 78, 81 (1873) (equat- ing the authority of an Illinois peace officer with that of an English constable at common law). 43 warrants in felony cases. For less serious crimes, they generally needed warrants except when the offense was committed in the officer’s presence. They could enter dwell- ings peaceably to effect arrests. And they could enter forcibly as long as they first knocked and announced their authority in order to give the occupant an opportunity to permit peaceable entry. In the century following the Revolution, there was con- siderable litigation concerning arrests made without war- rants. In deciding those cases, the courts found the gov- erning principles in the English common law authorities.* * See, e.g. Holley v. Mix, 3 Wend. 350, 353-54 (N.Y. Sup. Ct. 1829) (discussing Chitty and other English common law authorities, and holding that arrest for a felony is proper without a warrant “whether there is time to obtain one or not.”). See also the note following the report of this case in 20 Am. Dec., pp. 705-706, and cases cited therein. See also Coyles v. Hurtin, 10 Johns. Rep. 84, 86 (N.Y. Sup. Ct. 1813) (reversing a jury verdict against a sheriff who had arrested the plaintiff without a warrant for aiding an es- cape). Taylor v. Strong, 3 Wend. 384, 385-386 (N.Y. Sup. Ct. 1829) (citing Hale and other English common law authorities concerning the authority of a constable to arrest without a warrant for breach of the peace committed in his presence). Hawley v. Butler, 54 Barb. 490, 495-96 (N.Y. Sup. Ct. 1868) (quoting at length from Hale con- cerning the common law authority of officers to arrest without a war- rant in felony cases). As in England, the common law rules were broadened by remov- ing the requirement that a felony was in fact committed, so that an officer could arrest without a warrant upon reasonable belief that a felony had been committed.) See, e.g., Reuck v. McGregor, 32 N.J.L. 70, 74 (N.J. Sup. Ct. 1866) (“‘a peace officer may justify an arrest upon a reasonable charge of felony, although it should turn out that no felony had been committed’’). Doering v. State, 49 Ind. 56, 19 Am. Rep. 669, 670-671 (1874) (quoting from Holley v. Mix, supra). See also Eanes v. State, 6 Humpreys 53, 44 Am. Dec. 289, 290-91 (Tenn. 1845), and the note following the report of this case in 44 Am. Dec. at p. 292. See also Barnard v. Bartlett, 64 Mass. 501, 57 Am. Dec. 123 (1852), Commonwealth v. Irwin, 83 Mass. 587 (1861), and Commonwealth v. Reynolds, 120 Mass. 190, 21 Am. Rep. 510 (1876) (broadening the common law rule by permitting forcible entry under a warrant upon reasonable belief that the person to be arrested is inside. ). 44 For example, constitutional claims were made that a peace officer should be required to obtain an arrest warrant un- less he could prove that there was no time to get one. Those claims were rejected on the basis of the long common law history and for the same reasons the common law author- ities found persuasive: ‘‘The public safety, and the due ap- prehension of criminals, charged with heinous offenses, im- periously require that such arrests should be made without warrant by officers of the law.’’ Whether the officer had the time to obtain an arrest warrant is for the officer to consider ‘under his official responsibility, and [is] not a question to be reviewed elsewhere.’’ Rohan v. Sawin, 59 Mass. 281, 285, 286 (1851).* Once it was settled that a peace officer could arrest with- out a warrant, the authority at issue here—to make an arrest for a felony in a dwelling without a warrant—was so well settled that there was not one direct constitutional attack on it in the nineteenth century. There were, how- ever, several discussions of this authority in cases consid- ering related issues. These discussions stated what ap- peared to be obvious—that peace officers had such authority. In a very early case, Kelsy v. Wright, 1 Root’s Conn. Rpts. 83, 84 (1783), an entry was made under a warrant. In stating that the entry was lawful, the court did not men- * See also Wakely v. Hart, 6 Binn. 316, 319 (Pa. 1814) (the rules permitting arrest without a warrant are “principles of the common law, essential to the welfare of society, and not intended to be altered or impaired by the constitution. The whole section indeed was noth- ing more than an affirmance of the common law * * *.”). North v. People, 28 N.E. 2d 966, 972 (Ill. 1891) (the warrant clause ‘does not abridge the right to arrest without warrant in cases where such arrest could be lawfully made at common law before the adoption of the present constitution.” ), Syed, EVN YR FR. TSA IED PPR he) Sie WF, Sr La er q 4 . i 45 tion the warrant but said that the officer ‘‘was lawful con- stable and had right to break open the door and enter said house * * *.’’ See also State v. Smith, 1 N.H. 346, 346-47 (1818). In McLennon v. Richardson, 81 Mass. 74, 77 Am. Dee. 353, 354 (1860), the court, citing the English common law authorities, recognized the authority of a constable to break open doors and arrest without a warrant in ‘‘cases where treason or felony has been committed * * *.’? Such eases are of a ‘‘class which requires the immediate inter- vention of legal authority, on account of the grave nature of the offense * * *.’’ In Shanley v. Wells, 71 Ill. 78, 82 (1873), the court quoted Blackstone for the proposition that, when a felony has actually been committed, the con- stable may ‘‘upon probable suspicion, arrest the felon, and, for that purpose, is authorized (as upon a justice’s war- rant) to break open doors * * *.’’ In Rohan v. Sawin, supra, the court discussed and approved an English case which up- held the lawfulness of entry of a dwelling, without a war- rant, to arrest for a felony. 59 Mass. at 285-86. In Wade v. Chafee, 8 R.I. 224, 5 Am. Rep. 572, 57° (1865), the court relied upon the same English case in upholding the author- ity of a police officer to arrest without a warrant whether or not there was time to obtain one.* * The nineteenth century treatises which appellants cite (Br. at 50-53) do not state that an arrest warrant is required for forcible entry in felony cases. Barbour agrees with Chitty (quoted at p. 34, 2d fn., supra) that an officer, and a private person as well, may forc- ibly enter without a warrant in order to arrest for a felony. O. Barbour, A Treatise on the Criminal Law (3rd ed. 1883) 548. (Ap- pellants quote Barbour’s statement that it would be “prudent” for the officer the obtain a warrant. This statement was made with respect to the offense of breach of the peace or an “affray.” IJd., p. 546.) Bishop, as appellants recognize, agreed that no warrant is required in felony cases. 1 J. Bishop, Criminal Procedure (3rd ed. 1880) 109. Heard does not state that a warrant is required but repeats Foster's (footnote continued on next page) 46 In the latter part of the nineteenth century, the obvious became concrete. There developed a widespread movenient to codify the common law. This movement led not to ‘‘legis- lation’? as we think of it now, but to civil and criminal codes which ‘‘assembled’’ this law ‘‘so as to render it con- veniently accessible.’** The law of arrest was ‘‘assem- bled’? into numerous state statutes which recognized the authority of peace officers, without warrants, to enter dwellings in order to arrest felons. By 1930, 24 of 29 states which had enacted statutes on the subject author- ized forcible entry by an officer without a warrant; five states had statutes providing for forcible entry under a warrant.** As of 1975, 30 of the 36 states with statutes statements, discussed at p. 33, supra. F. Heard, A Treatise Adapted to the Law and Practice of the Superior Courts * * * in Criminal Court 148 (1879). Russell and Colby do not require a warrant but say that when the officer arrests without a warrant he may justify the arrest by showing that the person arrested committed a felony. 1 Russell on Crimes (1819) 745. 1 J. Colby, A Practical Treatise on the Criminal Law of the State of New York 74 (1868). Randall's Case, 5 City Hall Record 141 (N.Y. Ct. of Oyer and Terminer 1820) concerned an arrest for “dangerous wounding,” which the common law authorities treated as a category separate from felony arrests. See, e.g., Dalton, Country Justice (1742 ed.), p. 299 | quoted at p. 30, 2d fn., supra). * “Historical Note,’ N.Y. Code of Criminal Procedure (Mc- Kinney’s ed. 1958), pp. 341, 347, which refers to the report made by Commissioners Field, Loomis and Graham in 1849, proposing a code of criminal procedure. ** See American Law Institute, Code of Criminal Procedure (1930), Commentary at 254-55. The New York Code of Criminal Procedure as enacted in 1881 provided for arrest and forcible entry without a warrant “when the person arrested has committed a felony” (Sec. 177(2)) and “when a felony has in fact been committed, and he {a peace officer] has reasonable cause for believing the person to be arrested to have committed it.” (Sec. 177(3)). In 1958, the Code was amended to permit a peace officer to arrest without a war- rant upon probable cause “though it should afterward appear that no felony has been committed, or, if committed, that the person ar- rested did not commit it” (Sec. 177(4)). L. 1958, c. 707, Sec. 1. See N.Y. Code of Criminal Procedure (McKinney’s ed.), Pkt. Pt., p. 111. eee eee * sO: IRI BOT YI REE RTE DM FG LIS fe EP CEE SR I a RE PRPS AY, 47 on the subject had such a provision.