Brief for Appellee — Payton v. New York
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IN THE
Supreme Court of the United States
October Term, 1978
No. 78-5420
THEODORE PAYTON, Appellant,
v.
NEW YORK, Appellee.
No. 78-5421
OBLE RIDDICK, {ppellant
Vv.
NEW YORK, Appellee.
Appeals from the New York Court of Appeals
BRIEF FOR APPELLEE
—-— ———
— —
Ropert M. MorGentTHAvU
District Attorney
New York County
155 Leonard Street
New York, New York 10013
(212) 553-9000
Joun I. SANTUCCI
District Attorney
ueens County
125-01 Queens Boulevard
Kew Gardens, New York 11415
(212) 520-2092
Attorneys for Appellee
Peter L. ZIMROTH
Chief Assistant District Attorney,
New York County
Henry |. STEINGLASS
BRIAN ROSNER
VIVIAN BERGER
Assistant District Attorneys,
New York County
Of Counsel
TABLE OF CONTENTS
Questions Presented
Statement of the Case
Payton v. New York, No. 78-5420
The Pre-Trial Hearing and the Decision on
the Motion to Suppress
The Investigation that Led the Officers to
Payton’s Apartment on January 15,
1970
January 12, 1970
January 13, 1970
January 14, 1970
January 15, 1970
The Trial, Cenviction, and Affirmance by the
Appellate Division
Riddick v. New York, No. 78-5421
The Pre-Trial Hearing and Decision on the
Motion to Suppress
The Guilty Plea, Sentence and Affirmance by
the Appellate Division
Opinion of the New York Court of Appeals
Summary of Argument
Point I—When there is probable cause to believe that
a person has committed murder (Payton) or
armed robbery (iddick), the Fourth Amendment
does not prohibit a police officer from arresting
that person in his dwelling during the daytime
without an arrest warrant |.
26
If
A. The Fourth Amendment was intended to re-
affirm the common law principles governing
searches and arrests which, though protecting
the sanctity of the home, did not require an
arrest warrant before a peace officer could
make an arrest for a felony in a dwelling
1. The Common Law: Peaceable Entries .
2. The Common Law: Forcible Entries
3. The Events Which Led to the Adoption of
the Fourth Amendment
4. Acceptance of Common Law Principles in
this Country
. The long-standing and. widespread acceptance
of the constable’s authority, without a war-
rant, to arrest a felon in his dwelling is based
on sound social policy ..............
1. Anarrest warrant requirement will severe-
ly interfere with the most basic function
of our police—arresting the felon and
bringing him before the court to answer
CIR ois Ge ccsteice ck
2. Because searching a dwelling involves very
different interests than arresting a felon
there, a warrant requirement—necessary
in the context of searches—is neither nec-
essary nor advisable in the context of
SIS oor cl cei icp eteack eoe
. Even if arrest warrants are generally re-
quired, Payton’s arrest without a warrant was
proper because it was the result of a continu-
ous and intensive pursuit of an armed killer |.
PAGE
26
27
28
o7
42
50
67
76
Ift
PAGE
Point IJ—Payton is not entitled to the benefit of the
exclusionary rule because, when the police en-
tered his apartment in January 1970, they did so
under the express authority of a state statute, at
a time when neither they nor any other law en-
forcement official could have had any serious
doubts about the legality of following the statute 81
Conclusion Web: ey rEg Cae Le Sh 92
TABLE OF AUTHORITIES
Cases:
Acearino v. United States, 85 U.S. App. D.C. 394, 179
F.2d 456 (D.C. Cir. 1949) re 48, 85, 86
Aguilar v. Texas, 378 U.S. 108 (1964) 75
Alderman v. United States, 394 U.S. 165 (1969) 83
Almeida-Sanchez v. United States, 418 U.S. 266 (19738) = 87
Andresen v. Maryland, 427 U.S. 4638 (1976)... ee:
Banks v. State, 265 Ind. 71, 351 N.E.2d 4, cert. denied,
429 U.S. 1077 (1977) 53n, 66n, 78
Barnard v. Bartlett, 64 Mass. 501, 57 Am. Dee. 123
(1852) , see wv 43n
Barnes ¥«State, Ind. , 378 N.E.2d 839 (1978) 53n
Beckwitit vj. Philby, 108 Eng. Rep. 585 (1827) . gon
Bivens v. Six Unknown Federal Nareoties Agents, 403
U.S. 388 (1971) 83, 90
Brooks vy. United States, 867 A.2d 1297 (D.C. 1976)... 61,
65n, 66n
Broughton v. State, 37 N.Y.2d 451, 335 N.E.2d 310, 373
N.Y.S.2d 87, cert. denied, 423 U.S. 929 (1975) .. 73,90
Bumper v. North Carolina, 391 U.S. 543 (1968) 69
Burdett v. Abbott, 104 Eng. Rep. 501 (1811) 29n
Burns v. Erben, 40 N.Y. 453 (1869) . 42n
Iv
PAGE
Camara v. Municipal Court, 387 U.S. 523 (1967) .... 70
Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) 00... 87
Chime] v. California, 395 U.S. 752 (1969) ica
Commonwealth v. Boswell, —— Mass. , a2 N.E.
2d 237 (1978) 53n, 64, 68
Commonwealth v. Irwin, 83 Masa: 587 (1861) See
Commonwealth v. LeBlane, Mass. , 367 N.E.
2d 846 (1977) ........... see Don, 64
Commonwealth v. Moran, Mass. , 04) N.B.2d
380 (1976) | d3n, 66n, 78n
Commonwealth v. Phe Ips, 209 Mass. 396, 95 N.K. 868
(1911) 47
Commonwealth v. Reynolds, 120 Mass. 190, 21 Am.
Rep. 510 (1876) eee 43n
Commonwealth v. Walker, - Mass. , 300 N.E.
2d 678, cert. denied, 429 U.S. 943 (1976) 53n, 66n
Coolidge v. New Hampshire, 403 U.S. 443 (1971) 23, 48,
64n, 70, 86n
Coyles v. Hurtin, 10 Johns. Rep. 84 (N.Y. Sup. Ct.
1813) . 42n, 431
Crane v. State, Ind. ——, 380 N. B. 2d 89 (1978) don
Crews v. United States, 389 A.2d 277 (D.C. 1978) (en
bane),
1979) te , 55
Dandridge v. Williams, 397 U.S. 471 (1970) 82n
Davis v. Russell, 5 Bing. 354, 130 Eng. Rep. 1098
(1829) et NOS OU saa ae ae 35n
Dent v. State, 33 Md. App. 547, 365 ‘- 2d 57 (1976) 64n
Doering v. State, 49 Ind. 56, 19 Am. Rep. 669 (1874) 43n
Dorman v. United States, 485 F.2d 385 (D.C. Cir.
1970) (en banc) | 66
Eanes v. State, 6 Humphreys 53, 44 Am. Dee. 289
(Tenn. 1845) 45n
Elkins v. United States, 364 U.S. 206 (1960) | 83
Entick v. Carrington, 19 Howell’s State Trials 1029
(27GB) 3.52: ss ceskeescsupadestay ina vedo vanadonesn dia aa
PAGE
Finch v. State, 264 Ind. 48, 338 N.E. 2d 629
6) a al 53n, 66n
Franks v. Delaware, - oe a S. , 07 L.Ed.2d 667
NE Se OAL , 75
Gerstein v. Pugh, 420 U.S. 103 (1975) 27, 68, 72
Givhan v. Western Line Consolidated School District,
— US. , 098 L.Ed.2d 619 (1979) ...... 81
Gray, Application of, 155 Mont. 510, 473 P.2d 532
eller as ccphcossedecsecesedes. : Soe
Hawley v. Butler, 54 Barb. 490 (N.Y. Sup. Ct. 1868) 43n
Hoffa v. United States, 385 U.S. 293 (1966) 55
Holley v. Mix, 3 Wend. 350 (N.Y. Sup. Ct. 1829) _. 43n
Huckle v. Money, 95 Eng. Rep. 768 (1765) _..... _ 40
James v. Superior Court of Tulare County, —— Cal.
App. - , 151 Cal. Rptr. 270 (1978) 58, 66n
Johnny V. v. People, 85 Cal. App. 3d 120, 149 Cal.
