Brief for Appellant — Payton v. New York

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Supreme Court, U. S,

| FILED

3 |979

IN THE

Supreme Court of the United States.« 1, cicze

OCTOBER TERM, 1978

No. 78-5420

THEODORE PAYTON,

Appellant,

VS.

NEW YORK,

Appellee.

No. 78-5421

OBIE RIDDICK,

Appellant,

vs.

NEW YORK,

Appellee.

APPEALS FROM THE NEW YORK

COURT OF APPEALS

BRIEF FOR THE APPELLANTS

WILLIAM E. HELLERSTEIN

DAVID A. LEWIS

Counsel for Appellants

The Legal Aid Society

15 Park Row — 18th Floor

New York, New York 10038

[212] 577-3420

393 0625

» OC @ CLO PUBLISHERS « LAW PRINTING CO e@ (202)

OPINIONS BELOW

JURISDICTION

QUESTION PRESENTED

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT:

Payton: No. 78-5420

Riddick: No. 78-5421

ARGUMENT:

NEW YORK’S FORMER AND CURRENT

STATUTES AUTHORIZING WARRANT-

LESS, NON-CONSENSUAL AND FOR-

CIBLE ENTRIES TO ARREST A PERSON

WITHIN HIS HOME IN THE ABSENCE

OF EXIGENT CIRCUMSTANCES VIO-

LATE THE FOURTH AND FOURTEENTH

AMENDMENTS

Introduction

Ill.

A Warrant Is Required to Arrest a Person

In His Home Because Privacy of the Home

Is the Paramount Interest Protected by

the Fourth Amendment, and Entry of the

Home to Arrest Involves a Substantial!

fnvassom OF Tet Tmterest. «ci ccccccoccccces

The Warrant Requirement Is Essential

to the Protection of the Privacy Interests

at Stake When Arrests Are Made Within

Se, na in a bns cue Ose oe eta bende bes

The Warrant Requirement for Arrests

Within the Home Irmposes No Undue

Burden on Legitimate Law Enforcement

i at I Gel Sy AR a NC oe a Pe

ee eee eeeeeeeeeeeeeeeeeeeeeeee

(it)

IV. The History of the Common Law of

Arrest Requires No Different Result ......... 40

A. The Common Law of Entries to Arrest

Was Wholly Unsettled at the Framing

f§ fe. RUA Bee oe irae 42

B. The Common Law Authorities in the

Nineteenth Century Remained Di-

vided on the Warrant Requirement ....... 50

C. Modern Courts, Examining Arrest

Entries in Light of Fourth Amendment

Interests, Have by a Substantial

Majority, Found Them Subject to the

Wasrant Requirement ....ccccccccccpeces 55

V. No Exigent Circumstances Existed to

Excuse the Failure of the Police to Obtain

a Warrant Prior to Their Breaking Open

the Door to Payton’s Apartment ......-........ 60

VI. The Extreme Force Employed to Gain

Entry to Payton’s Apartment, in the

Absence of Exigent Circumstances, Con-

stitutes an Additional Ground for Holding

the Conduct of the Police Unreasonable

Under the Fourth Amendment .............. 64

CAT EEE Gik.céb aba adud DEAL. OAR aRR Rees 68

CITATIONS

Cases: Page

Accarino v. United States,

179 F.2d 456 (D.C. Cir. 1949) ......... 44,56,65,66

Agnello v. United States,

Be Wee OEE BS bo i bce cece ene Weveiewes 22,59

Barnard y. Bartlett,

64 Mass. 501, 57 Am. Dec. 123 (1852) ......... 54

Beek v, Ge, STP UR. BEETS vis va vcdesparescss 32

(tit)

Berger v. New York,

PE Mas SEO bk ecco hao e4 0 600d dee 24

Bivens v. Six Unknown Federal Narcotics

MONEE, FES Ui. TOO UTOIY) oe bkeckéccccices 33,35

Boyd v. United States,

SPO Ss CUD EEOOD ec lidcvesdewedcccccliihcect 22,28

Camara v. Municipal Court,

ET WA POP ENOETD Vepeeidsecensiovssion 24,29,32

Chappell v. United States,

oan wae Soe Cae. Car! DGS) i's ccc dadcccseues 66

Chimel v. California,

Pe a PRED 654 cove cdatehoeeteuecs 30,35,61

Commonwealth v. Forde,

367 Mass. 798, 329 N.E.2d 717 (1975) ...... 26,58,66

Commonwealth v. Irwin,

ee se OER is SLs da Wale 6 eC edule dhlks 54

Commonwealth v. Lowrey,

158 Mass. 18, 32 N.E. 940 (1893) ............... 43

Commonwealth v. Phelps,

209 Mass. 396, 95 N.E. 868 (1911) .............. 55

Commonwealth v. Reynolds, -

120 Mass. 196, 21 Am. Rep. 510 (1876) ......... 54

Commonwealth v. Williams,

ay ey ty ae ee | 58

Coolidge v. New Hampshire,

403 U.S. 443 CIST1) ov cccccccicecsee Mtpedssa00,08

Davis v. Russell,

5 Bing. 355, 130 Eng. Rep. 1098

Sac WE Mila vie wee Ndct 6440 a4 Ge baderd ke ke 53

Dent v. State,

33 Md. App. 547, 365 A.2d 57 (1976) ........... 58

District of Columbia v. Little,

eee Bei es oo Sl | eee 66,67

(iv)

Dorman vy. United States,

435 F.2d 385 (D.C. Cir. 1969) .....ccccccccveees 57

Draper v. United States,

Be te eT CAM OED bios cee vesceeesacecevesscees 32 ©

Ex parte Jackson,

Oe Wie PEP LEED os ce swKnvenevieccesetescesees 29

Gerstein v. Pugh,

Se Ni SEITE) Sec ccccesecesecescutes 32,33,35

G.M. Leasing Corp. v. United States,

ROE ca vies tci-codsncewdaweenns 25,63

Griswold v. Connecticut,

Bt Te CISD: 6 be cep iecewscccidwacseccecs 23

Hawkins v. Commonwealth,

53 Ky. 395, 61 Am. Dec. 147 (1854) ............ 54

In re R.A.J.,

24 Cr. L. Rep. 2284 (D.C. Sup. Ct.

PE BE IUPEE eS acne bev ede boven widveccdvnass 58

Interstate Commerce Comm. v. Brimson,

BS AB GET CIE) onc vc ceeWedesnetecersgsinns 22

Johnston v. Commonwealth,

85 Pa. 54, 27 Am. Rep. 622 (1877) ........eeee 43

Johnson v. United States,

pa Bi Oe | eres ree 22,32,33,36,53,61

Jones v. United States,

FIT Oe CISD is o's Va eee eee nea acces 34,64

Katz v. United States,

Se A PET CUSED voce su ccusadctpsinenee 29,59,60

Kelsy v. Wright,

1 Root 83 (Conn. 1783) ........ccccccccccecees 54

Laasch v. State,

84 Wis.2d 587, 267 N.W.2d 278 (1978) ........-- 58

Lankford v. Gelston,

364 F.2d 197 (4th Cir. 1966) .......ccccccccceee 33

Leach v. Three of the King’s Messengers,

19 How. St. Tr. 1001 (1765) |... ci ccc cede cccnes 32

(v)

Lee v. Gansel,

1 Cowp. 1, 98 Eng. Rep. 935 (1774) .....eeeeee 65

Marshall v. Barlow’s, Inc.,

436 U.S. 307 (1978) ....cccccccccvcvccvcvseces 29

McDonald v. United States,

335 U.S. 451 (1949) 2... ccccccvcccceseeseces 60,61

McLennon vy. Richardson,

81 Mass. 74, 71 Am. Dec. 353 (1860) ........... 53

Michigan v. Tyler,

436 U.S. 499 (1978) ....ccccccsccccccesecsncces 29

Miller v. United States,

357 U.S. 301 (1958) ... ccc cecceecsecsccceees 41,44

Mincey v. Arizona, 57 L. Ed.2d 290 (1978) ..... 32,40,61

Miranda vy. Arizona,

384 U.S. 436 (1966) ..... cece ecceccenccecceecs 25

Morrison v. United States,

262 F.2d 449 (D.C. Cir. 1958) 2... cece cece cence 28

Nilson v. State,

272 Md. 179, 321 A.2d 301 (1974) ....-..eeeeeee 58

Olmstead v. United States,

ATT U:S.. 438 (19ZB) voc vccccvevesctsectee 24,29,59

Parke v. Evans,

Hob. 62, 80 Eng. Rep. 211 (K.B. 1615) ........-. 43

People v. Burrill,

391 Mich. 124, 214 N.W.2d 823 (1974) .........- 58

People v. Eddington,

23 Mich. App. 210, 173 N.W.2d 686

(1970), aff'd, 387 Mich. 551, 198

N.W.2d 297 (1972) .cvccccccicccccvvcccsecccess 58

People v. Little,

78 Mich. App. 170, 259 N.W.2d 412

| LE) BRT Pee OLE bihsaedvjeehoeveneles 56,58

People v. Moreno,

176 Colo. 488, 491 P.2d 575 (1971) ......eeeeeee 58

(vi)

People v. Ramey,

16 Cal.3d 263, 545 P.2d 1333, cert.

denied, 429 U.S. 929 (1976) ...--seeeeeeeeees 31,58

People v. Trull,

___ Ill. App. 3d —_, 380 N.E.2d

1169 (1978) ..ccceccccercccccccsssscccccgerece 58

Poe v. Ullman,

367 U.S. 497 (1961) 2... eee e reece reser ceececees 23

Rakas y. Illinois,

58 L.Ed.2d 387 (1978)... cece eee eeceter renee 23

Randall's Case,

5 City Hall Record 141 (N.Y. Court

of Oyer and Terminer 1820) ...-+++++eeeeereres 53

Read v. Case,

4 Conn. 166, 10 Am. Dec. 110 (1822) .....--++- 54

Salvador v. United States,

505 F.2d 1348 (8th Cir. 1974) ...ee cece ee eeeees aT

Schmerber v. California,

384 U.S. 757 (1966) ....-e eee e cece cece eeeeceee 61

Semayne’s Case,

77 Eng. Rep. 194 (K.B. 1603) ...-++++++:: 43,44,45

Shanley v. Wells,

T1 TN. 78 (1873) ....ceceveccccccnsccecccses 53,54

Silverman v. United States,

365 U.S. 505 (1961) .... cece eee eer eee eer eens 22

South Dakota v. Opperman,

428 U.S. 364 (1976) ..... cece eee eeeees 31,32,33,34

Stanley v. Georgia,

394 U.S. 557 (1969) ....- cece cece cece ereeees 23

State v. Cook,

115 Ariz. 188, 564 P.2d 877 (1977) ...-.e-ee eee 58

State v. Girard,

276 Ore. 511, 555 P.2d 445 (1976) .....--eeeees 56

(vil)

State v. Lasley,

306 Minn. 224, 236 N.W.2d 604 (1975) ......... 56

State v. Max,

263 N.W.2d 685 (S.D. 1978) «2... eee ee eee neeee 58

State v. Mooring,

115 N.C. 709, 20 S.E. 182 (1894) .......--eeee- 54

State v. Mordecai,

68 N.C. 207 (1873) ...cceeee cece ecceeeeeececes 43

State v. Perez,

277 So.2d 778 (Fla.) cert. denied,

414 U.S. 1064 (1973) .... cece ec eeeeecerereeeees 58

State v. Ranker,

La. , 343 So.2d 189 (1977) «1... seer eeeee 56

State v. Shaw,

1 Root 134 (Conn. 1789) «0... ec ee eee e eee e eee 54

State v. Smith,

1 N.H. 346 (1818) 2.0... cece eee cere rece eeeees 54

State v. Teuber,

19 Wash. App. 654, 577 P.2d 149

(UDTE) ccc cccccscsccccsccccesscccccccccoose 56

Stuck v. State,

255 Ind. 350, 264 N.W.2d 611 (1970) ........555- 58

Thompson v. Anderson,

447 F.Supp. 584 (D. Md. 1977) ...---eeeeeeeeee 54

United States v. Briddle,

436 F.2d 4 (8th Cir. 1970), cert.

denied, 401 U.S. 921 (1971) «6. cece eee eee eeees 27

United States v. Calhoun,

542 F.2d 1094 (9th Cir. 1976),

cert. denied, 429 U.S. 1064 (1977) ...-.eseeeeees 62

United States v. Cepulonis,

530 F.2d 238 (Ist Cir.), cert. denied,

426 U.S. 908 (1976) 2... cc cece ee cece eee e eee 27

United States v. Chadwick,

433 U.S. FE CIGTT) 2. cccccccceccdeces 21,29,33,49,50

(vill)

United States v. Guidry,

534 F.2d 1220 (6th Cir. 1976) ....-ee cere eeeeees 27

United States v. Jeffers,

342 U.S. 48 (1951). 2... cc cence eceeneeeeeeeeees 62

United States v. Killebrew,

560 F.2d 729 (6th Cir. 1977) ..... cece reece eeees 57

United States v. Liszynai,

470 F.2d 707 (2d Cir. 1972), cert.

denied, 410 U.S. 987 (1973) ..... cece ee eeeeeeeee 39

United States v. Looney,

481 F.2d 31 (Sth Cir.), cert. denied,

414 U.S. 1070 (1973) 2... ccc cee ee cere eeeecees 27

United States v. Martinez- Fuerte,

428 U.S. 543 (1976) ...... cee ceceeeees 23,24,32,34

United States v. Prescott,

581 F.2d 1343 (9th Cir. 1978) ...... eee ee eee eee 57

United States v. Reed,

§72 F.2d 412 (2d Cir. 1978) .......-00- 26,28,57,59

United States v. Santana,

427 U.S. 38 (1976) ....ccsccceccescvccccccces 38,64

United States v. Sellars,

520 F.2d 1281 (4th Cir. 1975) ...... cece eee eeee 27

United States v. United States District

Court, 407 U.S. 297 (1972) .....-eeeees 21,31,32,50

United States v. Watson,

423 U.S. 411 (1976) ......2ce0- 18,30,31,38,39,40,41,

United States v. Williams, 42,49,55,58,59

573 F.2d 348 (Sth Cir. 1978) ...... eee eee ee cece 58

United States ex rel. Wright v. Woods,

432 F.2d 1143 (7th Cir. 1970) ......- cece eee eee 58

Vale v. Louisiana,

999 U.S. 30 (1970) occ cccececccncccccescscvvces 61

Vance v. North Carolina,

432 F.2d 984 (4th Cir. 1970) ........ cece eee eens 57

(ix)

Wakely v. Hart,

6 Binn. 316 (Pa. 1814) ....cccccccccccvcsccecs 54

Warden v. Hayden,

SET U.S. BOS CIGSE) ovcccvcvasensets 28,44,59,61,62

Wilson v. United States,

325 F.2d 224 (D.C. Cir. 1963) ....ccccccveceees 39

Wong Sun vy. United States,

ae Bok. *s errata 33

VD FF Biles 4, 1b. D oc vecccccccvcceccvcevsecyess 44

CONSTITUTION AND STATUTES:

United States Constitution:

Anpetiebent TU i ic sc ce eee evec cee Teceeeepegas 22

Amnondmment TV | oo. cbcleccchececciccvccdepesecs 22

Ala. Code §15-10-4 (1977) 2... cc ceeeeeeee cece eens 56

Alaska Stat. §12.25.100 (1972) ...cceeeeeeeeeeneeee 56

Ark. Stat. Ann. §43-414 (1964) ....c eee e cece e eens 56

Conn. Gen. Stat. Ann. §30-106 (1975) .......eeees 56,66

D.C. Code §23.591, P.L. 91-358, §210(a),

repealed, P.L. 93-481, §4(a), P.L.