* For some categories of federal officers, acting in states which had a rule per- mitting forcible entry without a warrant, Congress has repeatedly adopted the rule by reference. See United States v. Watson, 423 U.S. at 420-421 and n.9. Other cate- gories of federal officers, in the absence of federal statu- tory provisions, have been left by Congress to be governed by the law of the state where an arrest without warrant takes place. See United States v. Watson, supra, 423 U.S. at 420-21, n.8. The first direct attack on this authority came in the early part of the twentieth century. The Court in Phelps rejected the attack and took the authority to be ‘‘settled.’’ Commonwealth v. Phelps, 209 Mass. 396, 95 N.E. 868, 873 (1911). This view was accepted for much of the rest of this century. Major scholars such as Wilgus and Perkins believed that peace officers had such authority.** The * See American Law Institute, Model Code of Pre i . -Arraignmen Hoa ap (197 5), Appendix XI (collecting state statutes i 8 a in wuts ). See also Blakey, The Rule of Announcement and Un- m ul Entry, 112 U. Pa. L. Rev. 499 (1964), Appendix A (listin States with statutes authorizing forcible entry without a warnsty, See also United States v. Watson, supra, 423 U‘S. at 418, n.6 ** Wilgus stated that “the officer, if necessary, ma i arresting one who has committed a felony, or ons ho Sie able grounds to believe has committed a felony, whether a felony has or has not been committed * * *,” Wilgus, Arrest With : a 22 Mich. L. Rev. 541, 803 (1924) oe erring to forcible entry under a warrant, i r x fore doors are broken, there must be a nl gba geen i notice of the authority and purpose to make the arrest must wy iven and a demand and refusal of admission must be made, unless this is already understood, or the peril would be increased.” (p. 802) Wilgus then stated that “much the same rules apply whi: ‘arrests (footnote continued on next page) 48 American Law Institute in 1930, and again in 1975, wrote the authority into its model legislation. ALI, Code of Criminal Procedure (1930), Sees. 21, 28. ALI, Model Code of Pre-Arraignment Procedure (1975), See. 120.6(1).* As far: as we aware, until this Court’s dictum in Coolidge v. New Hampshire, 403 U.S. 433, 480 (1971), only one jurisdiction considered the authority at issue here to be unconstitutional. In the case which reached this con- clusion, Accarino v. United States, 179 F.2d 456 (D.C. Cir. 1949), it was unnecessary for the court to decide the point and the opinion misconstrued the common law history. In any event, both before and after Accarmo, this Court ac- cepted (though without directly deciding) the validity of a police officer’s authority to enter a dwelling without a warrant in order to arrest for a felony. In Johnson v. United States, 333 U.S. 10 (1948), Justice Jackson was emphatic and eloquent about the need for a neutral magis- trate to review probable cause before the police could con- duct a search. 333 U.S. at 14-15. In that same opinion, he stated that the officers could have entered the hotel room in question without a warrant in order to make an arrest are made without a warrant, provided the one making the arrest is acting within his lawful right to arrest.” (p. 802). Perkins wrote “As to breaking open doors or windows, assuming this to be necessary to reach the place where the person to be arrested is, or is reasonably supposed to be * * *, the common-law rule is [that] * * * an officer seeking to make an arrest for any crime, either in obedience to a warrant or under lawful authority to arrest without a warrant, may break the doors or windows even of a dwell- ing house.” Perkins, The Law of Arrest, 25 Iowa L. Rev. 201, 245 (1940). * Under Section 120.6(3), entries during the nighttime, defined as the hours between 10 p.m. and 7 a.m., are permissible only under a warrant or when certain special circumstances are reasonably be- lieved to be present. i 49 ‘for a crime committed in the presence of the arresting officer or for a felony of which he had reasonable cause to believe defendant guilty.”’ 333 U.S. at 15 (footnote omitted). In Jones v. United States, 357 U.S. 493, 499-500 (1958), the Court noted, without deciding, the ‘ grave con- stitutional question’’ concerning forcible nighttime entries without a warrant but expressed no concern about daytime entries. In Ker v. California, 374 U.S. 23, 38 (1963), four Justices adopted the rule stated by Wilgus that a dwelling may be forcibly entered without a warrant after notice of purpose and authority is given. Justice Harlan, con- curring in the result, did not question this rule. And the dissenters did not question the rule either. They con- tended only that the officers had not adequately announced their authority and purpose, see 374 U.S. at 47-50 (Bren- nan, J., dissenting in part). In Sabbath v. United States, 391 U.S. 585, 588 (1968), the Court stated that the validity of a forcible entry to arrest ‘‘without a warrant’’ is gov- erned by the notice requirement set forth in the federal statute concerning execution of search warrants. 