Rptr. 180 (1978) 62, 66n
Johnson v. United States, 333 U. S. 10 (1948) 48, 49
Jones v. United States, 357 U.S. 493 (1958) 23. 48
Kelsy v. Wright, 1 Root’s Conn. Rpts. 83 (1783) 44
Ker v. California, 374 U.S. 23 (1963) , 49,71
Killian v. United States, 368 U.S. 231 (1961) 6
Laasch v. State, 84 Wis. 2d 587, 267 N.W. 2d 278
(1978) . . 55
Lankford v. Gelston, 364 P. 2d 197 (4th Cir. 1966). 90
Leach v. Three of the King’s Messengers, 19 Howell’s
State Trials 1001, 97 Eng. Rep. 1075 (1765) 41,42
Lemon v. Kurtzman, 411 U.S. 192 (1973) ......... 87
Ludlow v. State, 262 Ind. 266, 314 N.E. 2d 750 (1974) o3n
VI
PAGE
Marcus v. Search Warrants, 367 U.S. 717 (1961) 38, 41
McDonald v. United States, 335 U.S. 451 (1948) 77
McLennon v. Richardson, 81 Mass. 74, 77 Am. Dee. 353
pe eee ant. ATES 45
Michigan v. Tucker, 417 U. S. 433 (1974) . the al Sa
Miller v. United States, 357 U.S. 301 (1958) . ... 40, 71
Mincey v. Arizona, U.S. ——, 57 L. Ed. 2d 290
(1978) . : 69, 70
Morales v. New York, 396 U.S. 102 ( 1969) . 80
Morrison v. Uniied States, 104 U.S. App. D.C. 352,
262 F.2d 449 (D.C. Cir. 1958) ............. 86n
New York Trust Co. v. Eisner, 256 U.S. 345 (1921) 50
North v. People, 28 N.E. 2d 966 (IIL. 1891) | _ 44n
Olmstead v. United States, 277 U.S. 438 (1928) __. 84
Pallett v. Thompkins, 10 Wash. 2d 697, 118 P. 2d 190
b PAMSR LAA TS AOR er LO a DRSE AML NTN bor Se eel cast 73
Pawloski v. State, —— Ind. ——, 380 N.E.2d 1230
SOUL icsmnte en Gicueloent ee d3n, 58, 65n, 66n, 78n
People v. Burrill, 391 Mich. 124, 214 N.W.2d
gd 6, | UR aR eraReee pee SO MESD cca cote bikeneyes (RP ee cinic 58, 64n
People v. Ellers, 82 Cal. App. 3d 809, 147 Cal. Rptr.
433 (1978), hearing granted .............. sSavhungdy Ay
People v. Hoinville, , 0093 P.2d 777
gS "| Oe porn anak pL Sheela ia ea sstxan e
People v. Loria, 10 N.Y.2d 368, 179 N.E. 2d 478, 223
ea Rs ee Oe OO ire ed ildiladslere | 85
People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971) 64n
People v. Peterson, 85 Cal. App. 3d 163, 149 Cal.
Rptr. 198 (1978) .................. 66n
People v. <a — Colo. App. “aH, BIT P. 2d
314 (1978) . ah ery AT eet Ay TAL UCase acu agrtN 9 64n
People v. Saars, -
| EPR PIRES Uv aetated Mean Br hte PraeP Meta Whe ered oh 78n
Vit
PAGE
People v. Superior Court, 68 Cal. App. 3d 780, 137 Cal.
Rptr. 586 (1977) 66n
People v. Wolgemuth, 69 Ill. 2d 154, 370 N.E. 2d 1067
(1977) . PSY Stee PR armen ) 64n
Randall’s Case, 5 City Hall Record 141 (N.Y. Ct. of
Oyer and Terminer 1820) 46n
Reginald, B., In re, 71 Cal. App.3d 393, 139 Cal. Rptr.
465 (1977) 66n
Reuck v. MeGregor, 32 N.J.L. 70 (N J. Sup. Ct. 1866) 43n
Roaden v. Kentucky, 413 U.S. 496 (1973) 77
Rohan v. Sawin, 59 Mass. 281 (1851) | 44, 45
Rush v. Buckley, 100 Me. 322, 61 A. 774 (1905) 73
Sabbath v. United States, 391 U.S. 585 (1968) 30n, 49, 71
Salvador v. United States, 505 F.2d 1348 (8th Cir.
1974) 64n
Samuel v. Payne, 1 Doug. 359, 99 Eng. Rep. 230 (1780) 3on
Scott K., In re, 75 Cal. App. 3d 162, 142 Cal. Rptr. 61
(1977), hearing granted (1978) 66n
Semaine’s Case, Co. Rep. 91a, 77 Eng. Rep. 194
(1603) 7 29, 30
Shanley v. Wells, 71 Ill. 78 (1873) 42n, 45
Smith v. County of Nassau, 34 N.Y.2d 18, 311 N.K.2d
489, 355 N.Y.S.2d 349 (1974) 73
Smith v. United States, 1083 U.S. App. D.C. 48, 254
F.2d 751, cert. denied, 357 U.S. 937 (1958) 86n
Spinelli v. United States, 393 U.S. 410 (1969) tae
State v. Ferguson, 119 Ariz. 55, 579 P.2d 559 (1978)
(en banc) | . 78n
State v. Girard, 276 Or. 511, 555 P.2d 445 (1976) (en
bane) 64n
State v. Lashley, 306 Minn. 224, 236 N.W.2d 604
(1975), cert. denied, 429 U.S. 1077 (1977) 64n
State v. Linkletter, 345 So.2d 452 (La.), cert. demed,
434 U.S. 1016 (1978) 63n
VIF
PAGE
State v. Luellen, 17 Wash. App. 91, 562 P.2d 253
(1977) 63n
State v. Max, 263 N.W.2d 685 (S.D. 1978) 64n
State v. MeMillin, 206 Kan. 3, 476. P.2d 612 (1970) (6)
State v. Perez, 277 So.2d 778 (Fla.), cert. denied, 414
U.S. 1064 (1973) 63n
State v. Smith, 1 N.H. 346 (1818) 45
Stine v. Shuttle, 134 Ind. App. 67, 186 N.E.2d 168
(1962) (en bane) 72,73
Stuck v. State, 255 Ind. 350, 264 N.H.2d 611 (1970) 65n
Taylor v. Strong, 3 Wend. 384 (N.Y. Sup. Ct. 1829). 42n, 48n
United States v. American Railway Express Co., 260
U.S. 425 (1924) . 82n
United States v. Brown, 540 P. 2d 1048 (10th Cir.),
cert. denied, 429 U.S. 1100 (1977) 77n
United States v. pre 414 U.S. 338 (1974) 83
United States v. Campbell, 581 F.2d 22 (2d Cir.
1978) 57, 61, 65n, 66n, 78
United States v. Ceecolini, 435 U.S. 268 (1978) 83
United States v. Janis, 428 U.S. 433 (1976) 83
United States v. Jarvis, 560 F.2d 494 (2d Cir. 1977),
cert. denied, 435 U.S. 934 (1978) o7n
United States v. Johnson, —— F.2d —— (9th Cir.,
December 19, 1978) 64
United States v. Kulsear, 586 F.2d 1288 (8th Cir.
1978) 65n
United States v. New York Telephone Co., 434 U.S.
159 (1977) . 82n
United States v. Peltier, 429 U. S, 531 (1975) 83, 87, 88
United States v. Prescott, 581 F.2d 1348 (9th Cir.
1978) |. See ....64, 79
United States v. Robinson, 414 U.S. 218 (1973) 67
United States v. Santana, 427 U.S. 38 (1976) 23, 24, 50,
51, 55, 68
IX
PAGE
United States v. Scott, 578 F. 2d 1186 (6th Cir. 1978) 65n
United States v. Shye, 492 F.2d 886 (6th Cir. 1974) 61,
64n, 65n,78n
United States v. Shye, 473 F.2d 1061 (6th Cir. 1973 ) 64n
United States v. Watson, 423 U.S. 411 (1976) 18, 23, 24,
28, 36, 42n, 46n, 47,
50, 51, 55, 66, 67, 68
United States v. Williams, 573 F.2d 348 (5th Cir.
1978) at Id [heey 63n
Vale v. Louisiana, 399 U.S. 30 (1970) 72
Vance v. North Carolina, 482 F.2d 984 (4th Cir.