93-635, §16 oc. cccccsecccccccccccccesecevcees 58

Fla. Stat. Ann. §901.19 (1973)... eee eee eee eee ees 56

Ga. Code Ann. §27-205 (1972) ......eee eee eeeees 56,66

Hawaii Rev. Stat. §803-11 (1972) ..... cece eee e eens 56

Idaho Code Ann. §19-611 (1948) «2... 0. cece ee eens 56

lowa Code Ann. §755.9 (1950) ....-. cece ee ee eens 56

Kan. Code Crim. Proc. §22-2405 (1974) .......++0+. 56

Ky. Rev. Stat. §70.078 (1971) ......eceeeeeeeeees 56,66

Miss. Code Ann. §99-3-11 (1972) 1... eee eee eeees 56

Mo. Ann. Stat. §544.200 (1953) 1... eee cece eens 56

(x)

Mont. Rev. Code Ann. §95-602 (1969) ..........4.5. 56

Neb. Rev. Stat. §29-411 (1975) .......seeecccceeees 56

Nev. Rev. Stat. §171.138 (1967) .....cseceeeeeeeees 56

N.Y. Crim. Proc. Law. §120.80, 140.15

(1971)... .cccpecdauyhus sNanenn yaaa so Gee 56

N.C. Gen. Stat. §15A-401(3) (1978) .......- cece eee 56

N.D. Cent. Code Ann. §29-06-14 (1974) ..........4.. 56

Ohio Rev. Code Ann. §2935.12 (1975) ......2.0005- 56

Okla. State Ann. tit. 22, §194 (1969) ............. 56,66

S.C. Code Ann. §53-198 (1977) ....c eee eee eeees 56,66

Tenn. Code Ann. §40-807 (1975) 2... cece eee eee eeee 56

Tex. Code Crim. Proc. Art. 15.25

(Vernon 1977), si csévccctevewebecee sapenents 56

Utah Code Ann. §77-13-12 (1968) «1... cece ee eeees 56

Wyo. Stat. Ann. §7-169: (1967) 22... cece cece enes 56,66

MISCELLANEOUS:

American Law Institute, A MODEL CoDE OF

PRE-ARRAIGNMENT PROCEDURE (1975) ..... 30,47 ,66

Amsterdam, Perspectives on the Fourth

Amendment, 58 Minn. L. Rev. 349

(1974) ..cceccacedvecebssee reste heeapeees 59,65

2 O. Barbour, A TREATISE ON THE CRIMINAL

LAW AND CRIMINAL COURTS OF THE

STATE OF New YorK (3d ed. 1883) ........... 51,53

| J. Bishop, CRIMINAL PROCEDURE (3d ed.

1880) ....ccuccedesebenv he eeeeeen ee eee sles §2,53,57

4 W. Blackstone, COMMENTARIES ......0eeeeeeeeeees 48

Blakey, The Rule of Announcement and

Unlawful Entry: Miller v. United

States and Ker v. California, 112

U. Pa. L. Rev. 499 (19GE) vs ccncdscvcopposes 43,49

(x1)

Brief for the United States in United

States v. Santana, 427 U.S. 38 (1976) .......... 38

Brief for the United States in United

States v. Watson, 423 U.S. 411 (1976) .......... 39

R. Burn, JUSTICE OF THE PEACE AND

PARISH OFFICER (16th ed. 1788) ............4.. 48

R. Burn, JUSTICE OF THE PEACE (30th ed.

DEG RELSEAGE ewe be Yet vows es conccaceons 65

H. Cam, LIBERTIES AND COMMUNITIES ;

IN MEDIEVAL ENGLAND (1944) ........0eeeee0- 45

1 J. Chitty, CRIMINAL Law (3d Am. ed.

PUES ce ghGes be cee ine puahegroreredvenoe 51,65

Ee) Ts ded ciehoceseccncessecedeees 46

| J. Colby, A PRACTICAL TREATISE ON

THE CRIMINAL LAW AND PRACTICE

OF THE STATE OF NEW YORK (1868) ............ 51

Comment, Watson and Ramey: The

Balance of Interests in Non-Exigent

Felony Arrests, 38 San Diego L. Rev.

DEEDTEE SocbueBeccakbdstscebececs.-cccsvese 26

M. Dalton, THE CoUNTRY JUSTICE (1697) ......... 43,49

E. East, PLEAS OF THE CROWN (1803) ......... 43,47,65

M. Foster, CROWN LAw (2d ed. 1776) .......--0555. 46

Haddad, Arrest, Search and Seizure—

Six Unexamined Issues in Illinois

Law, 2% DePaul L. Rev. 492 (1977) ........6+- 66

M. Hale, THE HISTORY OF THE PLEAS OF

THE CROWN (17356) ncccccccccccccicccens 44,47,48

2 W. Hawkins, PLEAS OF THE CROWN (1716) ...... 44,46

F. Heard, A TREATISE ADAPTED TO THE

LAW AND PRACTICE OF THE SUPERIOR

CouRTS ... IN CRIMINAL CASES

CRDIOE | cecveccevedobsdcabeccacscccciccvcoeses 50

(xi)

W. LaFave, ARREST: THE DECISION TO

TAKE A SuSPECT INTO CusTopy (1965)

LaFave, Warrantless Searches and the

Supreme Court: Further Ventures

Into the Quagmire, 8 Crim. L.

Bull. 9 (1972)

N. Lasson, THE HISTORY AND DEVELOPMENT

OF THE FOURTH AMENDMENT TO THE

UNITED STATES CONSTITUTION (1937)

2 LEGAL PAPERS OF JOHN ADAMS (Wroth

and Zobel ed. 1965)

Note, Forcible Entry to Effect a Warrant-

less Arrest—The Eroding Protection

of the Castle, 82 Dick. L. Rev. 167

(1977)

Note, Warrantless Entry to Arrest: A

Practical Solution to a Fourth

Amendment Problem, 1978 U. Ill.

Law Forum 655

Note, Watson and Santana: Death Knell

for Arrest Warrants? 28 Syracuse

L. Rev. 787 (1977)

C. O’Hara, FUNDAMENTALS OF CRIMINAL

INVESTIGATION (3d ed. 1973)

R. Perkins, CRIMINAL Law (2d Ed. 1969)

President’s Commission on LAW ENFORCE-

MENT AND ADMINISTRATION OF JUSTICE

TASK FoRCE REPORT: SCIENCE

AND TECHNOLOGY (1967)

Report of the Select Committee for the

Code of Criminal Procedure, New

York State Assembly, submitted

March 2, 1855

1 W. Russell, CRIMES AND MISDEMEANORS

(Sth Am. ed. 1845)

qidkteeehe 43

(xiii)

1 W. Russell, ON CRIME (J. Turner, ed.,

SP OE, TOD. hiiacahatacwen ha bees) ia keene

The Neglected Fourth Amendment

Problem in Arrest Entries, 23 Stan.

L: Rev. FES CHSC es vc ecscbabeneiwcsdtadlecesbes

A. Tiffany, A TREATISE ON THE CRIMINAL

LAW OF THE STATE OF MICHIGAN

(Sth ed. 1900)

SesBe eee Pease CSCS CES Pesegsgeserwese@c ee

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1978

No. 78-5420

THEODORE PAYTON,

Appellant,

VS.

NEW YORK,

Appellee.

No. 78-5421

OBIE RIDDICK,

Appeliant,

vs.

NEW YORK,

Appellee.

APPEALS FROM THE NEW YORK

COURT OF APPEALS

BRIEF FOR THE APPELLANTS

OPINIONS BELOW

The opinion of the New York Court of Appeals (A.

69-93) is reported at 45 N.Y.2d 300, 408 N.Y.S.2d 395.

The order of affirmance of the Appellate Division, First

Department in the Payton case (A. 42) is reported at 55

A.D.2d 859. The opinion of the Supreme Court, New

York County in the Payton case on the pretrial motion

to suppress evidence (A. 39-41) is reported at 84

Misc.2d 973, 376 N.Y.S.2d 779. The decision of the

Appellate Division, Second Department in the Riddick

case (A. 67-68) is reported at 56 A.D.2d 937, 392

N.Y.S.2d 848. The opinion of the Supreme Court,

Queens County in the Riddick case denying the motion

to suppress evidence (A. 63-66) is unreported.

JURISDICTION

The judgment of the Court of Appeals in both cases

was entered on July 11, 1978. In the Payton case, a

notice of appeal to this Court was filed on September

12, 1978. In the Riddick case, a notice of appeal was

filed on September 14, 1978. Both appeals were

docketed on September 19, 1978. Probable jurisdiction

in both cases was noted on December 11, 1978, and the -

cases were consolidated.! The jurisdiction of the Court

rests on 28 U.S.C. §1257(2).

'In the Payton case, the Court noted probable jurisdiction “limited to

Question | presented by the jurisdictional statement.” (A. 97).

QUESTION PRESENTED

Whether New York statutes which even in the

absence of exigent circumstances authorize warrant-

less, non-consensual and forcible entries for the purpose

of arresting a person in his home violate the Fourth and

Fourteenth Amendments.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Amendment IV:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation,

and particularly describing the place to be

searched, and the persons or things to be seized.

United States Constitution, Amendment XIV, Sec-

tion |:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

= its jurisdiction the equal protection of the

aws.

Payton: Former New York Code of Criminal Pro-

cedure §§177, 178 (66 McKinney's Laws of New York,

Ch. 4):

4 5

CHAPTER IV—ARREST BY AN OFFICER inner door or window of a building, if, after notice

WITHOUT A WARRANT of his office and purpose, he be refused

admittance. ’

Riddick: New York Criminal Procedure Law,

§§ 150.10(1)(a)(b), 140.15(1)(4), 120.80(1)(4)(5) (IIA

McKinney’s Laws of New York, 1971):

* * *

§177. In what cases allowed.

A peace officer may, without a warrant, arrest a

person,

1. For an offense, committed or attempted in

his presence, or where a police officer as enu-

merated in section one hundred fifty-four-a of the

code of criminal procedure, has reasonable

grounds for believing that an offense is being

committed in his presence.

2. When the person arrested has committed a

felony, although 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 com-

mitted, or, if committed, that the person arrested

did not commit it;

5. When he has reasonable cause for believing

that a person has been legally arrested by a citizen

as provided in sections one hundred eighty-five,

one hundred eighty-six and one hundred eighty-

seven of this code.

_ §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

§140.10. Arrest without a warrant; by police

officer; when and where authorized.

1. Subject to the provisions of subdivision two,

a police officer may arrest a person for:

(a) Any offense when he has reasonable

cause to believe that such person has com-

mitted such offense in his presence; and

(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, pursuant 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.

§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.

x * *

4. In order to effect the arrest, the police »fficer

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

reasonable effort to give, notice of his authority

and purpose to an occupant thereof, unless there is

reasonable cause to believe that the giving of such

notice will:

(a) Result in the defendant escaping or

attempting to escape; or

(b) Endanger the life or safety of the officer

or another person; or

secretion of material evidence.

5. If the officer is authorized to enter premises

without giving 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.

STATEMENT

Payton: No. 78-5420

On the morning of January 12, 1970, Roberto

Carassas, the manager of a gas station at 1995 First

Avenue on Manhattan’s upper East Side, was shot and

killed during a robbery. The perpetrator had carried a

rifle and had worn a ski mask. On January 16,

appellant Payton surrendered himself at Manhattan’s

23rd precinct and was placed under arrest for that

crime. On March 30, 1970, Payton was indicted by a

New York County Grand Jury for felony murder and

intentional murder (A. 2).

On May 16, 1974, a pretrial hearing was held on

Payton’s motion to suppress physical evidence seized

by the police from his apartment on January 15, 1970.

The sole witness was Detective Mal Malfer, the officer

who, on January 12, 1970, was placed in charge of the

investigation.

Malfer testified that sometime in the early morning

of January 12, 1970, he proceeded to the service station

where Mr. C?rassas had been shot and there inter-

viewed severa witnesses; he also spoke to witnesses

who were not at the scene (A. 10, 11). On January 14,

Malfer was told by “witnesses” that a “Teddy Payton”

was the perpetrator (A. 11, 21). That same day, Malfer

was taken by one of the witnesses to the Bronx and the

building and apartment in which Payton lived (682

East 141st Street, apt. 5-C) was pointed out to him (A.

34).2 However, Malfer took no steps that day to effect

Payton’s arrest; nor did he make any effort to obtain

either an arrest or search warrant (A. 21, 34).

Instead, Detective Malfer, accompanied by a police

sergeant and three other detectives, returned to

Payton’s apartment between 7:15 and 7:30 a.m. the

?The record of the suppression hearing does not establish at precisely

what time on January 14, Malfer learned where Payton lived because

the prosecutor's objection to that question was sustained (A. 33). There

was trial testimony, however, that Payton’s apartment had been

pointed out to Malfer sometime after twelve noon by Jessie Leggett, a

prosecution witness (T. 782-783). [References to pages in the record

which are not in the Appendix are preceded by the letter “T.”].

next day (January 15) (A. 12). He could not recall

whether he had made any attempt to ascertain whether

Payton was home prior to going to the apartment (A.

23). When the five police officers arrived at Payton’s

apartment door, Malfer saw a light from beneath the

bottom of the door and heard the sound of music from

a radio (A. 12, 23, 24). They knocked on the door but

received no response (A. 13, 14). The officers tried to

force their way in, but could not because the door was

made of metal. Consequently, one of the officers left

the building to call the Police Department’s Emergency

Services Division for assistance; Malfer could not

recall how long it was before help arrived (A. 14, 24-

26).4

Malfer testified further that while waiting for the

arrival of help from Emergency Services, he had not

been concerned about the possibility of escape because

he assumed that he and his fellow officers had followed

their normal course of covering all avenues of escape:

“IT assume if we worked the way we normally worked

that we had that situation covered” (A. 25). When two

officers from Emergency Services arrived, they broke

Payton’s door open with crowbars. Payton was not at

home but upon entering the apartment, the officers

divided up and went into different rooms (A. 27, 28).

Although Malfer maintained that their search of the

3When defense counsel attempted to learn from Malfer whether, after

leaving Payton’s building on the 14th, and prior to his return to

Payton’s apartment the following morning, Malfer had acquired any

further information, the prosecution objected and the court sustained

the objection (A. 34).

4At trial, Malfer testified the time lapse was about a half-hour

(T. 901).

apartment was directed at finding Payton, he admitted

that, even after he realized Payton was not there, he

and his brother officers conducted a search of the entire

apartment during which they opened dressers and

closets, looked under a mattress and inside cupboards

and dumped out the contents of various drawers (A.

28-30). As a result of his search of a closet, Malfer

found a shotgun, a bandolier containing fourteen

buckshots for that gun, several photographs of Payton

with a ski mask, and a sales receipt for the purchase ofa

Winchester rifle (A. 5, 15). The prosecution conceded

that all of these items should be suppressed because

they were the fruits of the warrantless search of

Payton’s apartment (A. 3-7).

However, Malfer also claimed that after he had been

in the apartment for a while he saw a .30 caliber

Winchester shell casing, which he said was in “plain

view” on top of a stereo set, and seized it (A. 15, 32).

Defense counsel argued that the police had sufficient

time to procure a warrant and that the “plain view” of

the casing did not “sanitize” the unlawful entry (A. 8).

The prosecution maintained that the police were

properly in the apartment to make an arrest authorized

by statute (A. 4).

On June 4, 1974, the court rendered a decision in

which it suppressed all of the items taken from the

apartment except the .30 caliber shell casing. The court

held that the casing had been observed in “plain view”

while the police were lawfully in the premises pursuant

to sections 177 and 178 of the former New York Code

of Criminal Procedure (the applicable statute) to

‘The Court of Appeals noted that the substance of sections 177 and

178 was “continued and expanded in sections 140.10, 140.15 (subd. 4)

and 140.25 (subds. 1-3) of the present statute” (A. 77, n.3).

make a warrantless arrest for a felony which they had

reasonable grounds to believe Payton had committed

(A. 39-41).