30 B. The long-standing and widespread acceptance of the constable’s authority, without a warrant, to arrest a felon in his dwelling is based on sound social policy. Throughout our history, it has been recognized that searching dwellings for things and arresting felons in dwellings implicate very different policies and interests. In the centuries before the ratification of the Fourth Amend- ment, our English ancestors thought it unwise to compel a constable to get an arrest warrant prior to arresting a felon in his dwelling. The Fourth Amendment was intended to reaffirm those common law principles. Following that amendment’s adoption, we have lived so satisfactorily with- out an arrest warrant requirement that, until the past few years, virtually no one suggested changing the traditional law. The question presented here, therefore, is whether in 1979 this Court should reject Justice Holmes’ admonition [‘‘a page of history is worth a volume of logic’’, New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921)], invent an arrest warrant requirement, and impose it on the 50 states and on the federal jurisdictions. United States v. Watson, 423 U.S. 411 (1976), and United States v. Santana, 427 U.S. 38 (1976), decided only three years ago, go a long way toward answering that question in the negative. In those cases, the Court declined to require arrest warrants even though an arrest amounts to a total loss of a person’s liberty. Appellants attempt to dismiss these decisions as instances of blind adherence to history. But Watson and Santana cannot be so easily discarded. The Court deferred to history because it em- bodied wisdom and experience as relevant in 1976 as in d1 centuries past: The ‘‘balance struck by the common law,’’ 423 U.S. at 421, was still a sensible accommodation among the competing personal and community interests at stake when officers arrest felons. Of course, the cases now before the Court differ in one respect from Watson and Santana. In Watson, the police arrested the defendant in a restaurant. In Santana, after seeing the defendant in the doorway of her home, the offi- cers followed her inside and arrested her there. In Payton and Riddick, the officers entered to make the arrest without first seeing the defendant outside. The similarities among the cases—in each, the police were arresting for a felony— are much more important than any differences. 1. An arrest warrant requirement will severely interfere with the most basic function of our police—arresting the felon and bringing him before the court to answer charges. Law enforcement functions are varied, and the commu- nity’s legitimate interests in these several functions differ in intensity. For example, society may have a strong in- terest in finding evidence helpful at a trial. That interest pales, however, beside the law enforcement interests at stake in Watson, Santana, and the cases now before the Court: the need to catch criminals like Payton and Riddick —both accused of armed felonies—as quickly as possible, in order to bring them to court. As much as in Watson and Santana, imposing an arrest warrant requirement in these cases will interfere with this most basic law enforcement function. The requirement will 02 effect many serious cases. It will pressure police to seek warrants and make arrests too hurriedly. It will increase the likelihood of arresting innocent people. By diverting searce resources, it will interfere with the police’s ability, especially in complicated cases, to do the thorough investi- gation necessary for the apprehension of the guilty person. During the crucial hours before the arrest, it will penalize the police for deliberate planning. It will, as a direct con- sequence, lead to more injuries—to police, to defendants and to bystanders. In 1977, there were in New York City alone 115,121 felony arrests. New York City Porice DrparTMENT Crrme Comparison Report 113 (1977). That year in the United States there were over 17,000 arrests for murder, 25,000 arrests for forcible rape and 122,000 arrests for robbery. F.B.I. Unirorm Crime Reports 180 (1977). We do not know how many of these arrests were in dwellings. However, the number of arrests in dwellings does not indi- cate how many cases will be affected by an arrest warrant requirement. The police do not know whether the felon will be found in a dwelling or elsewhere. Consequently, some police officers, exercising caution, may seek an arrest warrant when they do not arrest the felon immediately after the crime. Cases in which the police find the defend- ant more than two hours after the crime comprise about