1970) 64n, 65n, 71, 78n
Velovic v. City of New York, N.Y.L.J., Feb. 9, 1979,
p. 12, col. 1 (N.Y. Civ. Ct.) £5 73
Wade v. Chafee, 8 R.I. 224, 5 Am. Rep. 572 (1865) 45
Wakely v. Hart, 6 Binn. 316 (Pa. 1814) 44n
West v. Cabell, 153 U.S. 78 (1894) 57n
Whitely v. Warden, 401 U.S. 560 (1971) 56
Wilkes v. Wood, 98 Eng. Rep. 489 (1763) 40, 41
Year Book Case, 13 Edw. IV, 9a . 29, 31, 32n
Zurcher v. Stanford Daily, 486 U.S. 547 (1978) 69
Constitution:
United States Constitution:
Fourth Amendment: The right of the people to
be secure in their persons, houses, papers, and
effects, against unreasonable searches and sei-
zures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly de-
scribing the place to be searched, and the per-
sons or things to be seized oe 41
PAGE
Statutes:
Act of May 2, 1792, ¢. 28, §9, 1 Stat..265 42n
Colo. Rev. Stat. former §16-3-102(1)(¢) (1973) 64n
L. 1857, ¢. 569, See. 8 42n
L. 1958, e. 707, See. 1 46n
N.Y. Crim. Proce. Law:
§120.10 74
$120.80 15, 71
5140.10 14, 17, 70
$140.15 14, 70, 71
§140.20 72, 74
§690.45 70
$690.50 70
$710.60 74
§710.70 17
N.Y. Code Crim. Proce.:
§177 3, 4, 5, 46n
S178 3, 4, 5, 46n, 71
§187 33n
Other Authorities:
Aut, Cope or Craiminat Procepure (1930) 46n, 48
Aut, Mopet Cope or Pre-ArrgaiGNMent Procepure
(1975) 19, 47n, 48, 68, 70, 85, 90
Aut, Restatement (Seconp) or Torts (1965) 72
Amsterdam, Perspectives on the Fourth Amendment,
58 Minn. L. Rev. 349 (1974) S4
Amsterdam, Search, Seizure, and Section 2255: A
Comment, 112 U. Pa. L. Rev. 378 (1964) 82
O. Barsour, A Treatise oN THE CriminaL Law anp
Criminat Courts or THE State or New York (3d
ed. 1883) 45n
J. Bisnop, CreiminaL Procepure (3d ed. 1880) 45n
BLAcKsTONE’s ComMENTARIES ( Andrew’s ed.) 31, 32
Blakey, The Rule of Announcement and Unlawful
Entry, 112 U. Pa. L. Rev. 499 (1964) 47n
XI
PAGE
Burn, Justice oF THE PEACE
(1755 ed.) 34
(1869 ed.) 34n, 35n
J. Currry, Crimixat Law (3rd Amer., from 2d Lon-
don, ed. 1836) 33n, 34, 35n
E. Coxe, Fovrtn Institute 36, 37
J. Cotsy, A Practica, TREATISE oN THE CrimrxaL Law
AND Practice oF THE State or New York (1868) 46n
Comment, The Legal Efficacy of Probable Cause Com-
plaints .. Light of People v. Ramey, 13 Calif.
Western L. Rev. 456 (1977) eee {
M. Daurox, Country Justice (1742 ed.) 28, 30, 31n, 46n
East, PLeas or THE Crown (1806 Phila. ed.) 33
Extiot’s DeBaTEes ON THE Feperat Constitution (1836
ed.) eee
F.B.1. Uxtrorm Crime Reports (1977) . 82
M. Foster, Crown Law (3d ed. 1792) 02) Oo
M. Hare, Pleas or tHe Crown (first American ed.
1847) 27, 28, 31, 32, 34n, 36
Hawkrys, PLeas or THE Crown (6th ed. 1788) ..... 33n, 36, 37
I’. Hearp, A Treatise ApapTep To THE LAW AND Prac-
TICE OF THE SupeRiIOR Courts * * * rs CrimInaL
Cases (1879) 46n
‘*Historican Nore,’’ N.Y. Code of Crim. Proc. (Me-
Kinney’s ed. 1958) . 46n
HotpswortnH, A History or Enciisn Law (1922) 29n
INTERNATIONAL AssocIATION or CuieFs or Poxice, Sur-
VEY oF Po.tce Misconpvucr Litigation 1967-71
(1974) 73n
LaFave, ‘Case - by - Case Adjudication’’ Versus
**Standardized Procedures’’: The Robinson Di-
lemma, 1974 Sup. Ct. Rev. 127 67
LaFave, Warrantless Searches and the Supreme
Court: Further Ventures Into the ‘‘Quagmire,’’
8 Crim. L. Bull. 9 (1972) 75
PAGE
Lassox, Tue Hisrory axp DEVELOPMENT OF THE
Fovrru AMENDMENT (1937) 38, 40
Lecat Parers or Joux Apams (Wroth and Zobel ed.
1965) 39n
New York Crry Pouce Department Crime (‘oMPARI-
-= ".)
son Reporr (1977) 52
New York State Poutce Manvan (3d ed. 1971) 53, 61, 72
Oaks, Studying the Erclusionary Rule m Search and
Seizure. 37 U. Chi. L. Rev. 665 (1970) 83 °
Paulsen, The Exclusionary Rule and Misconduct by
the Police, 52 J. Crim. L., C. & P.S. 255 (1961) s+
Perkins, The Law of Arrest, 25 Iowa L. Rev. 201
(1940) 48n
Porrer. Hisronicat. Isrnopvertos to Exciusn Law
(London: Sweet and Maxwell 1952) 29n
Presipent’s Commission on Law EsNrorceEMENT AND
ApMINISTRATION OF Justice, Task Force Report:
Screxce axnp Tecuxo.iocy (1967) 52
W. Prosser, Law or Torts (4th ed. 1971) 72
Respondent's Brief in Michigan v. De Fillippo (U.S.
No. 77-1680, argued Feb. Term 1979) 85n
Russet ox Crimes (1819) 33, 46n
St. Louis Globe-Democrat, Weekend ed., Sept. 30-Oct.
1, 1978, p. 17A, col. 1 73
STrerpHen’s New Commentaries (2d ed. 1848) Son
Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev.
541 (1924) 47n, 48n
IN THE
Supreme Court of the United States
October Term, 1978
No. 78-5420
TueEopore Payton,
Appellant,
v.
New York,
Appellee.
No. 78-5421
Ose Rivpick,
Appellant,
v.
New York,
Appellee.
Appeals from the New York Court of Appeals
BRIEF FOR APPELLEE
Questions Presented
1. Both cases present the following question: when
there is probable cause to believe that a person has commit-
ted a violent felony such as murder (Payton) or armed rob-
bery (Riddick), does the Fourth Amendment prohibit a
2
police officer from arresting that person in his dwelling
during the daytime without an arrest warrant?
2. In Payton, there is an additional question: is the
appellant entitled to the benefits of the exclusionary rule
when (1) police officers found the evidence in plain view
after they entered appellant’s apartment to arrest him
under the express authority of a state statute, and (2) they
did so at a time (January, 1970), when neither they nor any
other law enforcement official could have had any serious
doubt about the legality of following the statute?
Statement of the Case
Payton v. New York, No. 78-5420
On Monday morning, January 12, 1970, Theodore Pay-
ton, armed with a .30 caliber rifle and wearing a ski mask,
walked into a gas station in Manhattan. He demanded the
weekend receipts from the manager who was working on
them at his desk in the office. The manager complied but
then resisted Payton’s further demand that he open the
safe in the adjoining repair shop. Payton shot the manager
during the struggle that followed and escaped with approx-
imately $1,000. The manager died.
Intensive investigation led police officers, three days
later (January 15, 1970), to Payton’s apartment at about
7:30 in the morning. When the officers arrived, a light was
shining from under the door, and a radio could be heard
from inside. Believing Payton to be inside, they knocked
and called out, but there was no answer. The officers saw
that they could not open the metal door, so they called for
2
v
help which came about a half hour later. Then, with crow-
bars, they forced the door open and entered Payton’s apart-
ment to arrest him. They entered the apartment under the
explicit authority of a state statute that permitted the po-
lice, without a warrant, to make such entries in order to ar-
rest felons.” For almost one hundred years this statute had
governed procedures for making arrests; its constitutional-
ity had never been seriously questioned,
The officers looked through the apartment for Payton.
He was gone. However, in plain view on a stereo set in the
living room the officers saw a .30 caliber shell casing which
they seized. They also found three photographs of Payton
wearing a ski mask, a bill of sale for a .30-30 Winchester
rifle, a shotgun, and a bandolier with 14 bullets.
* Cope Crim. Proc. (McKinney 1958 and Supp. 1970) :
Cuapter [1V.—Arrest BY AN Orricer WitHout A WARRANT
* * *
$177. In what cases allowed
A peace officer may, without a warrant, arrest a person,
* +
2. When the person arrested has committed a felony, al-
though not in his presence;
3. When a felony has in fact heen committed, and he has
reasonable cause for Lelieving the person to be arrested to have
conmimitted it;
4. When he was reasonable cause for believing that a felony
has been committed, 2’ that the person arrested has committed
it, though it should afterwerd appear that no felony has been
committed, or, if committed, tat the person arrested did not
commit it;
ae * %
$178. May break open a door or window, 'f admittance refused
To make an arrest, as provided in the iast section, the officer
may break open an outer or inner door or window of a building,
if, after notice of his office and purpose, he be refused admittance
(footnote omitted ).
The Pre-Trial Hearing and the Decision on
the Motion to Suppress
Payton was indicted on March 30, 1970 for felony-
murder and for intentionally murdering the gas station
manager. After a four-year delay, attributable in large
part to Payton’s commitment as incompetent to stand trial
(A.1)* and to his requests for adjournments (T.100),**
a pre-trial hearing was held on Payton’s motion to suppress
the evidence seized from his apartment. Before the hear-
ing, the prosecutor announced that he intended to introduce
only the .30 caliber shell casing. He conceded that the other
items were seized illegally because they were not found in
plain view (A.3-7).
Because of the prosecutor’s concession, the scope of the
hearing was narrow. It did not focus on the investigation
that led the officers to Payton’s apartment on the morning
of January 15. Instead, it focused on whether their pur-
pose in entering the apartment was in fact to arrest him and
whether the shell casing was in fact seen in plain view.
The judge’s rulings were similarly limited. The judge did
not discuss the constitutionality of the Code of Criminal
Procedure Sections 177 and 178. Although the opinion
did mention that on January 14 the police learned Payton’s
address and that Payton was the murderer, it did not
discuss when on January 14 they first had probable cause
to believe he was the killer; when on January 14 they
first had probable cause to believe they knew where he
lived; when they first had probable cause to believe he was
* References preceded by the letter “A.” are to the Appendix.