On June 6, 1974, Payton’s trial commenced before

Justice Peter McQuillan and a jury. The prosecution

presented testimony from six eyewitnesses at the scene

of the crime, two of whom, Melvin Gittens and

Raymond Williams, claimed they could recognize

Payton because of their prior acquaintance with him

although the robber had worn a mask (Gittens: T. 285-

286, 306-318, 365, 393-394; Williams: T. 492, 494, 516-

522, 570-573, 590-592). Another witness, Jesse Leggett,

testified that Payton admitted to him that he had

committed the crime and also testified to Payton’s

purchase and possession of a .30/30 Winchester rifle

(Leggett: T. 665-668, 670, 676-677, 733-734, 740).° The

prosecution also called Sidney Roseman, a Peekskill,

New York gunstore owner who testified from his

records that Payton had purchased a .30/30 Win-

chester rifle from him on November 19, 1969 (T. 593-

6Gittens, Williams and Leggett all had extensive criminal records. In

fact, Gittens had come to the service station for a prearranged meeting

with his lawyer to work out the means for arranging his surrender to the

police on a homicide charge. He had also been previously convicted of

sodomy (T. 294, 305, 319-321, 324-325, 339-348). Williams had four

prior felony convictions, the most recent of which had been for

attempted murder of a police officer. At the time of trial, he was serving

a 10 year sentence and was scheduled to see the Parole Board within a

few months (T. 490, 499-500, 533-569). Leggett had prior convictions

for various assaults, theft and gambling offenses. At the time of trial, he

was facing attempted murder charges for shooting his mother-in-law

(T. 672-674, 688-689, 693-696, 743-745, 769-770, 790-792).

“

597, 600, 603, 949-951)’

Although the prosecution established that the

deceased had been killed by bullets fired from a .30

caliber Winchester rifle (T. 881-883), the murder

weapon was never recovered (T. 849). However, the .30

caliber shell casing seized in Payton’s apartment was

placed in evidence [People’s Exhibit 12] (T. 819-825) as

were two shell casings found near the body of the

deceased on the floor of the service station (T. 807-813);

the prosecution’s ballistics expert testified that all three

had been fired from the same Winchester rifle (T. 1012-

1015, 1021-1022). No defense witnesses were called.

On June 21, 1974, the jury found Payton guilty of

felony murder but were unable to agree on the

intentional murder count (T. 1304-1305).8 On October

29, 1974, the court sentenced Payton to a term of 15

’The defense challenged Roseman’s testimony and the admissibility

of the original Firearm Transaction Record (People’s Exhibit 5) which

Roseman had retained as the “tainted” fruit of the bill of sale found by

Detective Malfer in Payton’s apartment and which had been suppressed

prior to trial. Ata post-trial taint hearing, Justice McQuillan ruled that

the prosecution had established bya preponderance of the evidence that

by following routine police procedures, the police would have

discovered the Firearm Transaction Record on their own. By 4-3 vote,

the Court of Appeals upheld that ruling under the doctrine of inevitable

discovery (A. 78-80). Review of that ruling by this Court was sought in

questions 2 and 3 of Payton’s Jurisdictional Statement but those

questions are not before the Court because of its limitation of review to

question | (A. 97).

*The case was submitted to the jury at 2:45 p.m. on June 20, 1974and

the verdict was not rendered until 6:10 p.m. on June 21. The jury

interrupted its deliberations to request re-readings of various portions

of the testimony of Leggett, Williams, Gittens and Gittens’s lawyer and

to request suppleniental instructions on reasonable doubt and

intentional murder (T. 1217-1267).

years to life imprisonment. The Appellate Division,

First Department affirmed the conviction without

opinion on December 16, 1976 (A. 42). The Court of

Appeals’ decision is discussed at pp. 14-16 infra.

Riddick: No. 78-5¢

On March 14, 1974, Obie Riddick was arrested in his

Queens home on a robbery charge (A. 48-49). In the

course of a search incident to that arrest, the police

discovered heroin and a hypodermic syringe in a

dresser drawer in Riddick’s bedroom. On April 16,

1974, Riddick was indicted for criminal possesion of a

controlled substance and for criminal possession of a

hypodermic instrument (A. 45-46). Prior to trial,

Riddick moved to suppress the evidence seized from his

apartment on the ground, among others, that the

arresting officers had failed to obtain either an arrest or

a search warrant although they had ample time to do so

(A. 61).

The evidence at the suppression hearing, which

consisted entirely of the testimony of Detective Fred

Bisogno, the arresting officer, showed that the police

first obtained probable cause to arrest Riddick in June,

1973, when he was identified from a photographic

array as the perpetrator of two robberies (A. 52, 59).°

At that time, although Riddick was on parole from an

earlier ~onviction (which did not terminate until

February 12, 1974), the police claimed that they did not

actually learn Riddick’s address until January, 1974

9It appears that the robberies in question occurred in 1971, over two

years before the arrest (see Arraignment Minutes dated April 25, 1974

at 2; Trial Counsel's Affirmation in Support of Appellant's Motion to

Suppress).

when they apparently were informed by his parole

officer that he lived at 127-08 165th Street, Queens (A.

51, 53, 67).'° Even then the police did not try to arrest

him; nor did they obtain a warrant for his arrest ora

search of his home (A. 53, 59).!'! Instead, they waited

six to ten weeks before going to his home to arrest him.

On March 14, 1974, at about noon, three police

detectives and Riddick’s former parole officer went to

Riddick’s home, a two-family, wood-frame house (A.

48-49). The parole officer entered the house first then

returned and signalled to the police that Riddick was

home (A. 53, 58). They knocked on the front door

which was opened by Riddick’s three-year old son.

From the doorway, the police saw Riddick in bed and,

without first announcing their authority and purpose,

proceeded into the bedroom (A. 49, 54.)'2 The police

ordered Riddick, who was clad only in undershorts,

out of bed (A. 49-50). They then searched the general

area of the bed, beneath the mattress, under the pillow

case, and inside a dresser which was a few feet away

from the bed (A. 50). In the top dresser drawer, the

officers discovered a quantity of heroin and a hypo-

dermic syringe (A. 50). The trial court denied Riddick’s

motion to suppress these items on the ground that the

arrest was lawful because it was based on probable

\0Riddick had lived at this address for two years (Sentencing Minutes

dated September 24, 1974 at 6).

\'The arresting officer claimed he had tried to get a “grand jury”

warrant, an arrest warrant founded upon an indictment, but had failed

to do so because Riddick had not yet been indicted (A. 53).

'2Only two of the officers went into Riddick’s bedroom (A. 54). The

parole officer was in an adjoining room (A. 50) and the location of the

other officer is unclear.

cause and the search was reasonable as incident to the

arrest (A. 64-66).

On August 19, 1974, Riddick withdrew his plea of

not guilty and pled guilty to criminal possession of a

controlled substance in the sixth degree (New York

Penal Law §220.06), in full satisfaction of the charges

in this indictment (See Plea Minutes dated August 19,

1974). On September 24, 1974, the court sentenced him

to a 2'4 to 5 year term of imprisonment (See Sentence

Minutes dated September 24, 1974). By virtue of New

York Criminal Procedure Law, §710.70(2) the denial of

Riddick’s motion to suppress was appealable notwith-

standing his entry of a guilty plea. On appeal, Riddick

challenged the constitutionality of New York Criminal

Procedure Law §§140.15(4) and 120.80(4),(5) which

authorized the warrantless arrest in his home. The

Appellate Division, Second Department affirmed his

conviction on March 28, 1977 with no majority

opinion. One justice dissented on the ground that the

police failed to comply with the statutory requirement

that notice of authority and purpose be given prior to

entry (A. 67-68).

The Court of Appeals’ Decision

By a 4-3 vote, the Court of Appeals affirmed the

convictions in both cases. The majority b7ld that police

entry into a home for the purpose of arrest, “if based on

probable cause, is not necessarily violative of the

constitutional right to be secure against unreasonable

searches and seizures even though the arresting officer

has not obtained a warrant and there are no exigent

circumstances” (A. 69). Noting that this Court has not

yet resolved the issue (A. 78), the majority reasoned

that there “was a substantial difference between the

intrusion which attends an entry for the purpose of

searching the premises and that which results from an

entry for purpose of making an arrest,” as well as a

“significant difference in the governmental interest in

achieving the objective of the intrusion in the two

instances.” Thus, it concluded, a warrantless entry fora

search will be “both more extensive and more

intensive,” while entry for arrest will be achieved

without “accompanying prying into the area of

expected privacy attending [a person's] possessions

and affairs” (A. 75). While recognizing that “con-

sidered decisions in the federal courts have reached the

opposite result” (A. 78), the majority believed there was

support for its holding in “[t]he apparent historical

acceptance in the English common law of warrantless

entries to make felony arrests,” in the long-time

existence of statutory authority in New York and in

other jurisdictions and in the adoption by the Ameri-

can Law Institute of a similar rule (A. 76-78).

The dissenters argued that absent exigent circum-

stances, the police are constitutionally required to have

a warrant to enter a home to arrest or seize a person.!?

Writing on the warrant issue, Judge (now Chief Judge)

Cooke emphasized that “from the standpoint of the

citizen—to whom the language of the Fourth Amend-

ment is directed —it makes little difference whether the

invasion of the privacy of his home was made to effect a

warantless arrest or a warrantless search” (A. 89), and

'3Judge Wachtler believed there were exigent circumstances in the

Payton case because of the seriousness of the crime and because the

police had been in “continuous pursuit” but dissented on the inevitable

discovery issue (A. 81-85).

that “neither antiquity nor legislative unanimity can be

determinative of the grave constitutional question

presented here” (A. 92).'4

SUMMARY OF ARGUMENT

I. The primary interest protected Sy the Fourth

Amendment has always been.the privacy of the home.

Accordingly, this Court’s decisions have long afforded

the most stringent protection to the sanctity of private

dwellings. The paramount significance of the home in

our Constitutional scheme is due to the various

meanings the home has for our citizenry. Not only isita

fundamental property interest but, as the center of the

personal life of the individual, it is the place in which

legitimate expectations of privacy are the highest.

In treating arrests within the home as though they

were the same as those made in public places, the Court

of Appeals ignored those distinctions between the

home and public areas which have long been drawn by

this Court. The court erred in holding that the intrusion

involved in an entry of the home to arrest is minimal in

comparison with tha entry to search. This error

arose from the. ’s failuré to recognize that anentry

'#Judge Cooke also took specific issue with Judge Wachtler on the

existence of exigent circumstances in the Payton case, pointing out that

the police had been well aware of Payton’s identity and address the day

before their break-in, that in the intervening period they had ample

Opportunity to obtain a warrant, and that even on the day of the break-

in, they delayed until Emergency Services personnel arrived and thus

had yet additional time in which they could have secured a warrant

(A. 92).

into the home invades the privacy of a!l its occupants,

that it opens to police scrutiny all items in “plair: view,”

that the manner in which the police enter a dwelling is

not designed to ensure a minimal intrusion on privacy,

that arrests within the home are accompanied by

incidental searches and that if the suspect is not

immediately within sight, a search for him may extend

throughout the entire premises. When these circum-

stances are taken into account, the privacy interests

implicated in the mere entry of the home are, in fact,

more substantial than those in many “searches” which

this Court has held are subject to the warrant

requirement. Finally, the additional intrusion involved

in the seizure of a person within the home brings the

total violation of Fourth Amendment interests in these

cases well beyond that which is necessary to trigger

application of the warrant requirement.

Il. The warrant requirement is essential to the

protection of the substantial privacy interests affected

by arrest entries and is as important here as in the

search context. Because police possess exceptionally

wide discretion as to whether, when and where an

arrest should be made, a power that has been abused,

an arrest warrant issued by a neutral magistrate prior

to entry into a home reduces the opportunity for police

errors or excesses. The warrant limits and delineates

the scope of the permissible intrusion and reduces the

frequency with which hindsight may affect the evalua-

tion of the reasonableness of the entry. The warrant

also protects against otherwise irreparable depriva-

tions of constitutional rights due to erroneous police

judgments.

III. Additionally the warrant requirement, in the

re |

limited circumstance of arrests within the home,

imposes no undue burden on law enforcement. It does

not limit the power to arrest without a warrant when

there are exigent circumstances. On the other hand,

where immediate action is not necessary, as is true of a

substantial number of arrests, the additional brief

delay to obtain a warrant is inconsequential. When

measured against the seriousness of the intrusion to

privacy within the home, law enforcement interests in

being free of the warrant requirement are insubstantial.

IV. Unlike the situation in United States v. Watson,

423 U.S. 411 (1976) where the common law concerning

warrantless public arrests was exceptionally clear, the

common law as to arrests within the home is far less

certain and many authorities required warrants for

entries to arrest. At the time of the framing of the

Constitution, common law authorities were in dis-

agreement as to the actual rule and nineteenth century

authorities also remained divided. Significantly, once

modern courts, both federal and state, considered the

issue in the context of Fourth Amendment principles,

they concluded overwhelmingly that a warrant is

required. Consequently, the history of the common law

of arrest provides no guidance in this instance to the

proper construction of the Fourth Amendment.

V. If our argument that the Fourth Amendment

mandates a warrant for arrests within the home is

correct, then only exigent circumstances can excuse

police failure to obtain one. The Court of Appeals

determined that in neither the Payton nor Riddick

cases were exigent circumstances present.!> However,

'SIn Riddick, the District Attorney has conceded that no exigency

existed. See, Motion of the District Attorney of Queens County for

Divided Argument in No. 78-5421, p. 3.

in Payton, one judge thought that because of the nature

of the crime and because the police had been in

“continuous pursuit” of Payton there were exigent

circumstances. This conclusion is without support

either in this Court’s decisions or in the record. There

was no danger of flight, or imminent destruction of

evidence, nor was there “hot pursuit.” That a homicide

had been committed did not alone give rise to exigent

circumstances. And the conduct of the investigating

detective, who made not one but two trips to Payton’s

apartment a day apart and delayed entering the second

time until other officers could respond with crowbars,

indicated that speed was not essential.

VI. Our final point, applicable only to the Payton

case and one which need not be addressed if the Court

accepts our primary argument on the warrant require-

ment, is that given the absence of exigent circum-

stances, the entry into Payton’s apartment, because of

the force employed, was unconstitutional under the

Fourth Amendment.

ARGUMENT

NEW YORK’S FORMER AND CURRENT

STATUTES AUTHORIZING WARRANT-

LESS, NON-CONSENSUAL AND FORCI-

BLE ENTRIES TO ARREST A PERSON

WITHIN HIS HOME IN THE ABSENCE

OF EXIGENT CIRCUMSTANCES VIO-

LATE THE FOURTH AND _ FOUR-

TEENTH AMENDMENTS.

Introduction

These cases are before the Court to resolve the

unsettled question of whether the Fourth Amendment

permits, in the absence of exigent circumsances,

warrantless arrests within the home. Although the issue

is still open, a plurality of the Court in Coolidge v. New

Hampshire, 403 U.S. 443 (1971) stated that:

It is clear, then, that the notion that the warrantless

entry of a man’s house in order to arrest him on

probable cause is per se legitimate is in funda-

mental conflict with the basic principle of Fourth

Amendment law that searches and seizures inside a

man’s house without warrant are per se unreason-

able in the absence of some one of a number of well

defined “exigent circumstances.”

Id. at 477-78.

The decision of the closely divided New York Court

of Appeals found no such conflict and held that no

warrant was necessary foranentry toarrest. That court

thus placed itself at odds with the overwhelming weight

of recent judicial authority on the question.'® Our

argument will demonstrate that the court erred in its

decision and. that the Fourth Amendment, properly

construed, mandates reversal because of the high value

afforded by it to the privacy interests of the home, the

serious intrusion upon those interests by an arrest

entry, and the importance of the warrant in safeguarding the

interests involved. We shall further demonstrate that

there are no legitimate law enforcement purposes

served by dispensing with the warrant requirement and

that there is nothing in Anglo-American legal history

to justify doing so. We conclude by establishing that in

both cases at bar there were no exigent circumstances

to excuse police failure to obtain a warrant and that in

'6See nn. 39, 41 infra.

the Pa yroncase the extreme force actually employed by

the police in gaining entry to Payton’s apartment

constitutes an additional basis for determining the

statute authorizing their conduct unconstitutional

under the Fourth Amendment.