one-half of felony arrests in urban centers. PREsipENT’s Commission on LAw ENFORCEMENT AND ADMINISTRATION OF Justice Task Force Report: Science anp TECHNOLOGY 96 (1967). Even if an arrest warrant requirement affects only those cases in which arrests are ultimately made in the dwelling, eh 53 those will certainly be the most serious cases. Arresting a felon in a dwelling is dangerous. New York State Pouice Manvat 81, 83 (3d ed. 1971) (hereinafter ‘‘Pottce Man- vaL’’). Police will not want f, make such an arrest except in grave matters and when absolutely necessary. Since the Indiana Supreme Court adopted an arrest warrant require- ment, there have been six reported cases in which that court considered the warrantless arrest of a felon in a dwelling. Three cases involved murder, one involved armed robbery, and one involved kidnapping.* Since the Massachusetts Supreme Judicial Court adopted such a requirement, four reported cases in that court have dealt with war- rantless arrests in residences. Two involved murders, and two involved armed robberies.** It is not accidental, then, that the cases now before the Court involve arrests for murder and armed robbery, and not for perjury or embezzlement. Investigations into serious cases like murder and armed robbery come in an almost infinite variety. Some (like in Payton) are fast-breaking—leading from one piece of in- formation to the next and ultimately to the defendant. Others (perhaps like in Riddick) are slower—filled with * Pawloski v. State, —— Ind. ——, 380 N.E. 2d 1230 (1978) (murder) ; Crune v. State, Ind. ——, 380 N.E. 2d 89 (1978) (murder) ; Barnes v. State, Ind. , 378 N.E. 2d 839 (1978) (armed robbery) ; Banks v. State, 265 Ind. 71, 351 N.E. 2d 4, cert. denied, 429 U.S. 1077 (1977) (murder); Finch v. State, 264 Ind. 48, 338 N.E. 2d 629 (1975) (kidnapping) ; Ludlow v. State, 262 Ind. 266, 314 N.E. 2d 750 (1974) (narcotics). ** Commonwealth v. Boswell, Mass. , 372 N.E. 2d 237 (1978) (armed robbery) ; Commonwealth v. LeBlanc, Mass. ——, 367 N.E. 2d 846 (1977) (niurder) ; Commonwealth v. Walker, —— Mass. ——, 350 N.E. 2d 678, cert. denied, 429 U.S. 943 (1976) (murder) ; Commonwealth v. Moran, Mass, ——, 345 N.E. 2d 380 (1976) (armed robbery). d4 false starts, winding alleys leading nowhere, periods when no useful information is developed, and other periods when information seems to flow in all at once. Sometimes infor- mation comes from responsible citizens or victims of crime (as in Riddick) ; sometimes from criminals (as in Payton), alcoholics or drug addicts. Sometimes information comes from documents; sometimes from ‘‘street talk.’’ Some- times the police may be led to useful information by hunches; sometimes by scientific experiment. Sometimes the police will canvass entire neighborhoods; sometimes a witness will simply walk into the stationhouse. An arrest warrant requirement will operate in this un- certain world of the streets and not in the calm of the court- room. Before such a requirement is established and im- posed on the thousands of police departments throughout the country, its operation should be seen from the perspec- tive of the policeman on the street. It is this officer who will have to shift the focus of his investigation to accommodate any new requirement. We cannot predict how many inves- tigations will be hampered or destroyed. But we believe the number will be substantial. We further believe that the Court will not be able to set guidelines which exclude from the requirement those felony cases in which investigations will be destroyed. The officer on the street will have to take the new re- quirement very seriously. If the Fourth Amendment com- mands that he get an arrest warrant, and he fails to do so, he may face tort suits, civil rights actions, or disciplinary proceedings. He certainly will face the possibility that the felon will be freed because of the suppression of important evidence—the murder weapon, the suspect’s admissions SR OP DY: ¥ Dn hea ad rial La dd made upon arrest, or the testimony of a witness that he identified the suspect at a post-arrest lineup. See Crews v. United States, 389 A. 2d 277 (D.C.) (en bane), cert. granted, —— USS. (February 21, 1979). In some places, the officer who fails to obtain a warrant will risk a ruling that the court has no personal jurisdiction to try the defendant. Laasch v. State, 84 Wis. 2d 587, 267 N.W. 2d 278 (1978). These risks will lead police officers to get the war- rant as soon as possible. If he does not, and unforeseen circumstances then require an immediate arrest, the officer risks a ruling, years later in the calm of a courtroom, that the new circumstances will be said to have been ‘‘foresee- able’’ (or indeed ‘‘created’’ by the officer himself). As a result, the evidence will be suppressed because the officer should have obtained a warrant sooner. See United States v. Santana, 427 U.S. at 48 (Marshall, J., dissenting) ; United States v. Watson, 423 U.S. at 450 (Marshall, J., dissent- ing). The rush to get the arrest warrant will lead to sig- nificant problems. The police will be required ‘‘to guess at their peril the precise moment at which they have prob- able cause to arrest a suspect.’’ Hoffa v. United States, 385 U.S. 293, 310 (1966). In some cases, the police will make a bad guess and will seek a warrant too soon—that is, before they have probable cause. If the magistrate refuses to sign the warrant, then the police will have taken time from their investigation. If the magistrate, deferring to the public need to seize possible felons, does sign, then any evidence discovered incident to the arrest will be sup- pressed. 56 In other cases the police will have probable cause when they seek the warrant. But having probable cause does not necessarily mean that the officers have focused on the guilty person. If the police are pressured to obtain a warrant too quickly, the likelihood of their arresting innocent people will increase. The trauma for the innocent person, where- ever arrested, cannot be quantified. In addition, the issu- ance of the arrest warrant will have interfered with the police’s ability to find the right person. At a time when they could, and should, be investigating further, they will have to shift their focus to obeying the command of the warrant—that is, that they find and arrest the person named, book him and bring him to court. All this time, the trail to the real culprit will be getting cold. Even if, based on probable cause, the police obtain a warrant for the right person, and even if the police con- tinue to gather evidence in order to prove his guilt at trial, the issuance of the warrant will seriously interfere with the on-going investigation. Every new piece of infor- mation will have to be brought to the magistrate’s attention. If the police develop facts which cast doubt on whether the person named in the warrant is guilty, they would be obligated, even if they still believe there is probable cause, to inform the issuing magistrate of the new information. If the police develop facts which strengthen their view that they have focused on the right suspect, again, they will have to amend their prior affidavits. The validity of the arrest warrant will be judged solely on the basis of the evi- dence before the issuing magistrate. Whitely v. Warden, 401 U.S. 560 (1971). Consequently, the police and the prosecutor will want the magistrate to have before him Pere reyrerer, 57 every piece of evidence which supports a finding of prob- able cause. In any serious investigation, numerous amendments of the affidavits will be needed. Witnesses may recant prior statements. The police may learn that an informant was less reliable than first believed. A victim who picked a per- son from a lineup may subsequently express some doubt. The officers may learn, as they did in Payton, that their wit- ness gave the wrong name for the defendant.* On the other hand, the officers may (as they did in Payton) locate a second witness who corroborates the information given by the first. They may uncover a second eyewitness. They may obtain the results of fingerprint or handwrit- ing or ballistics analysis, and these results may strengthen their belief that the person named is in fact guilty. All of these facts, and thousands more that could be imagined, will have to be brought to the magistrate who will, in effect, become the supervisor of the investigation. Thus, a warrant rule will require a shuttle service be- tween the investigating officers and the courts. Each trip will take hours and may consume a major part of an offi- cer’s tour of duty. For example, the Second Circuit Court of Appeals recently noted that, in the Southern District of New York, a highly urbanized area in which the courthouse is relatively accessible, federal agents must spend between four and five hours to obtain an arrest warrant. United States v. Campbell, 581 F. 2d 22, 26-27 n.7 (2d Cir. 1978). * Were a person arrested on a warrant which did not “truly name” him, the warrant would be invalid and the evidence resulting from the arrest would be suppressed. See West v. Cabell, 153 U.S. 78, 85-86 (1894) ; United States v. Jarvis, 560 F. 2d 494, 497 (2d Cir. 1977), cert. denied, 435 U.S. 934 (1978). 58 One court in California estimated that the time consumed in obtaining an arrest warrant is ‘‘between six and eight hours.’’ James v. Superior Court of Tulare County, —- Cal. App. 3d , 151 Cal. Rptr. 270, 272, 275 (1978). In other places, it would [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0430%3A5. Public record. Not legal advice.