** References preceded by the letter ““T,” are to pages of the record
not in the Appendix.
Bee
4)
at home; when they first decided to arrest him; whether, at
that time, they made a decision to arrest him in his apart-
ment; and if not, when they made that decision; whether
the officers had time to obtain an arrest warrant; or
whether there were any circumstances that might excuse
their failure to do so.
The judge simply found that there was probable cause
to arrest Payton; that the officers entered his apartment
for that purpose; that pursuant to the Code of Criminal
Procedure Sections 177 and 178 they did not need an
arrest warrant to make such an entry; and that once law-
fully in the apartment, they could seize the shell casing
which they had seen in plain view (A.39-41). Although the
issue was not raised by defense counsel, the judge also ruled
that the exigencies of the situation excused the officers from
the statutory requirement that they announce that their
purpose was to arrest the defendant. He based this ruling
on his findings that (1) ‘‘a grave offense had been commit-
ted;’’ (2) ‘‘the suspect was reasonably believed to be armed
and could be a danger to the community;’’ (3) there was a
‘‘elear showing of probable cause;’’ and (4) there was
‘*strong reason’’ to believe that Payton was in the apart-
ment and ‘‘would escape if not swiftly apprehended’’
(A.41).
Because the hearing and the judge’s findings were so
limited, the proceedings on the motion to suppress do not
give this Court a full picture of the investigation that led
the officers to Payton’s apartment on January 15. Accord-
ingly, both Payton and we refer to the testimony at the trial,
which added some detail to the broad outlines revealed at
6
the suppression hearing.* In addition, in a few places we
refer to police documents which were marked for iden-
tification at the hearing or the trial, given to defense coun-
sel, and used by them in their cross-examination of the
state’s witnesses. We do so in order to indicate that even
more information about the investigation could be devel-
oped and to suggest why, depending on what legal principles
are ultimately held to govern this case, a remand might be
necessary. See Killian v. United States, 368 U.S. 231
(1961). See pp. 80-81, infra.
The Investigation that Led the Officers to
Payton’s Apartment on January 15, 1970
January 12, 1970
The murder occurred at about 8:40 a.m. on Monday,
January 12, 1970. The police were called, and a patrol
car arrived almost immediately (T.261-63). Detective
Malfer, who supervised the investigation, arrived at the gas
station at about 9 a.m. He searched the scene, found two
.30 caliber shell casings, called for police ballistics experts,
fingerprint experts and photographers, spoke briefly with
the people who had witnessed the murder, and had them
transported to the 23rd Precinct which was nearby. At the
23rd Precinct, Detective Malfer took statements from the
eight people who had been at the gas station. None said
he or she recognized the man (A.11, T.802-14, 982).
* Indeed, based on the more detailed testimony at trial, defense
counsel sought the right (which was granted but not ultimately ex-
ercised), to reargue the admissibility of the shell casing (T.837-38).
7
In fact, two of the eight did know and recognize the
killer in spite of his disguise. The first, Melvin Gittens,
was at the gas station with his sister and brother-in-law.
They were waiting to meet Gittens’ lawyer (Robert Stein),
before all of them went to the 23rd Precinct where Gittens
was to surrender on a charge that he had killed a man in a
barroom fight the previous Friday, January 9 (T.284, 291,
294, 337-38, 454-56). Gittens recognized Payton because
the two had known each other all their lives, had attended
the same junior high school, had seen each other frequently
thereafter when they were growing up in the same neigh-
borhood, and, during the year preceding the murder, had
seen each other two or three times a week at local bars
(T.285-86, 306-18, 331-32, 365-66).
At the 23rd Precinct, Gittens told his sister that he knew
the killer and, after some thought about the killer’s last
name, told her the name was ‘‘Teddy Pane’’ (T.413-14,
see also T.365). Stein told Gittens that this information
might be helpful on his own case, and that he, Stein, wanted
to handle the divulgence of that information (T.462). When
Gittens spoke to the police that morning, he gave them an
account of what he had seen. He did not tell them he knew
the killer (T.292-93, 304, 813-14).*
* Raymond Williams, an attendant at the gas station, was the
second person who recognized Payton on January 12. The two had
known each other for more than a year and had met more than a
dozen times in a bar at which Williams had worked (T.495, 527-28).
A few weeks before the murder, Williams was at the gas station when
Payton had a dispute with another attendant. Williams settled the
dispute (T.494, 495-98). Williams did not identify Payton to the
police on January 12. He had an extensive criminal record, had not
told his employer about it, and was afraid of being exposed if he got
“involved” in this case. It was not until January 27, when Detective
Malfer re-interviewed Williams, that he identified the killer as Payton
( T.498-501, 541-43, 545-53).
January 13, 1970
The day after the murder, January 13, 1970, Detective
Malfer spent going back to the gas station, looking for
more evidence and for other possible witnesses (T.814).
January 14, 1970
Meanwhile, Stein had arranged a meeting at which his
client would divulge his information. On the morning of
January 14, Stein and Gittens met with Detective Malfer
at the District Attorney’s Office. There, Gittens told the
detective the name of the killer (T.293, 304, 379-83). Al-
though not explicitly stated in the record, it is likely that
Gittens gave the name ‘‘Teddy Pane’’ since that is the
name by which he knew the killer (see T.413-14).* Thus,
for the first time Detective Malfer had a name (albeit not
the correct one)—but not a face, a body, or an address to
go with it.
When Detective Malfer’s interview with Gittens ended
is not expressly stated in the record. However, the record
does indicate that the interview must have lasted until
early afternoon, because, as Gittens testified, he was at the
District Attorney’s Office ‘‘a good while,’’ and he missed
lunch (T.381). In any event, after the interview Detective
Malfer received a call from the 23rd Precinct directing him
to the 40th Precinct in the Bronx, where he was to meet
someone with information about the murder (T.816).
At the 40th Precinct, Detective Malfer met Jesse
Leggett, a friend of Payton’s. Again, the time of this meet-
* Detective Malfer’s notebook for this case contains a summary
of this interview and has the following entry: ‘Knows perpetrator
as Teddy Paine—Payne” (T.297, People’s Exh. 4F for Id., Entry
for Wed. Jan. 14, 1970, 10 a.m.).
9
ing is not stated explicitly in the record but can be recon-
structed from Leggett’s testimony about what he had done
earlier that day. At about 10:30 or 11 a.m. Leggett was at a
bar in the Bronx. He was picked up by the Nassau County
Police and taken to Nassau County. He was a suspect ina
robbery there (as was Payton) and was questioned by the
Nassau Police for one to one and a half hours. Then Leg-
gett was brought back to the 40th Precinct in the Bronx
where Detective Malfer met him (T.722-25, 728-32). Thus,
Leggett’s interview with Detective Malfer took place, at
the earliest, in the mid-afternoon.
Leggett gave Detective Malfer the following account:
Two days earlier, on January 12, 1970, Leggett had heard
about the murder from his friend, Raymond Williams, the
gas station attendant. Leggett bought a copy of the early
edition of the next day’s Daily News, which contained an
article describing ‘‘the slaying of a service station manager
in Kast Harlem * * * [who] was cut down at nine a.m. by
two shots in the chest from a rifle fired by [an approxi-
mately 30 year old] thug’’ (T.666, 676-77, 794-796A). At
about 9:15 that evening (January 12), ‘‘Teddy’’ came in
and said, ‘‘Jessie, I got a problem. * * * I did something
I’m sorry for. * * * I hit a gas station.’’ Leggett then
showed ‘‘Teddy’’ the article about the incident in the Daily
News and asked, ‘‘[W Jas that him?’’ ‘*‘Teddy’’ responded,
‘*Yes’’ (T.664-65, 670-71).*
* The signed statement Leggett gave to Detective Malfer on Jan-
uary 14 (T.678, People’s Exh. 4R for Id.) is quoted below:
On Monday evening, about 9 or 10 PM, I stopped at the
Shannon View Bar on Cypress Avenue, between 138 Street,
and 139 Street. Teddy came in, came over to me, said “I did
something today that I am sorry for. I said, “what hap-
pened.” He said “I can’t tell you.” I said “what did you
(footnote continued on next page)
10
After giving his statement, Leggett drove with Detective
Malfer through the Bronx and pointed out the five or six
story building where ‘‘Teddy’’ lived. Neither the police
nor Leggett went into the building (T.671-72, 783-90, 816-
17), but Leggett told Detective Malfer that Payton lived on
the top floor (A.11, 34). They returned to the 23rd Pre-
cinct in Manhattan where Leggett was shown a series of
photographs. At the trial, because of a defense objection,
Leggett did not testify about the photographic array
(T.817). But Detective Malfer’s notebook contains the fol-
lowing entry:
1/14/70-Wed: 7:25 PM
In 23rp Sqd office, six (6) photos, numbered on back
shown to Jesse Leggett, he picked #4—which was
photo of Teddy Payton, and said, ‘‘that is the one
who told me, he was sorry for shooting the guy in
Gas station.’’ (A.20, T.12-13, 829-30, People’s Exh. 2
for Id.).