I. A Warrant Is Required to Arrest a Person in

his Home Because Privacy of the Home Is the

Paramount Interest Protected by the Fourth

Amendment, and Entry of the Home to Arrest

Involves a Substantial Invasion of That

Interest.

From the adoption of the Constitution to the

present, the predominant interest protected by the

Fourth Amendment has been the privacy of the home.

By its very terms, the Amendment protects the “rights

of the people to be secure in their. . . houses. . . against

unreasonable searches and seizures,” and it has long

been recognized that “physical entry of the home is the

chief evil against which the wording of the Fourth

Amendment is directed... .” United States v. United

States District Court, 407 U.S. 297, 313 (1972). The

searches and seizures which most deeply concerned the

Framers of the Amendment were those involving

invasions of the home under authority of writs of

assistance. United States v. Chadwick, 433 U.S. 1, 7-8

(1977). Indeed, John Adams believed that the move-

ment for American independence was sparked by

James Otis’s speech against the writs and in defense of

the home: |

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.

2 LEGAL PAPERS OF JOHN ADAMS 142-44 (Wroth and

Zobel ed. 1965); see, N. Lasson, THE HISTORY AND

DEVELOPMENT OF THE FOURTH AMENDMENT TO THE

UNITED STATES CONSTITUTION 59 (1937). After the

revolution, the Framers confirmed the importance of

the home by protecting it under two of the amend-

ments in the Bill of Rights. U.S. Const. Amends. III,

IV. From the beginning, then, the “freedom of one’s

house” has stood at the center of our constitutional

protections.

In accordance with these precepts, the Court has

affirmed that “{a]t the very core [of the Fourth Amend-

ment] stands the right of a man to retreat into his own

home and there be free from unreasonable govern-

mental intrusion.” Si/verman v. United States, 365

U.S. 505, 511 (1961). Indeed, since its earliest decisions,

the Court has emphasized that the Fourth Amendment

applies “to all invasions on the part of the government

and its employees of the sanctity of a man’s home and

the privacies of life.” Boyd v. United States, 116 U.S.

616, 630 (1886). See also, Agnello v. United States, 269

U.S. 20, 32-33 (1°26); Interstate Commerce Comm. v.

Brimson, 154 U.S. 447, 479 (1894). The Court has held

that “{t]he right of officers to thrust themselves into a

home is. . . a grave concern, not only to the individual

but to a society which chooses to dwell in reasonable

security. .. ” Johnson v. United States, 333 U.S. 10, 14

(1948). And most recently, it has written that the social

and individual interests in “the sanctity of private

dwellings [are] ordinarily afforded the most stringent

Fourth Amendment protection” and thus “justify the

warrant requirement.” United States v. Martinez-

Fuerte, 428 U.S. 543, 561, 565 (1976).

The high. value placed upon the home in our

Constitutional framework is attributable to its central

and multi-faceted significance in the lives of our

citizenry. In the first instance, the home is property,

and property rights, especially in a dwelling house, are

those “enjoying the longest and strongest support.” N.

Lasson, THE HISTORY AND DEVELOPMENT OF THE

FOURTH AMENDMENT TO THE CONSTITUTION, supra,

at 15, n.9. It is the property interest itself which

ensures that a person has a “legitimate expectation of

privacy” within the home, an expectation which is

grounded in the principle that “‘[o]ne of the main rights

attaching to property is the right to exclude others.”” Rakas

v. Illinois, 58 L.Ed.2d 387, 401 n.12 (1978).

But the Fourth Amendment protects far more than

the mere property interest in the home:

if the physical curtilage of the home is protected, it

is surely as a result of solicitude to protect the

privacies of the life within. Certainly the safe-

guarding of the home does not follow merely from

the sanctity of property rights. The home derives

its pre-eminence as the seat of family life. And the

integrity of that life is something so fundamental

that is has been found to draw to its protection the

principles of more than one explicitly granted

Constitutional right.

Poe v. Ullman, 367 U.S. 497, 551-52 (1961) (Harlan, J.,

dissenting). As the Court’s decisions have underscored,

the home is the, place to which persons may, in

seclusion, repair to exercise undisturbed their rights of

marital privacy, speech and thought. Griswold v.

Connecticut, 381 U.S. 479, 484-485 (1965); see, Stanley

v. Georgia 394 U.S. 557 (1969).

In short, the privacy right which the home encom-

passes is the very essence of the privacy protected by the

Fourth Amendment. For, as Mr. Justice Brandeis

stated, the Framers of the Amendment,

sought to protect Americans in their beliefs, their

thoughts, their emotions and their sensations.

They conferred, as against the Government, the

right to be let alone—the most comprehensive of

rights and the right most valued by civilized men.

To protect that right, every unjustifiable intrusion by

the Government upon the privacy of the individ-

ual, whatever the means employed, must be

deemed a violation of the Fourth Amendment.

Olmstead v. United States, 277 U.S. 438, 478 (1928)

(Brandeis, J., dissenting). Because the home is the focus

of the beliefs, thoughts, emotions and sensations of our

people, privacy within it is entitled to and has always

recieved the utmost protection under the Fourth

Amendment. United States v. Martinez-Fuerte, 428

U.S. at 561; see also, Berger v. New York, 388 U.S. 41,

53 (1967); Camara v. Municipal Court, 387 U.S. 523,

528 (1967). :

In light of the paramount Fourth Amendment

interests in the privacy of the home, the statement of

the majority below that it could “perceive no sufficient

reason for distinguishing between an arrest in a public

place and an arrest in a residence” (A. 76) is

indefensible. The distinction is obvious as this Court

observed even when the seizure of property, rather than

of people, was in question: “it is one thing to seize

without a warrant property resting inan openarea. .. ,

and it is quite another thing to effect a warrantless

seizure of property. . . situated on private premises to

which access is not otherwise available for the seizing

officer.” G. M. Leasing Corp. v. United States, 429

U.S. 338, 354 (1977); see also, Coolidge v. New

Hampshire, 403 U.S. at 513-514 (White, J., concurring

and dissenting).

The majority below concluded, however, that pres-

ence in the home did not confer upona person the same

rights against seizure which attach to his property,

because an entry of the home to arrest was a “minimal

intrusion” into the privacy of the home and because it

was a lesser intrusion than an entry to “search” (A. 75,

76). The court’s conclusion must fail because its

premises are faulty.

The majority erred in assuming that an entry to

arrest was a “minimal intrusion on the elements of

privacy of the home” (A. 76). First, the entry itself

subjects all occupants, not just the suspect, to the

presence of intruders. For example, the intrusion in

Riddick affected not only Riddick himself but also his

three-year old son. Moreover, because the manner in

which home arrests are made is designed to ensure

police safety rather than individual privacy, the entry

will often be a disturbing and disruptive event. See, The

Neglected Fourth Amendment Problem in Arrest

Entries, 23 Stan.L.Rev. 995, 997 (1971). Consider, for

example, the procedure recommended by one recog-

nized [see, Miranda y. Arizona, 384 U.S. 436,449 n.9

(1966)] law enforcement authority:

the agents should move in quickly, force the

subject back into the room and separate inside of

the room, avoiding the danger of cross-fire. In the

event that the door is not unlocked, a pass key

should be quietly inserted and turned without

ai ik i i ila a a Rk a i i a a i i bt

standing in front of the door. One agent should

kick the door aside sharply to determine if anyone

is standing behind it. Again, the agents should

— in quickly and spread out against the near

wall.

C. O’Hara, FUNDAMENTALS OF CRIMINAL INVESTI-

GATION 839 (3d ed. 1973).

Second, beyond the entry and presence of police in

the home, the privacy of its residents is further violated

by police scrutiny of all items in open view. Many of

these, such as private papers and documents, memen-

tos and attire are extremely personal and are left in the

open only because of the expectation of privacy a

person has in his own home. Absent consent, these

objects would not ordinarily be subject to the examina-

tion of others. See, e.g., United States v. Reed, 572 F.2d

412, 415-416 (2d Cir. 1978); Commonwealth v. Forde,

367 Mass. 798, 810, 329 N.E.2d 717, 725 (1975)

(Hennessey, J., concurring) (“the crux of the uncon-

stitutional invasion... lay in the roving eye of the

arresting officer who [entered] the premises.”); Com-

ment, Watson and Ramey: The Balance of Interests

in Non-Exigent Felony Arrests, 38 San Diego L. Rev.

838, 857 n.137 (1976). The extent to which “plain view”

alone invades the privacy of the home is thus not

minimal],

Furthermore, when police arrest in the home, they

do not simply seize and remove the suspect. Rather,

upon entry, they often “fan out” or conduct a

“protective sweep” sending officers throughout the

house. This practice has been approved by manycourts

as necessary to their safety.'’ The officers in these two

cases followed just such a procedure. In Payton, the

police, upon gaining entry, immediately spread out

through the entire apartment. In Riddick, only two of

the four officers actually arrested him in the bedroom

while the others were apparently elsewhere in the

house. Such intrusions can hardly be called “minimal.”

Third, entry into a home for the purpose of arrest

inevitably entails more than a “plain view” of the

premises and its contents, for the arrest itself is

invariably accompanied by an incidental search.

Although limited in scope, this search may be relatively

intensive near the body of the suspect. Depending on

where the suspect may be in the premises, the search

may extend to its most private areas such as the

bedroom or bathroom. When appellant Riddick was

arrested, for example, the police searched under his

pillow and beneath his bed as well as in the drawers of

his dresser. Few areas are more private than these, and

the intrusion into them, although justified by the

circumstances, cannot be dismissed as insignificant.

Finally, many arrests entail an even greater intrusion

than this. Where, for example, upon arrival of the

police, the suspect has the misfortune to be in a remote

corner of his home, they may conduct a search of any

areas of the house large enough to secrete a person,

"See, e.g., United States v. Guidry, 534 F.2d 1220, 1223 (6th Cir.

1976); United States v. Cepulonis, 530 F.2d 238, 244 (Ist Cir.), cert.

denied, 426 U.S. 908 (1976); United States v. Sellars, 520 F.2d 1281 (4th

Cir. 1975); United States v. Looney, 481 F.2d 31 (Sth Cir.), cert. denied,

414 U.S. 1070 (1973); United States v. Briddle, 436 F.2d 4 (8th Cir.

1970), cert. denied, 401 U.S. 921 (1971); Note, Watson and Santana:

Death Knell for Arrest Warrants’, 28 Syracuse L. Rev. 787, 803-04

(1977).

until they discover him. See, Warden v. Hayden, 387

U.S. 294, 298-299 (1967). Where the suspect is not

home at all, the entire house, save for small drawers,

cupboards, and the like, may be searched. In Payton’s

case, for example, the officers seeking to arrest him

searched under the bed and in closets throughout his

apartment. Where an intrusion of this nature occurs,

there is no basis for the majority’s view that in anentry

to arrest “there is no accompanying prying into the area

of expected privacy attending [the suspect’s] posses-

sions and affairs” (A. 76). The very entry of the home is

itself a “prying” into the most private area of all, and

the ensuing search for the suspect may invade the

privacy of all “possessions and affairs” implicated in it.

As a theoretical matter, the majority’s distinction

between a search and an arrest is unsound because it

disregards the nature of the violation of a household-

er’s privacy expectations caused by anarrestentry. The

Fourth Amendment’s reach is not contingent upon

whether some intrusion traditionally called a “search”

has occurred but upon whether there has been an

intrusion, of whatever kind, into an area in which there

is a legitimate expectation of privacy. It is not only the

“rummaging of drawers” against which the Amend-

ment speaks, but against “the invasion of [a person’s]

right to personal security, personal liberty and private

property.” Boyd v. United States, 116 U.S. at 630.'*

''Thus, while tae use of force or violence in entry may create

“circumstances of aggravation,” they are not the crux of the Fourth

Amendment violation. Boyd v. United States, 116 U.S. at 630. Evena

peaceful entry, if not consented to, invades the home’s privacy and is

subject to the warrant requirement. United States v. Reed, 572 F.2d

412, 423 n.9 (2d Cir. 1978); Morrison v. United States, 262 F.2d 449

(DC. Cir. 1958).

The label “’search”’ is thus not entitled to the talismanic

significance given it by the Court of Appeals. Just as

the common law concept of “trespass” failed to

encompass fully the privacy expectations within the

home [compare, Olmstead v. United States, 277 U.S.

438, with Katz v. United States, 389 U.S. 347 (1967)],

the Court of Appeals’ search/arrest dichotomy deni-

grates unjustifiably the true interests at stake.

The Court of Appeals’ erroneous analysis is under-

scored, in concrete terms, by the fact that the privacy

interests affected when arrests are made within the

home are considerably greater than those which this

Court has often protected by imposition of the warrant

requirement when a search has been involved. For

example, the Court has held that expectations of

privacy in a mere footlocker [United States v.

Chadwick, 433 U.S. 1 (1977)], in packages sent through

the mail [Ex parte Jackson, 96 U.S. 727 (1876)], in the

rubble of a burned-out business establishment [ Michi-

gan v. Tyler, 436 U.S. 499 (1978)], and in business

premises open to numerous employees [Marshall v.

Barlow’s Inc., 436 U.S. 307 (1978)] command the

safeguards of the Warrant Clause.'? While the privacy

interest in each of these instances is significant, it is

overshadowed by that which people enjoy in the

privacy of their own homes. It follows, therefore, that if

these lesser interests are protected through interposi-

tion of a neutral magistrate, the greater should be as

'9In Camara v. Municipal Court, 387 U.S. 523 (1967), where the

home was involved but entry was merely to view its contents and

structure to determine compliance with building code requirements, a

warrant was also required.

well.7°

The Fourth Amendment interest in the “security

of. . . persons” adds further justification for the appli-

cation of the warrant requirement in these cases. In

addition to the intrusion on the home, these cases also

involve the “serious personal intrusion” of arrest, an

intrusion which alone may be greater than the invasion

of privacy involved in a search. United States v.

Watson, 423 U.S. at 428 (Powell, J., concurring).

Chimel v. California, 395 U.S. 752, 776 (1969) (White,

J., dissenting). United States v. Watson, supra, did not

hold that the invasion involved in an arrest was

insubstantial, but found that warrantless public arrests

had been universally accepted for so long that they

20The majority also erred in concluding that in terms of its

intrusiveness an arrest in the home was indistinguishable from one

made in public and that, indeed it might even be less so because there

was not the “added exposure” of an arrest in public (A. 76). The

American Law Institute employed the same reasoning in recommend-

ing that no warrant should be required. ALI, A MODEL CODE OF PRE-

ARRAIGNMENT PROCEDURE, Commentary to Section 120.6 at 307

(1975). There is no valid basis for these assumptions. Whether the

offensiveness of a street arrest is greater is largely a matter of individual

circumstance and subjective reaction. Many street arrests occur out of

the view of others or in situations where little or noattention is paid. On

the other hand, arrests within the home frequently cause great

humiliation because of the presence of family, friends or neighbors.

Indeed, Riddick’s arrest in the presence of his three-year-old son may

have caused him great embarrassment and terrified the boy as well. Had

Riddick been arrested in public he would have been spared the

embarrassment of being placed under arrest while naked in bed. More

fundamentally, however, the embarrassment quotient in public vis-a-

vis home arrests is irrelevant to the issue of whether a warrant is

required for the latter. Wherever the arrest occurs, there is present the

intrusion caused by loss of liberty. But when the arrest is made in the

home, there is the additionai intrusion on privacy and it is that intrusion

which triggers the warrant requirement

must be deemed, reasonable. 423 U.S. at 423-24. In that

case, the logic by which warrants would be required for

all invasions of such magnitude had to defer to history.

Id. at 429 (Powell, J., concurring). As we show below,

however, there is no historical basis for exempting the

entry of the home to arrest from the warrant

requirement. See infra pp. 40-55. In the absence of

any such historical basis, the gross intrusion of a

seizure of the person adds further reason for requiring

warrants for arrests in the home. Indeed, it is

“incongruous to pay homage to the considerable body

of law that has developed to protect an individual’s

belongings from unreasonable search and seizure in his

home, and at the same time assert that identical

considerations do not operate to protect the individual

himself in the same setting.” People v. Ramey, 16 Cal.

3d 263, 275, 545 P.2d 1333, 1340. cert. denied, 429 U.S.

929 (1976).

II. The Warrant Requirement Is Essential to the

Protection of the Privacy Interests at Stake

When Arrests Are Made Within the Home.

At the “very heart of the Fourth Amendment” is the

requirement that wher. practicaha search and seizure

should be justified by a magistrate’s judgment that there

is sufficient cause for the intrusion. United States v.

United States District Court, 407 U.S. at 316. In the

context of criminal investigation, it is this requirement

which protects the individual’s legitimate expectation

of privacy against the “overzealous police officer.”

South Dakota v. Opperman, 428 U.S. at 383 (Powell,

J., concurring). As a result, the Court has, in the case of

searches, consistently held that “except in certain

carefully defined classes of cases, a search of private

property without proper consent is ‘unreasonable’

unless it has been authorized by a valid search

warrant.” Mincey v. Arizona, 57 L.Ed.2d 290, 298-299

(1978); Camara v. Municipal Court, 387 U.S. at 528-29.

Where, as in the cases at bar, even greater privacy

interests are invaded than in many “searches,” and

where the warrant provides important protection

against unfounded or excessive invasions, the warrant

requirement should also apply.

The arrest warrant fulfills the same high function as

the search warrant of placing in the hands ofa “neutral

and detached magistrate” the difficult determination of

probable cause. Gerstein v. Pugh, 420 U.S. 103, 113 &

n.12 (1975). Indeed, it was in a case of unlawful arrest

that Lord Mansfield wrote “{i]t is not fit that the

receiving or judging of the information should be left to

the discretion of the officer. The magistrate ought to

judge; and should give certain directions to the officer.”

Leach v. Three of the King’s Messengers, 19 How. St.

Tr. 1001, 1027 (1765); see, United States v. United

States District Court, 407 U.S. at 316. In arrest cases,

of course, the officer has enormous discretion as to

whether, whom, when and where to arrest,” a power

21Where the officer’s discretion is limited, even in search cases, no

warrant may be required. United States v. Martinez- Fuerte, 428 U.S. at

566; South Dakota v. Opperman, 428 U.S. at 383-84 (Powell, J.,

concurring). But in determining probable cause to arrest, the officer

exercises wide-ranging discretion. He must take into account many

facts in highly variable situations and reach a decision which even

courts often find difficult. See, e.g., Beck v. Ohio, 379 U.S. 89 (1964);

Draper v. United States, 358 U.S. 307 (1959). When sucha decision is to

be made, it is far better that it be made by someone whose judgment is

not colored by the “often competitive enterprise of ferreting out Crime.”

Johnson vy. United States, 333 U.S. at 14.

subject to “not infrequent abuse.” Wong Sun v. United

States, 371 U.S. 471, 479 (1962); see, e.g., Bivens v. Six

Unknown Federal Narcotics Agents, 403 U.S. 388

(1971); Lankford v. Gelston, 364 F.2d 197 (4th Cir.

1966). Where there exists such discretion and the

concomitant possibility of error or abuse, it is the

magistrate, and not the potentially “overzealous police

officer” who should judge whether grounds exist for

the entry of a home. See, South Dakota v. Opperman,

428 U.S. at 383 (Powell, J., concurring); Johnson v.

United States, 333 U.S. at i4. Even in arrest cases,

therefore, the warrant provides the “[mJaximum

protection of individual rights” (Gerstein v. Pugh, 420

U.S. at 113), and where a home is to be entered solely

upon a discretionary judgment that there is probable

cause to arrest one of its occupants, that judgment

should be made by a magistrate.

The warrant adds further protection to the citizen’s

rights by specifying the purpose of the intrusion and its

lawful scope. United States v. Chadwick, 433 U.S. at 9.

Officers who have obtained only an arrest warrant will

recognize accordingly that they have autority solely to

make the arrest and the strictly limited search incident

to it. Too often, however, when the police enter a home

without a warrant they fail to distinguish between their

authority to search and to arrest, and engage in a

general search where only a limited one is authorized.

See, e.g., Bivens v. Six Unknown Federal Narcotics

Agents, 403 U.S. at 389. Inappellant Payton’s case, for

example, the police, despite their knowledge, gained

shortly after entry, that he was not at home, conducted

an extensive search of the entire apartment, opening

closets, dresser drawers and cupboards. As Judge

Cooke observed in dissent, “{h]Jad the police in fact

obtained a warrant, limiting the scope of their activities

after entry, their patently illegal actions in conducting a

full-blown search of the premises might have been

avoided” (A. 92-93).

Another purpose of the warrant requirement applic-

able to arrests in homes is that of preventing hindsight

from coloring later evaluations of the entry’s reason-

ableness. United States v. Martinez-Fuerte, 428 U.S. at

565; South Dakota v. Opperman, 428 U.S. at 383

(Powell, J., concurring). That which fortuitously turns

up on entry may well make police actions look, in

retrospect, more reasonable than they were when

taken. Moreover, there is often the question, when the

police enter a home, of whether they intended to arrest

or to search. When an illegal warrantless search is

attempted, justification may later be sought for it on

the grounds that a warrantless entry to arrest would

have been permissible. See, Jones v. United States, 357

U.S. 493, 500 (1957). Where warrants are required for

entries, however, the officer’s authority will be clear

and will not be subject to amendment by hindsight.”

22Police have also been known frequently to engage in the practice of

“timed arrests,” an arrest which has been scheduled for a time at which

they hope to discover not only the suspect but evidence of the crime.

Thus it has been observed that:

In the case of an arrest in the suspect’s home, a timed arrest

could take a number of possible forms. Police might, forexample,

refrain from arresting a suspect until the suspect has entered his

home in the hope that, upon entry into the home to arrest the

suspect, they will discover evidence in plain view or during a

search incident to arrest. Police might also refrain from arresting a

suspect who is in his home until they believe that evidence for

which there is no probable cause to search is in fact present in the

home. Timed arrests amount to an avoidance of the search

warrant requirement, and base the high level of intrusiveness

inherent in a police invasion of the home on the slender reed of a

police officer’s determination that probable cause to arrest exists.

Note, Warrantless Entry to Arrest: A Practical Solution to a

Fourth Amendment Problem, 1978 U. Ill. Law Forum 655, 658

n.21.

Finally, the warrant is crucial because it offers

protection against otherwise irreparable violations of

rights by the police. An individual who is wrongfully

arrested in his home must receive thereafter a judicial

determination of the grounds for holding him before

his detention may be prolonged. Gerstein v. Pugh, 420

U.S. 103. Although that determination may result in

his release, it will come too late to repair the injury done

him. See, Bivens v. Six Unknown Federal Narcotics

Agents, 403 U.S. at 389. And his subsequent release

does nothing to repair the injury to innocent family or

friends in his home whose privacy was also invaded.

Only the warrant requirement can adequately protect

against such injury, for only it prevents such invasions

before they occur and thus protects the innocent as well

as the guilty from violations of their rights. Chimel v.

California, 395 U.S. at 766 n.12. Because of the

supreme protection provided by the warrant for the

security of houses and persons, it is required by the

Fourth Amendment prior to any invasion of the home

to arrest, absent exigent circumstances.

III. The Warrant Requirement for Arrests Within

the Home Imposes No Undue Burden on

Legitimate Law Enforcement Concerns.

The fundamental importance of the privacy interest

within the home is not outweighed by lawenforcement

interests in dispensing with a warrant for home arrests.

In the limited context of arrests within the home, the

warrant requirement imposes no undue burden upon

the police. First, in no way does it prohibit them from

making arrests in a residence if they deem it advisable;

they may always do so under a warrant or without one

when immediate action is necessary. Second, where

no exigent circumstances exist, such as the possibility of

escape, the destruction of evidence, or a life-endanger-

ing emergency, no legitimate law enforcement interest

is served by dispensing with a warrant. Whatever

“slight delay necessary to prepare papers and present

the evidence to a magistrate” may occur is not by itself

“enough to by-pass the constitutional requirement.”

Johnson v. United States, 333 U.S. at 15.

Indeed, in large numbers of routine cases of arrest in

the home, the government has no interest in proceeding

to make the arrest immediately, instead of expending

the short time necessary to obtain a warrant.”? For

example, once a substantial period of time has elapsed

after the crime the need for immediate entry of the

home to arrest has evaporated. In such a case, by the

time the police seek a suspect at home, they will have

determined both his identity and the location of his

residence. The danger present in “hot pursuit” situa-

tions that the suspect may never even be identified does

not exist. Moreover, the very act of the police in

seeking him out at his home demonstrates their belief

231n fact, the police make a substantial number of arrests long after a

crime has been committed. LaFave, Warrantless Searches and the

Supreme Court: Further Ventures Into the Quagmire, 8 Crim. L. Bull.

9, 22-23 (1972). Conversely, a significant number of arrests are made

within a very short time after a crime has been committed. President’s

Commission on LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE,

TASK Force REPORT: SCIENCE AND TECHNOLOGY 96 (1967). These

arrests often involve exigent circumstances and thus would be excepted

from the warrant requirement. See, Note, Warrantless Entry to Arrest:

A Practical Solution to the Fourth Amendment Problem, supra, n.22 at

666 n.71. In the latter cases the arrest is frequently made in public, at the

scene of the crime, and the warrant requirement does not even apply.

that he has neither fled the jurisdiction nor gone into

hiding. Thus, where the crime was committed some

time before and the suspect is still in his home, the

danger of escape or other harm dissipates and there is

nothing to be said for dispensing with a warrant.

Furthermore, that a routine arrest is to be made in

the home in itself usually means that the police have

ample opportunity to obtain a warrant. Except in hot

pursuit cases, or in other cases of sudden exigency, the

decision to arrest in the home is deliberate and is made

some time in advance of the actual arrest. The police

must, at the least, proceed from the station-house to the

suspect’s house in order to make it; in the routine case,

there is no reason why they should not also take the

additional time to obtain authorization for their

actions. Also, the procedure recommended for arrests

in a building, and used in both cases at bar, is that they

be made by a number of police officers. C. O’Hara,

FUNDAMENTALS OF CRIMINAL INVESTIGATION, supra,

at 839. During the time required to gather reinforce-

ments and proceed to the site, one of the officers could

easily obtain the warrant. ,

In both cases herein, obtaining a warrant would have

been no hindrance whatever to the police. Both crimes

had been completed days or months before and still the

police believed appellants were in their homes. Addi-

tionally, the police themselves failed to attempt an

arrest at the first opportunity. This deliverate delay

on their part strongly suggests that the slight additional

delay to obtain a warrant would not have been at all

burdensome. In such cases as these, which are by no

means atypical, the claim that a warrant requirement is

an onerous burden upon the police is unfounded.”

In United States v. Watson, however, Mr. Justice

Powell suggested that imposition of a warrant require-

ment for arrests might pose a serious dilemma for the

police. 423 U.S. at 431-432. If they sought a warrant

immediately upon obtaining probable cause, that

warrant might go stale before execution. If they

delayed obtaining a warrant, and a sudden emergency

required an immediate arrest, a court might hold their

failure to get the warrant inexcusable because they had

the opportunity to do so. The burden which results

from this dilemma is negligible. First, as Mr. Justice

Powell himself noted, arrest warrants will rarely go

stale. 423 U.S. at 432 n.5. This is so because probable

cause to arrest is predicated on suspicion of an

ineradicable crime rather than on the momentary

presence of evidence or contraband at a particular

location. Accordingly, an arrest warrant tends to

remain valid indefinitely. Thus, in Riddick’s case,

24Such routine cases of delayed arrest in the home are precisely the

types of cases in which the warrant furnishes the greatest protection

against unreasonable entries. In such cases, the police often believe they

have cause to arrest based on information obtained some time after

commission of the crime; the belatedly obtained information may well

be suspect, and examination by the neutral eye of the magistrate is most

necessary to protect individual rights against overzealous action. Thus,

even the United States Government has suggested that:

because entries to make arrests for crimes long completed are

more likely to be mistaken, and are more open to abuse, than are

entries to arrest individuals for freshly committed or ongoing

crimes, the Court might hold that warrants ordinarily should be

obtained to make arrests for crimes completed more than a few

hours prior to the arrest.

Brief for the United States in United States v. Santana, 427 U.S. 38

(1976) at 47 (emphasis ours).

where the police had probable cause for nine months,

there would not have been a staleness problem. See,

e.g., Wilson v. United States, 325 F.2d 224 (D.C. Cir.

1963) (five month delay in execution of arrest warrant

sustained). Moreover, if police delay making an arrest

or search and the sudden need to do so arises, the

exigency will excuse the failure to get the warrant. See,

United States v. Lisznyai, 470 F.2d 707, 710 (2d Cir.

1972) cert. denied, 410 U.S. 987 (1973). Therefore, the

burden, if any, posed by this dilemma is, in the context

of the privacy interests involved here, constitutionally

insignificant.?°

Lastly, the view that obtaining arrest warrants for

arrests in private dwellings is an intolerable burden is

belied by contrary views of authorities on law enforce-

ment. The Federal Bureau of Investigation, for one,

makes a practice of obtaining warrants for all arrests if

time permits. Brief for the United States in United

States v. Watson, 423 U.S. 411 (1976) at 26 n.15. In

5In their brief to the Court of Appeals in the Payton case, the

prosecution argued that a mandatory warrant requirement would also

be burdensome because “{o]nce probable cause develops, the officer’s

judgment may be that further steps in the investigation should

immediately be taken concerning the crime, the location of the suspect,

or how to effect his arrest,” and that “[g]iven the practical limitations on

law enforcement resources assigned to the case, such steps may not be

possible if the officer must take time out from the investigation to

obtain an arrest warrant.” (Brief, pp. 91-92). This argument sets up a

false predicament, however, for the hypothetical officer need not

choose between obtaining the warrant and investigating further; he may

do both by waiting to get the warrant until after his investigation is

complete. In choosing to continue his investigation, rather than

arresting immediately, the officer apparently perceives no risk of

escape, and the slight additional] delay in getting the warrant imposes no

burden.

addition, a leading text on criminal investigation

counsels that “{i]f it is necessary to effect an arrest ina

hotel or apartment house, a warrant should be

obtained if time permits.” C. O'Hara, FUNDAMENTALS

OF CRIMINAL INVESTIGATION, supra, at 839.

As these authorities apparently agree, there is no

undue hindrance to law enforcement involved in

obtaining warrants for home arrests. Whatever extra

efforts the police must make to get a warrant is an

insignificant burden in comparison with the impor-

tance of the privacy the warrant protects. Thus, the

warrant requirement is fully consistent with “the view

of those who wrote the Bill of Rights that the privacy of

a person’s home and property may not be totally

sacrificed in the name of maximum simplicity in

enforcement of the criminal law.” Mincey v. Arizona,

57 L.Ed.2d at 301.

IV. The History of the Common Law of Arrest

Requires No Different Result.

As we have shown, traditional Fourth Amendment

analysis, which balances the right to privacy against the

needs of law enforcement, compels the conclusion that

warrants are required for the entry of a home to arrest.

In United States v. Watson, however, the Court

considered a factor outside the traditional analysis—

the history of the common law of arrest—in determin-

ing that warrants were not required for arrests in

public. The nature of the common law with respect to

warrantless arrests within private dwellings is so

markedly different from that which governed public

arrests that it cannot serve as a meaningful guide to

resolution of the issue in this case.