Undoubtedly, the police must have had the name ‘‘ Teddy
Payton’’ before Leggett was shown the photographic array ;
otherwise they would not have had Payton’s photograph in
do.” He said “I shot a guy, but I didn’t mean to do it, I
swear I didn’t mean to do it, I swear I didn’t want to hurt
anybody.” So I said again, "what ha ed?” He said I
hit a gas station and the guy grabbed the gun by the muzzle,
I didn't mean to shoot him. I showed him a copy of the Daily
News. he read the article, said again, sorry, I didn’t mean to
do it. Actualy, he read the article before he told me what had
happened. I told him, go home and get some sleep. He said I
can't sleep I’m too worried. I said, “what are you going to
do.” He said “I’m going to go some-where. In a few minutes
he left. This was the last time I saw him.
The reason I giving this qutocation I think teddy is mixed
up and I dont want to see him hurt because he is a very nice guy.
; /s/ Jesse James Leggett
( Notebook Entry for Wed. Jan. 14, 1970).
11
the array. How or at what time they first learned the name,
however, is not in the record. Perhaps Leggett had men-
tioned it earlier. Perhaps the police did a check of utility
companies after Payton’s building was pointed out by Leg-
gett. Or perhaps they learned the name in another way
not suggested by the record. In any event, after the photo-
graphic array, the police had, for the first time, connected
the murder with the name of Theodore Payton, a face, and
an address.
The record does not state what Detective Malfer did
after Leggett identified Payton’s picture.* There is noth-
ing to indicate that he and his fellow officers immediately
formulated a plan to arrest Payton in his apartment the
next morning. True, by then, the officers had probable cause
to believe Payton was the murderer; and someone claiming
to be a friend of Payton’s had pointed out where he lived.
However, they also had some reason to believe .e might
not be there. Payton knew several people at the gas
station and must have been worried that they also recog-
nized him. Going home after the murder would not
have been his safest course.** Moreover, in no event
would the officers have wanted to arrest Payton in his
apartment without doing much more planning and work.
A private dwelling is a very dangerous place—perhaps the
most dangerous place—in which to arrest a murderer who
may still have his weapon. Before deciding to arrest him
* Detective Malfer’s memorandum book indicates for January 14:
“From -Duty 10:30 PM.” (T.830, People’s Exh. 4T for Id.).
** According to Leggett’s statement contained in Detective Mal-
fer’s notebook, Payton had said on the evening of January 12 that
he was worried, could not sleep and was going “some-where.” See
note at pj. 9-10, supra.
12
there, the officers would have wanted to explore the possibil-
ity of finding him somewhere else. At a minimum, if they
could not find another place to arrest him, they would have
wanted to know more about the building and his apartment
in order to minimize the danger to themselves, to Payton,
and to innocent bystanders. Who else lived in the building?
In his apartment? Was there a floor plan of the apartment
available? What would his possible escape routes be?
In fact, the officers did go to arrest him in his apartment
the next morning, January 15, at 7:30 a.m., which itself is
a strong indication that they had not formulated a plan the
night before. If they had, it is likely that they would have
arrived earlier, before sunrise, indeed before daylight.
Then the officers would have been able to knock on the door
at the first light—a relatively less dangerous time because
it permits an arrest during daylight but still at an hour
when the defendant is likely to be surprised.*
January 15, 1970
Five police officers arrived at the building at 7:30 a.m.
(4.12, T.817). ‘*[E]very angle’’ was covered, although De-
tective Malfer, testifying four years after the events, could
not recall precisely where each officer was stationed (T.898-
904). As Detective Malfer approached the door of the
apartment, he saw a light from underneath the door and
heard a radio from inside. One of the officers knocked
* The fact that the officers did not, on the evening of January 14,
formulate a plan to arrest Payton in his apartment 1s also suggested
by Detective Malfer’s memorandum book entry for January 15:
Jan. 15, 1970—Special assigned U.F. 61 4491 (Homicide) Jn
23rp Squad office 7 AM under the Command of Sgt. Hoarty:
Re: Information Perpetrator Teddy was at his home: 682 E.
141 St. 5C (T.830, People’s Exh. 4T for Id.) (emphasis added).
13
on the door and called cut, but there was no answer. The
officers saw that they could not open the metal door, so they
ealled Emergency Services, which arrived about a half
hour later. With crowbars, they forced open the door
and entered (A.12-14, 24-27, T.817-19, 899-902).
They looked through the apartment for Payton, but he
was gone. However, the officers saw in plain view on the
top of a stereo set a .50 caliber shell casing which they
seized. In addition, they found a shotgun and bandolier
with 14 bullets in a clothes closet or a linen closet. Either
in a drawer or on top of a bureau, the officers found three
pictures of Payton in a ski mask and a reeeipt for a .30-30
Winchester rifle (A.15, 17-18, 28-30). All but the shell
casing was suppressed on consent of the prosecutor before
the suppression hearing.
The Trial, Conviction, and Affirmance
by the Appellate Division
At trial, Gittens and Williams, the two people who knew
Payton and recognized him at the gas station, testified that
he was the murderer (T.284-88, 365, 492). In addition,
Leggett testified that on the evening of the murder, Payton
had come to a local bar and admitted committing the crime
(T.663-67, 676-77). Finally, there was testimony linking
Payton with the murder weapon. Ballisties experts tes-
tified that the .30 caliber shell casing found in Payton’s
apartment three days after the murder was fired from the
same rifle as were the fatal shots (T.806-13, 819-23, 1010-
15). A gun dealer from upstate New York testified that he
had sold a .30-30 Winchester rifle to Payton about two
months before the murder (T.592-97, 608, 618-19, 634).
14
On June 21, 1974, the jury convicted Payton of felony
murder but could not reach a verdict on the count charging
intentional murder (A.1, T.1267, 1302-05). On October 29,
1974, he was sentenced to a term of imprisonment of from
15 years to life (A.1). On December 16, 1976, the Appel-
late Division unanimously affirmed the judgment without
opinion (A.42-43).
Riddick v. New York, No. 78-5421
At about noon on March 14, 1974, police officers went to
Riddick’s apartment to arrest him on several robbery
charges. They knocked on his door, which was opened by
his son, saw Riddick sitting up in bed with his hands under
a sheet, walked in, announced their authority, and arrested
him.* In a search incident to that arrest, the officers dis-
* Crim. Proc. Law (McKinney 1971):
$140.10. Arrest without a warrant; by police officer; when and
where authorized
1. * * * [A] police officer may arrest a person for:
= * =
(b) A crime whe> he has reasonable cause to believe that
such person has comnutted such crime, whether in his presence
or 0 ise.
$140.15. Arrest without a warrant; when and how made by
police officer
1. A police officer may arrest a person for an offense, pur-
suant to section 140.10, at any hour of any day or night.
* > *
4. In order to effect such an arrest, a police officer may enter
premises in which he reasonably believes such person to be
present, under the same circumstances and in the same manner
as would be authorized, by the provisions of subdivisions four
and five of section 120.80, if he were attempting to make such
arrest pursuant to a warrant of arrest.
(footnote continued on next page)
15
covered heroin and related narcotics implements. On April
16, 1974, Riddick was indicted for criminal possession of a
controlled substance in the fifth degree (more than one-
eighth of an ounce of heroin) and for criminally possessing
a hypodermic instrument.
The Pre-Trial Hearing and Decision on the
Motion to Suppress
Detective Fred Bisogno testified that in June, 1973 he
learned that Riddick was wanted in connection with several
robbery charges (A.52). At ‘‘some [unspecified] time’’
prior to the arrest on March 14, 1974, complainants in two
of these cases had picked Riddick’s picture from a photo-
graphic array (A.59). In at least one case, a weapon had
been used.
$120.80. Warrant of arrest ; when and how executed
1. A warrant of arrest may be executed on any day of the
week and at any hour of the day or night.
* od *
_ 4. In order to effect the arrest, the police officer may, under
circumstances and in a manner prescribed in this subdivision,
enter any premises in which he reasonably believes the defendant
to be present. Before such entry, he must give, or make reason-
able effort to give, notice of his authority and purpose to an occu-
pant thereof, unless there is reasonable cause to believe that the
giving of such notice will:
(a) Result in the defendant escaping or attempting to es-
cape; or
(b) Endanger the life or safety of the officer or another
person ; or
(c) Result in the destruction, damaging or secretion of
material evidence.
5. If the officer is authorized to enter premises without giv-
ing notice of his authority and purpose, or if after giving such
‘notice he is not admitted, he may enter such premises, and by a
breaking if necessary.
16
Although Detective Bisogno first learned Riddick’s
‘‘whereabouts”’ in January 1974 (.A.53), it is not clear that
the police then had enough information to locate Riddick
in order to arrest him. In faet, the detective testified that
Riddick ‘‘had been in the hospital, Harlem Hospital, under
an assumed name, and we had lost all contacts with him”’
(A.59). In addition, Riddick’s appearance had changed
from how he looked in a picture in the police’s possession
(A.51). Because Riddick had been on parole, his parole off-
cer was approached for help (A.51). Either through him,
or by other means, the detective did eventually locate Rid-
dick.