The common law concerning warrantless public

arrests rehearsed in Watson was remarkable for its

clarity, its abundance and its continuity. The rule that

felony arrests in public cou!d be made without warrant

had been formulated in unequivocal fashion from the

seventeenth century. Since that time, numerous cases

in both England and America had reiterated the rule,

and there had been not a single case, until Watson

itself, in which a court had required a warrant for a

public felony arrest. Perhaps most significantly, the

rule was well established at the adoption of the Fourth

Amendment and nothing suggested that the Framers

intended to abandon it. United States v. Watson, 423

U.S. at 429-430 (Powell, J., concurring). Given the

universal acceptance of the rule, when this nation was

founded and ever since, the conclusion was compelling

to a majority of the Court that warrantless public

arrests were reasonable and that the Framers of the

Fourth Amendment had implicitly approved them.

As we demonstrate below, however, the state of the

common law with respect to arrests in the home was

altogether different and does not permit the same

conclusions to be drawn. As the Court has previously

recognized, therc was never on this question the

universal agreement which existed concerning the

propriety of warrantless arrests in public. Miller v.

United States, 357 U.S. 301, 307-308 (1958). Indeed,

despite considerable disagreement, a strong current of

authority throughout the eighteenth and nineteenth

centuries required warrants for non-exigent arrests ina

Suspect’s home. The recent authority considering the

question in light of Fourth Amendment principles has

overwhelmingly required such warrants. Under these

circumstances, legal history provides no guide to the

proper construction of the Fourth Amendment.

A. The Common Law of Entries to Arrest Was

Wholly Unsettled at the Framing of the

Constitution.

In this case, unlike Watson, reliance on the common

law rule would be especially misplaced, for the rule

regarding entries to arrest was in substantial dispute at

the time of the adoption of the Fourth Amendment. In

Watson, the rule permitting warrantless arrests in

public was well accepted by the end of the eighteenth

century and had been adopted implicitly by the Second

Congress. This circumstance permitted the inference

that the “constitutional provision was intended to

restrict entirely different practices.” 423 U.S. at 430

(Powell, J., concurring). Here, however, the uncertain

status of the law concerning entries of a home to arrest

allows no conclusion to be drawn concerning the intent

of the Framers regarding them.

Insofar as the term “common law” denotes a

continuous series of judge-made rulings on an issue,

there was no common law of arrest entries. Prior to the

adoption of the Constitution, the only English cases

even remotely addressing the subject dealt with when

doors might be “broken” in the execution of civil

process, a question separate from that of entry in a

art

criminal case.?° See, Blakey, The Rule of Announce-

ment and Unlawful Entry: Miller v. United States and

Ker v. California, 112 U. Pa. L. Rev. 499, 501 (1964)

(“The extent to which privilege of the house extended

to criminal rather than civil cases seems never to have

been considered squarely.”’). The dicta in those cases do

not clearly establish whether or not a warrant was

necessary to break doors to make a felony arrest.

At the adoption of the Fourth Amendment, the most

recent case on the subject was Semayne’s Case, 77 Eng.

Rep. 194 (K.B. 1603), and it was then almost two

The common law was concerned with when a “breaking” might be

committed to effect an arrest, but the word “breaking” was a term of art

which did not denote the actual physical destruction of property or

forcible entry. At its broadest, the term included virtually any

trespassory entry. See, 2 E. East, PLEAS OF THE CROWN 485 (1803)

(“every entry by a trespasser [is] a breaking in law”); M. Dalton, THE

CouNTRY Justice 299 (1697) (where persons come armed “to an House

that is open ... and shall there enter peaceably without any

disturbance; yet this is a Forcible Entry, for it shall be intended, that

they would have used force, if they had been resisted”). Even in the

somewhat narrower use of the term in the law of burglary, no force was

required to constitute a breaking. For example, the entry made by

opening fully a partially opened door was a breaking. R. Perkins,

CRIMINAL Law 193 (2d Ed. 1969). Indeed, a constructive breaking

could occur where an occupant of the house opened a door to intruders

ang they entered peaceably. See, e.g., Commonwealth v. Lowrey, 158

Mass. 18, 32 N.E. 940(1893) (Holmes, J.) (if an innocent hand opens the

door to an intruder it is a breaking); State v. Mordecai, 68 N.C. 207

(1873); (peaceable entry); Johnston v. Commonwealth, 85 Pa. 54, 64

(1877); Parke v. Evans, Hob. 62,80 Eng. Rep. 211 (K.B. 1615). Thus, in

by a young boy, their abrupt entry without seeking or obtaining consent

constituted a common law “breaking.”

centuries old.?’ In that case, the court had held that the

defendant was entitled to refuse entry to his home to

officers executing a writ of attachment upon property,

since the officers had not made known that they came

with civil process and requested entry. 77 Eng. Rep. at

199. In the course of its discussion, the court consi-

dered, in dicta, the question of when doors might be

broken “either to arrest . . . or to do other execution of

the K[ing’s] process.” 77 Eng. Rep. at 195 (emphasis

ours). The court concluded that on suspicion of

felony,”8 an officer

27The only other case on the subject was decided three centuries

before the American revolution and is found in the 13th Yearbook of

Edward IV (1461-1483), at folio 9. It too contains only dicta concerning

arrests or suspicion of felony, for it concerned only when doors might be

broken to serve civil process. Miller v. United States, 357 U.S. 301,

307 (1958). The court's discussion says that where there is suspicion of

felony, doors may be broken to arrest because the writ is a non omittas,

the obvious presumption is that there will be a writ, or warrant, of some

kind. Accarino v. United States, 179 F.2d 456, 460 (D.C. Cir. 1949).

28We deal here only with the common law rules applicabie to arrests

made “on suspicion of felony,” the ancient equivalent of our probable

cause. The common law distinguished between suspicion of felony and

actual “knowiedge” of felony, the difference consisting of whether the

constable “saw the felony committed, or hath it only by complaint and

information.” 2 M. Hale, THE HISTORY OF THE PLEAS OF THE CROWN 91

(1736). Everyone agreed that where the constable actually had

witnessed the felony, that is “[wJhere one known to have committed a

Treason or Felony ... is pursued,” doors could be broken without

warrant. 2 W. Hawkins, PLEAS OF THE CROWN 86 (1716). All the old

language to the effect that doors could be broken open on “knowledge”

or “for felony,” simply states the well accepted doctrine that warrantless

entries may be made in “hot pursuit.” Warden v. Hayden, 387 U.S. 347

(1967). The only question of interest here is what the common law

authorities thought of arrests which were not made in hot pursuit, that

is, of arrests on “suspicion,” rather than knowledge, of felony. On this

question there was no agreement.

may break the house to apprehend the felon, and

that for two reasons:

1. For the commonwealth, for it is for the

commonwealth to apprehend felons.

2. In every telony the King has interest, and where

the King has interest the writ is non omittas

propter aliquam libertatem [to be executed not-

withstanding any liberty]; and so the liberty or

privilege of a house doth not hold against the King.

77 Eng. Rep. at 197. Aside from its lack of relevance to

the Fourth Amendment,” the most striking facet of the

case is that it does not say whether or not a warrant was

required for the breaking. Indeed, both the references

to “other . .. process” and to “the writ” in connection

with the breaking to arrest imply that some warrant or

other judicial authorization was contemplated.

The complete absence of any case law following

Semayne’s Case led to understandable confusion

among the commentators about what the actual rule was.

One strong current of authority contended that judicial

authorization was necessary for the entry of a home

The reasoning of Semayne’s Case is appropriate only to the

determination of the relationship between the King and a feudal lord

and not between the modern state and the citizen which is governed by

the Fourth Amendment. The writ referred to in the text, non omittas

propter aliquam libertatem, was a writ employed by the medieval Kings

to restrain the independence of those lords who held private rights of

doing justice in their own domains, called “liberties.” When the lord’s

steward refused to execute the King’s writ within the liberty, the King’s

court would issue the non omittas writ directing the sheriff to execute it

himself, notwithstanding the existence of the liberty. H. Cam, LIBERTIES

AND COMMUNITIES IN MEDIEVAL ENGLAND 191-92 (1944). Thus, the

King established himself as the primary source of justice in a judicial

system fragmented by feudal rights. In this light, Semayne’s Case

appears correctly as an expression of the growth of the power of the

modern state; the Fourth Amendment stands, however, as a recognition

that that very power had grown too great and must be limited.

“on suspicion of felony,” absent the ancient equivalent

of exigent circumstances. Lord Coke was an early

proponent of this view. In his opinion, entry of a home

to arrest could be made only by a warrant (capias)

issued after an indictment, or on hue and cry, that is in

“hot pursuit,” without a warrant. E. Coke, 4 Inst. *177.

Otherwise, a man’s home was his castle and could not

be entered even upon a warrant issued by a justice of

the peace. /d. Thus, so sacred was the home for Coke

that in the absence of exigency he required a finding of

probable cause to be made by a grand jury, rather than

a mere magistrate.

A number of later authorities continued to follow

Coke’s view or some modified version of it. Hawkins,

for example, after noting that doors could be broken

where one “known” to have committed a felony was

“pursued,” added, “[bJut 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.

2 W. Hawkins, PLEAS OF THE CROWN 86-87 ( 1716).

Similarly, at the outbreak of the American revolution

Justice Foster, in the second edition of his treatise,

flatly stated, “[bJut bare suspicion touching the guilt of

the party wili not warrant a proceeding to this

extremity [breaking doors], though a felony hath been

actually committed; unless the officer cometh armed

with a warrant from a magistrate grounded on such

suspicion.” M. Foster, CROWN LAW 321 (2d ed. 1776).

Finally East, writing at the end of the century, held the

same view:

But though a felony have been actually committed,

yet a bare suspicion of guilt against the party will

not warrant [breaking doors], unless the officer be

armed with a magistrate’s warrant grounded on

such suspicion. It will at least be at the peril of |

proving that the party so taken on Suspicion was

guilty.30

1 E. East, PLEAS OF THE CrRoWN 322 (1803). East

emphasized the necessity for a warrant in discussing the

principle that the home could be entered, without a

warrant, to rearrest.a suspect. After explaining the

principle, he added: “If it be not, however, upon fresh

pursuit, it seems that the officer should have a warrant

from a magistrate.” /d. at 324 (emphasis ours). Thus, at

the end of the eighteenth century, substantial authority

held that a warrant was necessary to “break doors” to

arrest, absent some exigency.?!

There was, of course, contrary authority. Hale, for

example, supposed a general authority of the King’s

officers to enter homes without warrants to arrest on

suspicion of felony. | M. Hale, THE HIsToRY OF THE

PLEAS OF THE CROWN 588 (1736). Even Hale, however,

recognized that the better practice was to obtain the

warrant when ever possible: “Yet to avoid question in

these cases, it is best to obtain the warrant of a justice, if

*°The significance of this last sentence will be dealt with at pages 54, 55,

infra.

*'The drafters of the ALI Model Code believed this to be the

prevailing common law view: “{a]t common law officers were

authorized to break into a house to effect an arrest on/y if the arrest was

under a warrant, or according to some but not all authorities without a

warrant on suspicion of felony.” ALI, A Mopet Cope oF PRE-

ARRAIGNMENT PROCEDURE, Commentary to §120.6, at 308 (1975)

(emphasis ours).

the time and necessity will permit.” /d. at 589.3?

Moreover, Hale permitted such extreme measures to

be taken only if a felony had aczually been committed:

“But there must be a felony in fact done, and the

constable must be ascertained of that, and aver it in his

plea, and it is issuable [that is, triable as an issue inan

action for false imprisonment or trespass].” 2 M. Hale,

supra, at 92; see, also, | M. Hale, supra, at 588. Hale’s

authorization of warrantless breakings to arrest is thus

heavily qualified by his admonition that warrants

should be gotten whenever possible and by his imposi-

tion of civil liability on officers who made good faith

arrests in the mistaken belief that a felony had been

committed.

The only remaining authority clearly permitting

warrantless breakings is the influential Blackstone:

And, in case of felony actually committed, or a

dangerous wounding whereby felony is like to

ensue, [the constable] may upon probable suspi-

cion 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....

4 W. Blackstone, COMMENTARIES *292. Blackstone’s

statement of the proposition is remarkable only for the

absence of his usual thoroughness in treating the

varying opinion on the subject; his only citation is to

Hale. In adopting Hale’s view without comment,

however, Blackstone also took the position that

warrantless entries to arrest were permissible only “in

32Apparently because of this, one later commentator assumed that

Hale permitted entries only upon a warrant. See, R. Burn, THE JUSTICE

OF THE PEACE AND PARISH OFFICER 107 (16th ed. 1788).

aaa a I i 0 a mace

case of felony actually committed.” /d. Thus, according

to both Blackstone and Hale, an officer could insulate

himself from liability for a mistaken arrest only by

obtaining a warrant.33 7

By the end of the eighteenth century, therefore, the

common law was in substantial disarray over the

question of breaking doors to arrest on suspicion.

There were simply no cases on the subject. Among the

commentators there was, as we have shown, substan-

tial disagreement. See also, Blakey, The Rule of

Announcement and Unlawful Entry: Miller v. United

States and Ker v. California, supra, 112 U. Pa. L. Rev.

at 502 n.30. The most that can be said is that many

authorities did require warrants, and that those who

did not permitted warrantless breakings only in limited

circumstances.

Under these circumstances, it cannot be inferred that

the Framers of the Fourth Amendment intended

either to approve or disapprove warrantless entries of

the home to arrest. Compare United States v. Watson,

423 U.S. at 429-430 (Powell, J., concurring); see, Note,

Forcible Entry to Effect a Warrantless Arrest— The

Eroding Protection of the Castle, 82 Dick. L. Rev. 167,

182 (1977). The Framers never specifically addressed

the question, and there is no way to know whether they

would have adopted Hale’s view over Foster’s, had they

given it thought. All that we really know is that the

Framers “intended the Fourth Amendment to safe-

guard fundamental values which would far outlast the

specific abuses which gave it birth,” (United States v.

3Dalton is sometimes cited as being in accord with this view, but in

fact he does not say whether a warrant is required for an arrest on

suspicion of felony. M. Dalton, THE Country JusTICE 307 (1697).

Chadwick, 433 U.S. at 9), and that the value they most

wished to safeguard was the privacy of the home. /d. at

8: see United States v. United States District Court, 407

U.S. at 313.

B. The Common Law Authorities in the Nine-

teenth Century Remained Divided on the

Warrant Requirement.

Examination of the American common law authori-

ties of the nineteenth century demonstrates that the

rules concerning breakings to arrest did not become

settled during that period. Many commentators con-

tinued to be of the opinion that warrants were required

before a house could be broken on suspicion of felony.

Indeed, Russell, after stating that suspicion would not

authorize a breaking “unless the officer comes armed

with a warrant from a magistrate” goes on to say that “a

different doctrine appears to have formerly prevailed

upon this point; by which it was held, that if there were

a charge of felony laid before the constable and reasonable

ground of suspicion, such constable might break open

CRIMES AND MISDEMEANORS 628-29 (Sth Am. ed. 1845)

(emphasis ours). In Russell’s opinion, the earlier views

of Hale and Blackstone had been superseded.

Likewise, numerous other authorities believed that

warrants were necessary to break a house on suspicion.

Some stated the rule as an inescapable requirement.

See, F. Heard, A TREATISE ADAPTED TO THE LAW AND

PRACTICE OF THE SUPERIOR COURTS . . . IN CRIMINAL

Cases 148 (1879). Others, adopting East’s formulation,

stated that the warrant was generally required but that

an officer might possibly escape civil liability for

omitting it by proving that the arrestee was actually

guilty of a felony:

_ For where a person lies under probable suspi-

cion only, and is not indicted, it is said to be the

better opinion, that the breaking open doors

without a warrant, in order to apprehend him

cannot be justified: or must at least be considered

as done at the peril of proving that the party, so

apprehended on suspicion, is guilty.