At about noon on March 14, 1974, Detective Bisogno to-
gether with two other detectives and a parole officer, arrived
at Riddick’s apartment. The parole officer entered first, ex-
ited, and gave a signal. Then Detective Bisogno approached
the door. He did not demand entry. He simply knocked.
Riddick’s son opened the door, and the detective, still
standing outside the door, saw Riddick in a bedroom, seated
in bed, with his hands underneath a waist-high sheet. De-
tective Bisogno walked in, announced his authority, and
asked the defendant whether his name was Obie Riddick.
When Riddick said ves, he was arrested. Fearing that Rid-
dick might have a weapon, the detective—who was holding
his own hand on his gun, which was in his pocket—asked
Riddick to take his hands from beneath the sheet and get
out of bed (.A.48-49, 53-55, 57-58).
When Riddick stood up, the detective saw that Riddick
was dressed in underwear only. As a safety measure, while
his partner watched Riddick, Detective Bisogno searched
17
the bed and a dresser two feet from the bed. In the top
drawer of the dresser, Detective Bisogno discovered the
contraband (A.50, 55-57).
The court found the facts essentially as Detective
Bisogno had stated them. It held that there was prob-
able cause to arrest Riddick and further, that under Crim-
inal Procedure Law Section 140.10(1)(b), the officers did
not need a warrant to effect the arrest. Finally, the court
upheld the search incident to the arrest because the officers
could reasonably expect that Riddick, a suspect in several
armed robberies, might have concealed a weapon in the
nearby chest into which he would have to go to get clothes
(A.63-66). The judge did not discuss whether it was consti-
tutionally permissible to enter Riddick’s dwelling without
an arrest warrant.
The Guilty Plea, Sentence and Affirmance
by the Appellate Division
After the court denied the motion to suppress, Riddick,
on August 19, 1974, pleaded guilty to the lesser charge
of criminal possession of a controlled substance in the sixth
degree (A.44). On September 24, Riddick was sentenced
to an indeterminate prison term of from two and one-half
to five years (A.44). He appealed the denial of his motion
to suppress, see N.Y. Crim. Proc. Law §710.70(2) (MeKin-
ney 1971), and the Appellate Division affirmed, with one
judge dissenting. By the time of oral argument in this
Court, Riddick will no longer be serving the sentence in the
instant case, although he will still be incarcerated for armed
robbery.
18
Opinion of the New York Court of Appeals
In the Court of Appeals, a majority of four judges (per
Jones, J.) affirmed both convictions, holding that because
the officers had ‘‘unquestionable probable cause’’ to arrest
Payton for murder and Riddick for armed robbery (A.73-
74), it was lawful to enter the dwellings to effect the arrests.
The court upheld the constitutionality of the state statutes
authorizing such entries without an arrest warrant.
The majority began with appellants’ argument: Because
a warrant is ordinarily required before the police may
enter a dwelling to search for things, ‘‘symmetry’’ requires
a warrant before an officer may enter a dwelling to arrest a
felon (A.74). This argument was rejected because of the
substantial differences between entering to search and en-
tering to arrest. A search contemplates ‘‘rummaging
through possessions,’’ an ‘‘upheaval of the owner’s chosen
or random placement of goods and articles,’’ and disclosure
to the police of many personal items. Entry to search,
therefore, ‘‘strip[s] bare * * * the privacy which normally
surrounds [the householder] in his daily living’’ (A.75).
An entry to make an arrest, on the other hand, inter-
feres with the privacy of the home to a lesser degree.
‘*{T]here is no accompanying prying into the area of ex-
pected privacy attending his possessions and affairs.’’
True, the majority recognized, arresting someone is of
‘“‘grave import.’’ However, this Court had already held,
in United States v. Watson, 423 U.S. 411 (1976), that an
arrest may be made in a public place without an arrest
warrant. The majority concluded that the same rule should
19
apply if the arrest is in a dwelling. ‘‘{AJn arrest will al-
ways be distasteful or offensive, [but] there is little reason
to assume that arrest within the home is any more so than
arrest in a public place; on the contrary, it may well be
that because of the added exposure the latter may be more
objectionable’’ (A.76).
After concluding that an arrest warrant requirement
is much less necessary than a search warrant requirement
to protect the privacy of the home, the majority compared
the governmental interest in arresting felons with the gov-
ernmental interest in searching for things. Making entry
to effect an arrest without an arrest warrant .. ‘‘reason-
able’’ in part because the community’s interest in catching
the felon is so strong. This interest is of a ‘‘higher order”’
than the interest in recovering contraband or evidence
(A.76).
Finally, in concluding that it is ‘‘reasonable’’ within
the meaning of the Fourth Amendment to arrest a felon
in his dwelling without an arrest warrant, the majority
relied upon ‘‘[t]he apparent historical acceptance in the
English common law of warrantless entries to make fel-
ony arrests,’’ ‘‘the existence of statutory authority for
such entries in [New York] since the enactment of the
Code of Criminal Procedure in 1881,’’ ‘‘the fact that
a number of jurisdictions other than [New York] have
also enacted statutes authorizing warrantless entries of
buildings (without exception for homes) for purpose of
arrest,’’ and the fact that the American Law Institute’s
Model Code of Pre-Arraignment Procedure makes similar
provision (A.76-78).
20
The majority then considered appellants’ other argu-
ments. It rejected Payton’s contention that the officers
did not really enter his apartment to arrest him (A.78).
And it rejected Riddick’s argument that the entry into his
apartment was ‘‘statutorily invalid’’ because the officers
failed to give notice of their authority and purpose before
entering. The majority held that the statute was not vio-
lated because the entry was peaceable (A.80-81).
A fifth judge (Wachtler, J.), voted to reverse Payton’s
conviction on an issue not now before this Court.* How-
ever, he joined the majority in concluding that the shell
casing was admissible. Although Judge Wachtler con-
cluded that ordinarily the police need a warrant to enter a
awelling in order to arrest someone, he believed that the
officers were excused from obtaining one in Payton (though
not in Riddick). Judge Wachtler found that ‘‘from the
time of the murder the police had actively sought the
killer.”’ Their ‘‘continuous and intensive investigation’’
led them to the door of Payton’s apartment ‘‘where they
had reason to believe he might be hiding.’’ In these cir-
cumstances, Judge Wachtler believed ‘‘it was reasonable .
for the police to continue their pursuit into the apartment
in order to take a dangerous killer into custody’’ (A.81-82).
* Judge Wachtler concluded that the evidence given by the up-
state gun dealer concerning Payton’s purchase of the .30 calibre Win-
chester rifle should have been excluded because it was the “fruit”
of a receipt seized illegally from Payton’s apartment on January 15
(A.82-85). The majority held, as did the trial judge and the Appel-
late Division, that the gun dealer’s evidence would have “inevitably”
been discovered even if the officers had never seen the receipt (A.78-
80). Payton sought review in this Court of the question whether the
gun dealer’s evidence should have been admitted ; however, in noting
probable jurisdiction, this Court denied review of the question con-
cerning this evidence (A.97).
21
a
Two other judges (Cooke and Fuchsberg, JJ.) also
concluded that police officers ordinarily need a warrant to
effect an arrest for a felony in a dwelling. They believed
that there should be a warrant requirement ‘‘regardless of
the purpose for which [the] entry is sought’? (A.85, 88).
These two dissenters found no cireumstances sufficient to
excuse the failure to get an arrest warrant either in Payton
or in Riddick (A.85, 92-93).*
¥
Summary of Argument
A reading of aprellants’ brief might lead one to assume
that the issue in ti. case is whether privacy interests are
involved—and therefore whether the Fourth Amendment
applies—when a police officer makes a felony arrest in a
dwelling. Appellants, iowever, are debating false issues.
Of course there are privacy issues involved; and of course
the Fourth Amendment applies to arrests within dwellings.
The issue is not whether the Fourth Amendment applies but
what it commands. Specifically, when a police officer has
probable cause to believe a person has committed murder
(Payton), or an armed robbery (Riddick), does the Fourth
Amendment prohibit the officer from arresting the defend-
ant in his dwelling during the daytime without an arrest
warrant?
Even this way of stating the question is somewhat mis-
leading because it ignores the fact that the question has
* Contrary to appellants’ statement repeated several times (Ap-
pellants’ Brief at 18, 60 & n.44), the majority made no decision about
the existence of “exigent circumstances.” It ruled that, regardless
of whether there were “exigent circumstances,” no warratt was re-
quired (A.69). The majority was obviously describing appellants’
argument, and not its own conclusion, when it used the words “‘absent
exigent circumstances (of which there were none here)” on page
A.74.
» =
already been answered quite clearly in the negative by his-
tory. For hundreds of years, at common law, a constable
was not required to obtain an arrest warrant before arrest-
ing a felon in his dwelling. The law recognized the overrid-
ing community interest in arresting dangerous criminals.
Our English ancestors, however, were also very sensitive
to the privacy interests involved whenever a person was ar-
rested, and especially so when the arrest was effected by
forcible entry into a dwelling. They chose to protect those
privacy interests, not by requiring an arrest warrant, but
(1) by requiring the constable to knock and announce his
mission before he could enter forcibly, and (2) by holding
him liable in damages unless he could make a sufficient
showing, after the arrest, that he had arrested the right per-
son. Far from being perceived as a protection, the arrest
warrant was seen by some common law authorities as a dan-
gerous device because it served to insulate the constable
from liability.
The great spokesmen for liberty in the eighteenth cen-
tury appreciated this common law heritage. They looked to
it for inspiration when they criticized the government
abuses that led to the Revolution. These spokesmen were
condemning the growing abuses of power to issue and ex-
ecute search and arrest warrants. Their remedy for these
abuses was to reaffirm the principles underlying the com-
mon law of searches and arrests—principles which recog-
nized the traditional authority of a constable, without an
arrest warrant, to arrest a felon in a dwelling. The Fourth
Amendment was intended to embody the same judgment.
Throughout the nineteenth and twentieth centuries it was
accepted that a peace officer had the authority, without an
23
arrest warrant, to make felony arrests in dwellings during
the daytime. As of 1979, thirty-sia states had legislation
on the subject ; thirty of them had statutes authori izing such
arrests. The American Law Institute has twice approved
the validity of these arrests, once in 1932, and more recently
in 1975, Until the dictum in Coolidge v. New Hampshire,
403 U.S. 444 (1971), this Court accepted their validity with-
out question (although without directly deciding the point).
Just three years ago, in United States vy. Watson, 423 U.S.
411 (1976), and United States vy. Santana, 427 U.S. 38
(1976), again without deciding the point directly, this Court
went far towards recognizing and approving the policies
that require that peace officers have the authority to make
such arrests.
More precisely stated, then, the question is: Why in
the fourth quarter of the twentieth century should this
Court reject the wisdom of history and discover in the
Fourth Amendment a requirement that an officer must
have an arrest warrant before he may arrest a felon in a
dwelling? The Court is asked to consider this question in
the context of two cases which provide focus for the rele-
vant issues. First, in both cases the arrests were made in
the daytime. The Court need not consider special prob-
lems raised by nighttime entries. See Jones vy. United
States, 357 U.S. 493, 499-500 (1958). Second, both arrests
were for serious, armed felonies—murder in Payton and
armed robbery in Riddick. The Court need not consider
special problems that might be raised by arrests for less
serious felonies. See United States v. Watson, 423 U.S.
at 438 (Marshall, J., dissenting). Third, in each case the
defendant was arrested in his own dwelling. The Cour:
24
need not consider special problems that might be raised
by an entry into a dwelling other than that of the person
to be arrested.
In Section I (A) below, we will diseuss the history of
the constable’s authority, without an arrest warrant, to
make an arrest for a felony in a dwelling.
In Section I (B) below, we wil! show that the long-stand-
ing acceptance of the authority is based on sound social
policy. As the Court recognized in Watson and Santana,
an arrest warrant requirement will severely impede the
most basic function of our police—arresting felons and
bringing them to court to answer charges. At the same
time, arrest warrants will not add significant protections
to those already afforded people arrested in their homes.
Indeed, in several impertant respects, an arrest warrant
requirement will decrease those protections.
In Section I (C) below, we will urge that if the Court
imposes an arrest warrant requirement, it should nonethe-
less formulate an exception for ‘‘exigent cireumstances’’
different from the exception ordinarily applicable when po-
lice officers seek to excuse their failure to obtain a search
warrant. The definition of ‘‘exigent cireumstances,’’ we
will argue, must give weight to the powerful community in-
terest in arresting felons. Under the formulation we pro-
pose, the failure to obtain a warrant in Payton should be ex-
cused. The officers were engaged in an intensive and con-
tinuous investigation which led them directly to the door of
someone reasonably believed to be an armed murderer. It
was reasonable for them to take the next step and enter the
25
apartment without first obtaining an arrest warrant. If,
however, the Court adopts some other definition of ‘exi-
gency’’ then, depending on the definition chosen, a remand
would be necessary in order to develop further information
about whether it was practicable for the officers to obtain
a warrant before they arrested Payton.
Finally, in Section II below, we will urge that, regard-
less of whether the officers should have obtained an arrest
warrant, Payton is not entitled to the benefits of the exclu-
sionary rule. When Detective Malfer entered Payton’s
apartment, he was acting under the express authority of
a state statute. At the time (January, 1970), neither the
detective, his fellow officers, their supervisors, nor any
prosecutor could have had any serious doubt about the law-
fulness of the entry. In these circumstances, it would be a
disservice to the salutary purpose of the exclusionary rule
to exclude the evidence found in plain view by the officers
upon entry.
26
POINT I
When there is probable cause to believe that a per-
son has committed m-~ ter (Payton) or armed robbery
(Riddick), the Four Amendment does not prohibit
a police officer from arresting that person in his dwell-
ing during the daytime without an arrest warrant.
A. The Fourth Amendment was intended to reaffirm
the common law principles governing searches and
arrests which, though protecting the sanctity of
the home, did not require an arrest warrant before
a peace officer could make an arrest for a felony
in a dwelling.
The common law is the source of much of our legal
heritage concerning the privacy of the home. For example,
the common law developed elaborate protections limiting
when a constable could enter a dwelling to search for stolen
goods. Before doing so, the constable needed a warrant.
This warrant, which was later to serve as the model for the
search warrant required by the Fourth Amendment, had to
be issued by a magistrate, based on sworn evidence which
amounted to probable cause. The objects to be seized had
to be particularly described. And the constable had to
inventory the things seized and make a return on the
warrant.
In spite of the concern about the privacy of the home—
expressed in the maxim ‘‘a man’s home is his castle’’—
the common law recognized that a civilized society has an
overriding interest in ensuring that felons are arrested
and brought to justice. This interest was considered much
more grave than the interest in searching for stolen goods.
27
A home—as sanctified as it might be—could not be allowed
to serve as a sanctuary for dangerous criminals. Accord-
ingly, the law governing arrests made in dwellings was
very different from that governing searches of dwellings.
When the constable entered a dwelling to make an arrest
for a felony, he did not need a warrant.
1. The Common Law: Peaceable Entries
As long as the entry was peaceable, the common law
treated an arrest in a dwelling like an arrest made any-
where else. The common law authorities were aware that
in some felony cases there might be time to obtain an arrest
warrant. See, e.g., 1 M. Hale, Pleas of the Crown 588
(first American ed. 1847) [hereinafter ‘‘Hale’’|]. But, in
view of the danger that violent criminals might escape ap-
prehension, the judgment was made not to require the con-
stable to seek a court’s approval of the arrest in advance.
Rather, when a felony had in fact been committed, it was
considered better first to establish custody of the person
and then, after the arrest, to conduct judicial proceedings.
This litigation after the arrest, not the arrest warrant,
was the way the common law protected those arrested.
There was prompt review by a local justice of the peace,
who could order immediate release. There was review by
the higher courts, which could issue writs of habeas cor-
pus. See 2 Hale 92; Gerstein v. Pugh, 420 U.S. 103, 114-
116 (1975). In addition, the arrested person could sue
the constable in a damage action. In such litigation, the
officer had to justify the arrest by showing either (1)
28
that the person arrested had committed a felony, or (2)
that there was ‘‘suspicion of felony,’’ which meant that a
felony had in fact been committed and that there was
probable cause to believe that the person arrested had
committed it. See 2 Hale 84-85, 92; Dalton, Country
Justice (1742 ed.) 384. In short, the constable acted at
the ‘‘peril’’ of making the required showing after the ar-
rest. Later in the development of the common law, after
the practice of issuing arrest warrants developed, sce
United States v. Watson, 423 U.S. 411, 429 (1976) (Powell,
J., concurring), an officer who arrested under a warrant in-
stead of under his own authority could not be held liable in
a damage action even if the warrant had been issued upon
less than probable cause.
2. The Common Law: Forcible Entries
The common law treated forcible entries to arrest dif-
ferently from peaceable entries. Before making a forcible
entry, the officer—whether he had an arrest warrant or
not—was required to state his authority and toglemand ad-
mittance. Thus, the occupants had the opportunity to open
the door and avoid the necessity of force. In this way, the
common law tried to avoid violent intrusion in the first
place and, if force became necessary, to reduce the danger
that could arise if the occupants mistook the officers for
criminals entering the house. If, however, those inside
would not open the door, it could be broken down. The fact
that a grave crime had been committed and that there was
reasonable belief that a person had committed it (‘‘suspi-
29
cion of felony’’) was sufficient to justify forcible entry into
the home.
The principle that ‘‘a man’s house is his castle’? did
not permit the person inside to barricade himself in his
house and frustrate the arrest. The notice requirement
was the way in which the common law reconciled the special
concern about forcible entry with the grave community in-
terest in arresting felons. Requiring an arrest warrant was
not the solution.