1 W. Russell, supra at 629; accord, 2 O. Barbour, A

TREATISE ON THE CRIMINAL LAW AND CRIMINAL

COURTS OF THE STATE OF NEW YorkK 547 (3d ed. 1883)

(adding, “‘it will be prudent to obtain the warrant of the

magistrate. .. under which the officer will be justified in thus

proceeding”); | J. Colby, A PRACTICAL TREATISE ON

THE CRIMINAL LAW AND PRACTICE OF THE STATE OF

NEw YorK 73 (1868); A. Tiffany, A TREATISE ON THE

CRIMINAL LAW OF THE STATE OF MICHIGAN 97 (5th ed.

1900). The cautious “at least” of the commentators

correctly suggests that it was in doubt whether an

officer could justify his actions by showing the suspect’s

guilt or whether he was absolutely liable whenever he

made a warrantless breaking on suspicion.

Again, other authorities would have imposed no

warrant requirement, although they conceded the

actual state of the law was in doubt. Chitty catalogued

the varying opinions before deciding that a warrant

was not necessary for an officer acting in good faith. |

J. Chitty, CRIMINAL LAW 53 (3d Am. ed. 1836).34

Even Chitty is cautious about eliminating the warrant, however,

stating that “the breaking an outer door is, in general, so violent,

obnoxious and dangerous a proceeding, that it should be adopted only

in extreme cases, where an immediate arrest is requisite.” | J. Chitty,

CRIMINAL LAW 53 (3d Ar. ed. 1836).

Bishop also notes the conflict, stating as a reason for it

that “the adjudications are few, and much of the doc-

trine on this subject in our books is drawn from the old

dicta.” 1 J. Bishop, CRIMINAL PROCEDURE 109 n.6 (3d

ed. 1880).

Although Bishop argues that warrants should not be

necessary, he is among the first to give reasons for his

view, and those reasons demonstrate why the views of

common law authorities are not an adequate guide to

construction of the Fourth Amendment. The first

ground given for dispensing with the warrant for

arrests in the home is that such arrests are “in behalf of

the State.” Jd. This argument, obviously a holdover

from the notion that no liberty was a sanctuary against

the King’s writ, conflicts with the very notion that the

Fourth Amendment is a restraint on the State’s ability

to intrude on a citizen’s privacy, even when the State

acts in its own “behalf.” Were Bishop’s reasoning to be

accepted, then any search for evidence of crime could

be conducted without a warrant too, for such proceed-

ings are also in the State’s interest.

Bishop’s second reason for omitting the warrant Is

even stronger grounds for rejecting nineteenth century

views in the matter. According to him, the warrant 1s

not necessary because “the question of warrant or no

warrant pertain{s] to form, not substance.” /d. It would

be hard to imagine any view more in conflict with

modern Fourth Amendment law under which the

warrant is the primary protection of Fourth Amend-

ment rights. See, Coolidge v. New Hampshire, 403 U.S.

at 481. |

Finally, Bishop expressed concern that the require-

ment of a warrant might lead to escape. | J. Bishop,

a cn mmr ema

supra at 196 n.6. But as we have noted, where there is

genuine danger of escape, there are exigent circum-

Stances and no warrant is required under the Fourth

Amendment. Johnson v. United States, 333 U.S. at 15.

Whether or not Bishop’s reasoning, so foreign to the

twentieth century, was even accepted in the nineteenth

is impossible to determine, for there is an almost

complete absence of cases on the subject.35 A few cases

quote Hale or Blackstone approving warrantless

entries but always in cases where the issue is not in

question. See, Shanley v. Wells, 71 Ill. 78, 81-82 (1873)

(quoting Blackstone, but holding a public arrest illegal,

despite the existence of probable cause, since the

Suspect was in fact innocent); McLennon v. Richard-

son, 81 Mass. 74, 71 Am. Dec. 353 (1860) (holding

warrantless entry of a shop to arrest for liquor and

*SResearch has disclosed only one nineteenth century American case

which actually deals with a warrantless entry to arrest for felony and in

that case there were exigent circumstances. In Randall’s Case, 5 City

Hall Record 141 (N.Y. Court of Oyer and Terminer 1820), the court

held that immediately after a “dangerous wounding” an officer could

enter a home in order to prevent the suspect's escape. The court made a

specific finding that “if the delay was to be incurred, of going for and

coming with a warrant, the prisoner might have escaped and public

justice have been evaded. . . .” /d. at 161. So heavily did the court rely

on the exigent circumstances rationale that the case was later cited for

the proposition that generally a warrant was necessary for an arrest in

the home. 2 O. Barbour, A TREATISE ON THE CRIMINAL LAW AND

CRIMINAL COURTS OF THE STATE OF NEW YORK 547 n.28 (3d ed. 1883).

The earliest nineteenth century English case to consider the question

was Davis v. Russell, 5 Bing. 355, 130 Eng. Rep. 1098 (C.P. 1829) in

which the court approved warrantless entries in dictum. In that case, the

entry of the home was apparently by consent. /d. at 356, 365; 130 Eng.

Rep. at 1098, 1102. The English authorities we have cited, such as Chitty

and Russell, do not seem to have accepted this case as authoritative on

when warrantless entries could be made. Indeed, the modern English

rule still seems to be in doubt although tending to require a warrant. |

W. Russell, ON CRIME 672 (J. Turner, ed., 12th ed. 1964).

gambling offenses illegal, because the offenses did not

“disturb the public peace”). It is notable that in most

cases concerning entries to arrest in this period, the

officer actually did have a warrant.*° This suggests that

when a home was to be entered securing a warrant was

the usual procedure.

The incentive for officers to obtain warrants is

readily apparent. Although the law was confused, a

large body of authority held that an officer who failed

to get a warrant was absolutely liable in tort for

trespass and false imprisonment if the suspect he

arrested turned out to be innocent. This was the import

of the formula that a warrantless breaking was not

justifiable “or must at least be considered as done at the

peril of proving that the party ... is guilty.” | W.

Russell, CRIMES AND MISDEMEANORS, supra, at 629.

This meant that if the officer mistakenly arrested an

innocent person by entering his home, the officer

would be strictly liable in money damages ina civil suit.

That the officer had probable cause would be no

defense. Cf., Shanley v. Wells, 71 Ill. 78, 81-82 (1873)

(probable cause no defense for mistaken arrest, even in

public); Wakely v. Hart, 6 Binn. 316, 319 (Pa. 1814).*”

See, e.g., Kelsy v. Wright, | Root 83 (Conn. 1783); State v. Shaw, |

Root 134 (Conn. 1789); Read v. Case, 4 Conn. 166, 10 Am. Dec. 110

(1822); Hawkins v. Commonwealth, 53 Ky. 395, 61 Am. Dec. 147

(1854); Barnard v. Bartlett, 64 Mass. 501, 57 Am. Dec. 123 (1852);

Commonwealth yv. Irwin, 83 Mass. 587 (1861); Commonwealth y.

Reynolds, 120 Mass. 190,21 Am. Rep. 510(1876); State v. Smith, | N.H.

346 (1818); State v. Mooring, 115 N.C. 709, 20 S.E. 182 (1894).

37In contrast with the plaintiffs in these early cases, a modern plaintiff

asserting the same causes of action faces virtually .iisuperable

difficulties in overcoming the various good faith and immunity defenses

an officer may interpose. See, e.g., Thompson v. Anderson, 447 F.

Supp. 584 (D. Md. 1977) (even though officer lacked probable cause to

believe suspect was in home, he was not liable for entry and search

because of unwritten standard operating procedures approved by the

police department permitting such practice).

Thus the rule provided a powerful deterrent against

making warrantless arrests in the home, for the officer

would pay out of his pocket if he were honestly

mistaken and this rule of law applied; if, however, he

obtained an arrest warrant, he was insulated from

liability for his errors.

As in the eighteenth century, the nineteenth century

American common law had not settled whether a home

could be entered without warrant to arrest fora felony. '

Some authorities held that no warrant was necessary,

but their reasoning, that the warrant was a matter of

“form, not substance,” is severely at odds with the

modern Fourth Amendment. The opposing rule, that

warrants were necessary to insulate an officer from the

consequences of his errors, was accepted by many

authorities and provided a powerful incentive to

officers to secure warrants lest they be held liable in

civil actions. The obsolete common law rules of

liability thus played a salutary role in insuring that

officers sought a magistrate’s approval before entering

homes. The American common law of the nineteenth

century thus provides no basis for exempting entries to

arrest from the Warrant Clause of the Fourth

Amendment, or to use Mr. Justice Powell’s words, this

is not a case where “logic . . . must defer to history and

experience.” United States v. Watson, 423 U.S. at 429.

C. Modern Courts, Examining Arrest Entries

in Light of Fourth Amendment Interests,

Have by a Substantial Majority Found

Them Subject to the Warrant Requirement.

The first American case ever to approve the warrantless

entry of a home to arrest absent exigent circumstances was

decided in 1911. Commonwealth v. Phelps, 209 Mass.

396, 95 N.E. 868 (1911). While this case remained the

principal authority for some time, by mid-century the

right of police to break down doors to arrest was

severely questioned. See, Accarino v. United States,

179 F.2d 456 (D.C. Cir. 1949). Since then as courts

have begun to take account of the governing Fourth

Amendment principles, the balance of authority has

shifted so that most federal circuits now require

warrants for arrests in the home as do the vast majority

of states to have considered the issue.

For a period of time at the end of the nineteenth and

beginning of the twentieth century the bulk of

authority was statutory, and many, but not all, states

adopted provisions permitting warrantless arrests in

homes.2 The apparent reasons for passage of these

Only twenty states now have statutes permitting warrantless arrest

entries whose validity has gone unquestioned by their state courts. See

Ala. Code §15-10-4 (1977); Alaska Stat. §12.25.100 (1972); Ark. Stat.

Am. §43-414 (1964); Fla. Stat. Ann. §901.19 (1973); Hawaii Rev. Stat.

§803-11 (1972); Idaho Code Ann. §19-611 (1948); lowa Code Ann.

§755.9 (1950); Kan. Code Crim. Proc. §22-2405 (1974); Miss. Code

Ann. §99-3-11 (1972); Mo. Ann. Stat. §544.200 (1953); Mont. Rev.

Code Ann. §95-602 (1969); Neb. Rev. Stat. §29-411 (1975); Nev. Rev.

Stat. §171.138 (1967); N.Y. Crim. Proc. Law §§ 120.80, 140.15 (1971);

N.C. Gen. Stat. §15A-401(3) (1978); N.D. Cent. Code Ann. §29-06-14

(1974); Ohio Rev. Code Ann. §2935.12 (1975); Tenn. Code Ann. §40-

807 (1975); Tex. Code Crim. Proc. Art. 15.25(Vernon 1977); Utah Code

Ann. §77-13-12 (1968). Courts in five other states with statutes have

seriously questioned their validity or applied exigency analysis without

reaching the constitutional question. See Srate v. Ranker, ... LA. ——,

343 So.2d 189 (1977); People v. Little, 78 Mich. App. 170, 259 N.W.2d

412(1977); State v. Lasley, 306 Minn. 224, 236 N.W.2d 604 (1975); State

v. Girard. 276 Ore. $11, 555 P.2d 445 (1976); State v. Teuber, 19 Wash.

App. 654, 577 P.2d 149 (1978). On the other hand, sixteen states now

authorize arrest entries only under warrant. See cases cited infra at pp.

$7. $8 and Conn. Gen. Stat. Ann. § 30-106 (1975); Ga. Code Ann. §27-

205 (1972); Ky. Rev. Stat. §70.078 (1971); Okla. Stat. Ann. tit. 22, §194

(1969); S.C. Code Ann. §23-15-60 (1977); Wyo. Stat. Ann. §7-165

(1967). Thus, roughly equal numbers of states, including those whose

only authority is statutory, now approve and disapprove warrantless

arrest entries.

Statutes show that the statutes themselves are irrelevant

to interpretation of the Fourth Amendment. First, the

Statutes arose at a time when even respected commen-

tators held the warrant to be only a matter of form, a

view the codifiers probably shared. See, 1 J. Bishop,

CRIMINAL PROCEDURE supra, at 109 n.6. Second, there

was actually less need for a warrant requirement in an

age where an officer faced substantial civil liability for

an honestly mistaken arrest, for officers were thus

deterred from acting in questionable situations. Final-

ly, the codifiers, at least in New York, did not profess to

take into account the privacy interests involved, but

tried only to have the confusing law of arrest “com-

pressed into a few plain and intelligible directions.”

Report of the Select Committee for the Code of

Criminal Procedure, New York State Assembly, sub-

mitted March 2, 1855, at 87. Because the drafters of

these statutes failed to take account of the role of the

warrant in safeguarding Fourth Amendment interests,

and because they sought merely to simplify arrest law,

the statutes themselves provide no guide to construc-

tion of the Fourth Amendment.

With few exceptions, the courts which have ex-

amined the need for warrants in light of the Fourth

Amendment interests they serve have rejected the old

statutory position and have found a warrant require-

ment. In the federal courts, for example, six circuits

now hold that the Fourth Amendment imposes a

warrant requirement on entries to arrest,?? while only

** Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1969); United

States v. Reed, 572 F.2d 412 (2d Cir. 1978); Vance v. North Carolina,

432 F.2d 984, 990-91 (4th Cir. 1970); United States v. Killebrew, 560

F.2d 729 (6th Cir. 1977); Salvador v. United States, 505 F.2d 1348,

1351-52(8th Cir. 1974); United States v. Prescott, 81 F.2d 1343 (9thCir.

fcontinued)

two do not.*® The great majority of those state courts

which have been called upon to construe the Fourth

Amendment in this area have also found warrants

required. Thus, ten states now impose a warrant

requirement by judicial construction‘! and only one

has reached the same result as the New York Court of

Appeals.*?

In short, when courts have examined the propriety of

(footnote continued from preceding page)

1978). It is also significant that no Congressional enactment specifically

authorizes warrantless entries to arrest. Compare, United States v.

Watson, 423 U.S. at 415-16. Congress has repealed a provision of the

District of Columbia Code which for a brief time authorized

warrantless entries in the District of Columbia, Compare, former D.C.

Code §23.591, P.L. 91-358, §210(a), with P.L. §93-481, §4(a); P.L. 93-

635, §16. See, In re R.A.J., 24 Cr. L. Rep. 2284 (D.C. Sup. Ct.

December 11, 1978) (holding warrant required for arrest of juvenile in

home).

40 United States v. Williams, 573 F.2d 348 (Sth Cir. 1978); United

States ex rel. Wright v. Woods, 432 F.2d 1143 (7th Cir. 1970).

4! State v. Cook, 115 Ariz. 188, 564 P.2d 877 (1977); People v. Ramey,

16 Cal.3d 263, 545 P.2d 1333, cert. denied, 429 U.S. 929 (1976); People

v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971); People v. Trull, —— ll.

App.3d —_, 380 N.E.2d 1169, 1173 (1978); Stuck v. State, 255 Ind. 350,

264 N.W.2d 611 (1970); Commonwealth v. Forde, 367 Mass. 798, 329

N.E.2d 717 (1975); Nilson v. State, 272 Md. 179, 321 A.2d 301 (1974);

Dent v. State, 33 Md. App. 547, 365 A.2d 57 (1976); Commonwealth v.

Williams, _— Pa. —. 24 Cr. L. Rep. 2241 (1978); State v. Max, 263

N.W.2d 685, 687 (S.D. 1978); Laasch v. State, 84 Wisc.2d 587, 267

N.W.2d 278 (1978).

42See, State v. Perez, 277 So.2d 778, 782-83 (Fla.), cert. denied, 414

U.S. 1064 (1973). People v. Eddington, 23 Mich. App. 210, 173 N.W.2d

686 (1970), aff'd, 387 Mich. 551, 198 N.W.2d 297 (1972) is often cited for

this proposition also, but subsequent cases from Michigan throw its

validity into some doubt. See, People v. Burrill, 391 Mich. 124, 214

N.W.2d 823 (1974); People v. Little, 78 Mich. App. 170, 259 N.W.2d

412 (1977).

warrantless arrest entries in light of the concerns of the

Fourth Amendment, rather than the concerns of

ancient law, they have concluded that they are subject

to the warrant requirement. They have found in the

Fourth Amendment the very principles which must

govern this case:

To be arrested in the home involves not only the

invasion attendant to all arrests but also an

invasion of the sanctity of the home. This is simply

too substantial an invasion to allow without a

warrant, at least in the absence of exigent cir-

cumstances, even when it is accomplished under

statutory authority and when probable cause is

clearly present.

United States v. Reed, 572 F.2d at 423. Because of the

substantial privacy invasion involved, and because,

unlike the common law, the Fourth Amendment values

the warrant as the chief safeguard of privacy, warrants

are required for entries of the home to arrest.**

Although we have demonstrated above that the common law of

arrest affords no support for the decision below, we note that the

common law is not, in general, determinative of Fourth Amendment

issues. In the most fundamental areas of Fourth Amendment

jurisprudence, indeed, the Court has rejected the approach of the

common law. In Warden v. Hayden, 387 U.S. 294, 300-10 (1967), for

example, the Court rejected the common law view of what property was

subject to seizure, and held, contrary to the early precedents, that “mere

evidence” could be seized. Similarly, in defining the scope of a “search”

under the Fourth Amendment, the Court in Karz v. United States, 389

U.S. 347, 352-53 (1967) repudiated the view of Olmstead v. United

States, 277 U.S. 438 (1928) that eavesdropping involved no search

because there was no common law trespass. See, Amsterdam,

Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 381-82

(1974). Other common law rules of arrest law such as the “knowledge-

suspicion” distinction or the misdemeanor warrant rule, appear never

to have been absorbed into the Fourth Amendment. See, United States

v. Watson, 423 U.S. 411, 455 n.21 (1976) (Marshall, J., dissenting);

Agnello v. United States, 269 U.S. 29, 33 (1925).

V. No Exigent Circumstances Existed to Excuse

the Failure of the Police to Obtain a Warrant

Prior to their Breaking Open the Door to

Payton’s Apartment.

If our argument is correct that a warrant is required

for entry to arrest within the home, then such a require-

ment can be dispensed with only upon a determination

that there were exigent circumstances excusing the

failure of the police to obtain one. Coolidge v. New

Hampshire, 403 U.S. at 454-455; Katz v. United

States, 389 U.S. at 357-58. Six of the seven judges

below were of the view that no exigency was present in

the Payton case. Only Judge Wachtler, who dissented

on other grounds (A. 82-85), felt that such circum-

stances existed because the crime involved was a

homicide and “for several days the police had been in

continuous pursuit of the killer when they arrived at the

defendant’s apartment .. .” (A. 82).44 This conclusion

44The prosecution, while arguing below that under the circumstances

of this case the officers’ entry into Payton’s apartment met the

constitutional standard of “reasonableness,” also insisted that the

record did not afford a basis for determining whether or not there

existed exigent circumstances. This assertion is based on a claim that

the prosecution was not permitted the opportunity to demonstrate what

happened between the time Detective Malfer first went to Payton’s

address on January 14 and the time he returned on the morning of

January 15. See, Appellee’s Motion to Defer Consideration, (filed with

this Court) pp. 21-28. However, the record created no problem for

resolution of the issue in the court below. The majority opinion states

definitively that there were no exigent circumstances (A. 69, 74) and the

opinions of both Judges Wachtler and Cooke, while differing, show a

full exploration of the question (A. 81-82, 92-93). Moreover, at the

suppression hearing, the prosecutor was fully aware that the warrant

requirement was in issue (A. 8) and that if there were exigent

circumstances, it was the prosecutor’s burden to establish them.

Mc Donald y. United States, 335 U.S. 451, 455-56 (1949). Not only did

he choose not to do so, he objected to defense counsel’s inquiry as to

whether Detective Malfer had acquired any additional information

during the interval between his visits to Payton’s apartment (A. 34).

is neither consistent with this Court’s elucidation of the

exigent circumstances doctrine nor supported by the

facts of this case.

In describing the circumstances under which the

warrant requirement of the Fourth Amendment may

‘be dispensed with, the Court has emphasized that there

must be “exceptional circumstances,” or a “grave

emergency,” and that the burden is upon “those who

seek exemption from the constitutional mandate [to

demonstrate] that the exigencies of the situation made

that course imperative.” McDonald v. United States,

335 U.S. 451, 454-456 (1949).

Thus, exigent circumstances have been found to

exist where there was danger of flight [Johnson v.

United States, 333 U.S. at 15], where there was danger

of imminent destruction of evidence [Schmerber v.

California, 384 U.S. 757, 770-71 (1966)], where the

search was incident to a lawful arrest [Chimel v.

California, 395 U.S. 752], or where the police were in

“hot pursuit” of a suspect. Warden v. Hayden, 387 U.S.

at 297-99; see, also, Vale v. Louisiana, 399 U.S. 30, 35

(1970). Nothing remotely resembling these exigencies is

present in this case.

That Payton was sought for a homicide did not, of

itself, create any exigency. In rejecting Arizona’s

purported “homicide-scene” exception to the warrant

requirement, the Court specifically declined “to hold

that the seriousness of the offense under investigation

itself creates exigent circumstances of the kind that

under the Fourth Amendment justify a warrantless

search.” Mincey v. Arizona, 57 L.Ed.2d at 301.

Moreover, despite the nature of the crime, the facts

demonstrate that the police themselves perceived no

need to act as though speed were essential. See, Warden

v. Hayden, supra, 387 U.S. at 299. Detective Malfer

knew Payton’s identity and address the day before the

break-in. He had been taken to Payton’s apartment

sometime after noon on January 14, 1970, By that time,

he knew precisely what crime Payton was accused of

and he was aware of all the facts which established

probable cause. Despite that knowledge, he made no

immediate attempt to arrest Payton nor did he arrange

to keep Payton’s apartment under surveillance. Since

he did not return to Payton’s home until the next

morning, Malfer had the remainder of the day and

evening of the 14th to obtain a warrant.

Having bypassed one opportunity to get a warrant,

Malfer did so a second time the following morning.

When he returned to Payton’s apartment with four

other police officers, they had to delay their entry

further until other officers from the Emergency

Services Division could arrive to assist in breaking

through Payton’s door. According to Malfer, all

avenues of escape were so well covered that he had not

the slightest concern that Payton would escape during

the time it would take Emergency Services to respond.

If, as Malfer maintained, the situation was sufficiently

well in hand that the additional delay was of no

particular moment, then there was no urgent need to

forego this further opportunity to obtain a warrant,

even if it would have required a slightly longer delay.

See, United States v. Jeffers, 342 U.S. 48, 52 (1951)

(“the officers admit they could have easily prevented

any such destruction or removal by merely guarding

the door”); United States v. Calhoun, 542 F.2d 1094,

1102 (9th Cir. 1976), cert. denied, 429 U.S. 1064 (1977)

(“The availability of an alternative further suggests that

exigent cicumstances did not exist. There were suffi-

cient officers in the area that, instead of entry, they

might have maintained surveillance while a warrant

was sought.”). Consequently, the amount of time

which the police allowed to pass between the time they

acquired probable cause and their entry into Payton’s

apartment demonstrates that it was not the exigencies

of the situation which precluded their obtaining a

warrant. See, G. M. Leasing Corp. v. United States, 429

U.S. at 358-59. Since the heart of the Fourth

Amendment is the command that absent exigent

circumstances a person’s home may be invaded only

after a determination by a neutral magistrate, the entry

into Payton’s apartment was unreasonable.*>

4SBecause the District Attorney has conceded that there was no

exigency in Riddick, we treat the subject only briefly and merely to

underscore the basis for that concession and to illustrate that obtaining

an arrest warrant would have been no hindrance whatsoever to the

police. Riddick had been living at the same address for two years, as his

parole officer undoubtedly knew. The crime for which he was arrested

had occurred years before. Under these circumstances there was no

danger of sudden escape or destruction of evidence. The actions of the

police confirm the lack of exigency, for even after ascertaining

Riddick’s address they waited weeks to make the arrest. In cases like

Riddick’s, the requirement that police obtain a warrant for an entry

places absolutely no burden upon them. They may seek it as soon as

they have probable cause to arrest or only at the last minute. Since the

police have ample time to obtain the warrant, the delay involved in

getting it does not hinder them, and their failure to do so is inexcusable.

VI. The Extreme Force Employed to Gain Entry

to Payton’s Apartment, in the Absence of

Exigent Circumstances, Constitutes an Addi-

tional Ground for Holding the Conduct of the

Police Unreasonable Under the Fourth

Amendment.

We have argued above that a warrant to arrest within

the home is required by the Fourth Amendment for any

non-consensual entry when there are no exigent

circumstances. In the Payton case, however, the police

entry was not only non-consensual, it was also forcible.

The extreme force employed by the police to gain entry to

his apartment constitutes a further basis for holding that

Payton’s Fourth Amendment rights were violated.

The primary argument of the Court of Appeals, in

rejecting a construction of the Fourth Amendment

which would require warrants in cases such as

appellant Payton’s, was that the intrusion on the home

in such cases is less than the intrusion of a search. With

regard to Payton’s case, and to all cases where force is

used to effect entry, the court’s conclusion is manifestly

false. The forcible breaking of a door is a far greater

intrusion than the search because of the very violence it

entails.

Because of the magnitude of this instrusion, the

element of force has been specifically adverted to asa

factor which might merit special treatment. United

States v. Santana, 427 U.S. 38, 43-44 (1976) (White, J.

concurring); Coolidge v. New Hampshire, 403 U.S. at

511 n.1 (White, J., concurring and dissenting, joined by

Burger, C.J.); Jones v. United States, 357 U.S. at 499-

500. There is sound basis for such concern. As

Professor Amsterdam has observed, “{i]ndisputably,

forcible entries by officers into a person’s home or

office are the aboriginal subject of the Fourth

Amendment and the prototype of the ‘searches’ and

‘seizures’ that it covers.” Amsterdam, Perspectives on

the Fourth Amendment, supra, 58 Minn. L. Rev. at

363.

At common law, there was considerable discussion

about the “extremity” of the breaking down of doors,

and the view was stated that “the breaking an outer

door is, in general, so violent, obnoxious, and

dangerous a proceeding, that it should be adopted only

in extreme cases, where an immediate arrest is

requisite.” R. Burn, JUSTICE OF THE PEACE 303 (30th

ed. 1869), quoted in Accarino v. United States, 179

F.2d at 461; see, e.g., 1 J. Chitty, CRIMINAL LAW 52

(3rd Am. ed. 1836) (“extreme violence”); | W. Russell,

CRIMES AND MISDEMEANORS 629 (Sth Am. ed. 1845)

(“this extremity”); 1 E. East, PLEAS OF THE CROWN 322

(1803) (“this extremity”).

As we have earlier pointed out (supra, n.26) the term

“breaking” at common law was broad enough to

encompass a wide variety of non-consensual entries.

That in no way detracts, however, from the obvious

concern with those breakings which were of the more

violent nature and indeed left the suspect’s family open

to the elements. See, Lee v. Gansel, 1 Cowp. 1, 6, 98

Eng. Rep. 935, 938 (1774) where Lord Mansfield,

discussing breakings to execute a warrant, wrote:

The ground of this; that otherwise the conse-

quences would be fatal for it would leave the

family within, naked and exposed to thieves and

robbers. It is much better therefore, says the law,

that you should wait for another opportunity, than

do an act of violence, which may probably be

attended with such dangerous consequences.

The element of force has also been a factor which a

number of states** have thought sufficiently important

to justify imposition of the warrant requirement, as

have a number of courts. See, e.g., Accarino v. United

States, 179 F.2d 456; Commonwealth v. Forde, 367

Mass. at 807, 329 N.E.2d at 723 (“Additional

considerations testing the reasonableness of police

conduct are whether the entry is peaceable and whether

the entry is in the nighttime.”).47 And as the Chief

Justice, then Judge Burger has written, “ ‘a forcible

entry into a house is justified only when an immediate

major crisis in the performance of duty affords neither

time nor opportunity to apply to a magistrate.’”

Chappell v. United States, 342 F.2d 935, 938, n.5(D.C.

Cir. 1965), quoting from District of Columbia v. Little,

*6Conn. Gen. Stat. Ann. §30-106 (1975) (only into disorderly house);

Ga. Code Ann. §27-205 (1972); Ky. Rev. Stat. §70.078 (1971); Okla.

Stat. Ann. tit. 22, §194 (1969); S.C. Code Ann. §53-198 (1977); Wyo.

Stat. Ann. §7-165 (1967).

“The American Law Institute has proposed that a warrant be

required for forcible entries but only for “nighttime” entries, i.e. those

undertaken between the hours of 10 p.m. and 7 a.m. ALI, A MopeL

CODE OF PRE-ARRAIGNMENT PROCEDURE, §120.6 (1975). At least one

commentator has criticized the arbitrariness of such a provision and

further pointed out that “the intensity of the intrusion is a function of

more than the lateness of the hour of entry.” Haddad, Arrest, Search

and Seizure— Six Unexamined Issue in Illinois Law, 26 DePaul L. Rev.

492, 526-27 (1977), This case demonstrates the wisdom of that criticism.

Forcible entry of Payton’s apartment was attempted initially between

7:15 and 7:30 a.m., some fifteen to thirty minutes too late to qualify,

under the ALI proposal, as a “nighttime” entry. But the force employed

was far more critical to the degree of the intrusion than the passing of a

few minutes and must be accorded far greater weight.

178 F.2d 13, 17 (D.C. Cir. 1949).

The force employed in this case, the breaking open of

an apartment door with crowbars, was of course

extremely severe. Had anyone been inside and

awakened from a deep sleep, the noise of metal on

metal, the locks being strained and broken, and the

final burst of the officers entering would have been a

terrifying experience.*® The sudden entry of officers

might then incite forcible resistance from an otherwise

compliant occupant. The actual property destruction

involved and the potential for further violence dictate

that such actions be subject to procedural restraints.

Regrettably, there arise circumstances in which the

police must use force to enter a home in the interest of

public safety. However, when there is no exigency, the

decision to employ violent methods should not be left

to their unfettered discretion. It follows that when the

sanctity of the home is to be abruptly intruded upon

with the kind of force applied in this case, such

intrusion should be predicated upon the authorization

of a neutral magistrate.

In such cases, for the reasons we have discussed

above, that requirement places no burden upon the

police; indeed some police departments have a stated

policy of obtaining a warrant where an arrest will

require a forcible entry. W. LaFave, ArREsT: THE

DECISION TO TAKE A SUSPECT INTO CusToDy 45 (1965).

Their reason for such a policy is that they themselves

48 At an early hour of the morning, the failure to answer an apartment

door cannot be conclusive proof that no one is within. Indeed, in this

case, it is less than clear that the police gave notice of their authority and

purpose, as Malfer testified only that he had knocked on the door (A.

13-14).

believe it confers positive benefits: “because police

entry into private homes is undoubtedly one of the

most sensitive of all law enforcement practices, the

warrant serves the very important function of

insulating the police from criticism by giving the

appearance that they have selected ‘that legal course

which conforms most to democratic values.’ ” /d. at 45-

46. Because no exigent circumstances justified a

warrantless entry into Payton’s apartment, the violent

nature of the entry constitutes an additional basis for

the conclusion that Payton’s Fourth Amendment

rights were violated.

CONCLUSION

For the above reasons, the judgment of the Court of

Appeals upholding New York’s statutory provisions

authorizing warrantless, non-consensual and forcible

entries into private dwellings should be reversed.

Respectfully submitted,

WILLIAM E. HELLERSTEIN

DAVID A. LEWIS

Counsel for Appellants

January, 1979

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