Thus, in the famous Year Book case from the 1400’s,
long before it became the practice for justices of the peace
to issue arrest warrants, we find the statement that forcible
entry is not perrfissible in connection with civil cases but is
permissible ‘‘for felony, or suspicion of felony.’’ In felony
cases, forcible entry was justifiable because of the com-
munity’s interest in apprehending felons: ‘‘for it is for the
commonwealth to take them.’’* Similarly, in 1603,
Semaine’s case—a landmark in establishing the principle
that ‘‘every man’s house is his castle’’—stated that the
‘*privilege of house’’ barred forcible entry of dwellings for
*13 Edw. IV, 9a: “{F]or felony, or suspicion of felony, a man
may break open the house to take the felon; for it is for the common-
wealth to take them.” This quotation is from Burdett v. Abbott, 104
Eng. Rep. 501, 560 (1811). The Year Book case itself is not avail-
able in lish, according to librarians at the law schools of New
York University and Columbia University.
The practice under which local justices of the peace issued arrest
warrants devel gradually during the sixteenth and seventeenth
centuries. See Holdsworth, A History of English Law (1922), pp.
294-95; Potter, Historical Introduction to English Law (London:
Sweet and Maxwell, 1932), pp. 209-10.
Unless otherwise indicated, in quoting from the common law
authorities, citations and footnotes are omitted.
30
purposes of civil litigation. But, forcible entry, after
notice, was permissible ‘‘for felony or suspicion of felony’’
because ‘‘it is for the commonwealth to apprehend fel-
ons.’’* Dalton, writing shortly after Semaine’s case,
stated that ‘‘it is lawful for the King’s officers, by force
to break open a man’s house to arrest offenders being
therein * * * for the apprehending of any person for
99%
treason, felony or suspicion of felony.
* 5 Co. Rep. 91a, 77 Eng. Rep. 194, 196-97: “| For felony or
suspicion of felony, the K[ing]’s officer may break ile house to ap-
prehend the felon, and that for two reasons: 1. For the common-
wealth, for it is for the commonwealth, to apprehend felons, 2. In
every felony the King has interest, and where the King has inter-
est the writ is non omittas propter aliquam libertatem; and so the
liberty or privilege of a house doth not hold against the King.”
** Dalton’s Country Justice (1742 ed.), p. 299:
“{1]n these Cases following, it is lawful for the King’s Offi-
cers, by Force to break open a Man's House to arrest Offenders
being therein, if the Doors shall be all shut, so as the Officer can-
not otherwise enter the House, zz.
1. For the Apprehending of any Person for Treason, Felony
or Suspicion of Felony.”
Although Dalton does not here state explicitly that the entry may be
made without a warrant, his meaning is clear in context. Immedi-
ately following the statement we have quoted, which deals with fel-
onies, Dalton lists circumstances, with respect to other offenses, when
forcible entry is permissible without a warrant:
“2. Where one hath dangerously wounded another, and then
flying into an House the Constable or other Officer upon fresh
Suit, may break open the Door, and apprehend the Offender.
So may any other Person besides the Officer.
3. Where there shall be an Affray made in an House, and
the Doors shut, the Constable, etc. may break into the House to
see the Peace kept.” (p. 300).
Dalton then goes on to discuss when forcible entry, upon writs or
warrants, is permissible in civil cases. In no case, however, could
(footnote continued on next page)
ee
31
Even after it became common for justices of the peace
to issue arrest warrants, the authority of a constable to
enter forcibly without a warrant continued to be recog-
nized side by side with his authority to enter forcibly based
on a warrant. Thus, Hale—who wrote extensively on the
subject of arrests in the mid-1600’s—stated that a con-
stable may enter upon a justice’s warrant." However, the
constable also has ‘‘original and inherent power”’ with re-
gard to arrests, 2 Hale 88. When a felony has been com-
mitted and there is probable cause to arrest, Hale stated,
‘*the constable may break open the door, tho he have no
warrant.’’** Similarily, in the 1700’s, Blackstone wrote that
doors be broken “to execute the King’s Process (upon the Body or
Goods of any Person) at the Suit of any Subject.” (p. 300).
Dalton then discusses the controversy about whether arrest war-
rants were valid at all. He notes that it was “much controverted,
whether a Justice of Peace may grant a Warrant to attach Persons
suspected of felony” before indictment (p. 403). But it was Dalton’s
position that “The Officer, upon any Warrant from a Justice, either
for the Peace, or Good Behavior, or in any other Case where the
King is a Party, may by Force break open a Man’s House, to arrest
the Offender * * *” (p. 404).
*1 Hale 583: “by the book of 13 £.4. 9.4. [the Year Book case
discussed above] a man that arrests upon suspicion of felony, may
break open doors, if the party refuses upon demand to open them,
and much more may it be done by the justice’s warrant.”
** 2 Hale 91-92: “[I|f there be a felony done, (suppose a rob-
bery upon A.) and A suspects B. upon probable grounds to be the
felon and acquainis the constable with it * * *
1. the constable may apprehend B. upon this account, * * *. [I]f
the constable should not be allowd this latitude in cases of this
nature, many felons would escape, and the party arrested hath no
eden thereby, for the justice of the peace, to whom in such cases
eis properly to be brought, may consider the circumstances, and pos-
sibly in some cases discharge or bail him, and upon his trial, if i -
nocent, he will be discharged. 3. But there must be felony in fact
(footnote continued on next page)
32
when a felony has actually been committed, the constable
‘‘may upon probable suspicion arrest the felon; and for
that purpose is authorized (as upon a justice’s warrant)
to break open doors, * * *.’’*
Foster’s writings are somewhat ambiguous. He stated
that, without a warrant, an officer could not justify a
forcible entry based on ‘‘bare suspicion.’’ He does not
say whether an entry without a warrant could be justified
by a showing of probable cause. But he does seem to say,
as subsequent authorities have interpreted him, that a war-
rant was not needed at least if the person inside had in fact
committed a felony. In such a situation, the dwelling is ‘‘no
done, and the constable must be ascertained of that, and aver it in his
it is issuable.
plea, and it ns - A
3. * * * [I]f the supposed offender fly and take house, a ha
door will not be opened upon demand of the constable and noti on
tion of his business, the constable may break open the door, tho he
have no warrant. 13 E. 4. 9. a. [the Year Book case discussed ey
for it is a proceeding for the king by | sons by law authorized an
therefore there is virtually a non omittas in the actings of their au-
thority” (emphasis in original). Cate, ,
itorial footnote to the first American edition of Hale's wor
peor pam ‘in view of Hale’s reasoning and his other statements i
the subject in 1 Hale 583 (quoted above at p. 31, first footnote), 2 f
use of the words “if the supposed offender fly and take house” shou
not be taken to mean—and were not taken to mean by a later spayed
ity, Sir William Russell—that Hale considered forcible entry to a
permissible only when there was immediate pursuit. 2 Hale 92, n.iz.
* 4 Blackstone’s Commentaries (Andrews ed.) 292:
“The constable * * * hath great original and inherent authority
with regard to arrests. He may, without warrant, arrest any one
for a breach of the peace, committed in his view, and carry him
before a justice of the peace. And in case of felony actually
committed, or a dangerous wounding, whereby felony is like to
ensue, he may upon probable suspicion arrest the felon ; and for
that purpose is authorized (as upon a justice's warrant) to break
open doors, and even to kill the felon if he cannot otherwise be
taken ;’ (emphasis in original).
33
sanctuary’’ for him; doors may in such a ease be foreed.*
Thus, East, writing after Foster, clarifies Foster’s state-
ments by repeating his language and then adding that entry
without a warrani ‘‘will at least be at the peril of proving
that the party so taken on suspicion was guilty.’’ 1 Kast,
Pleas of the Crown, p. 322 (1806 Phila. ed.). See also 1
Russell on Crimes (1819), p. 745. East concludes his dis-
cussion of the subject by stating, ‘‘according to Lord Hale,
if there be a charge of felony laid before the constable, and
reasonable ground of suspicion thereon * * * the constable
or his watch may break open doors * * *.’? (Id.).**
* M. Foster, Crown Law (3rd ed. 1792) pp. 320-321: ‘Where a
felony has been committed or a dangerous wound given, or even
where a minister of justice cometh armed with process founded on a
breach of the peace, the party’s own house is no sanctuary for him;
doors may in any of these cases be forced, the notification, demand,
and refusal before mentioned having been previously made.
“In these cases the jealousy with which the law watcheth over the
publick tranquility, (a laudable jealousy it is,) the principles of politi-
cal justice, I mean the justice which is due to the community, ne
maleficia remaneant impunita, all conspire to supersede every pre-
tence of private inconvenience; and oblige us to regard the dwellings
of malefactors, when shut against the demands of publick justice, as
no better than the dens of thieves and murderers, and to treat them
accordingly.
“But bare suspicion touching the guilt of the party will not war-
rant proceeding to this extremity, though a felony hath been actually
committed ; unless the officer cometh armed with a warrant from a
magistrate grounded on such suspicion.”
** Appellants’ Brief, at p. 47, makes much of East’s statement that
an officer must be in “fresh pursuit” before he may, without a war-
rant, forcibly enter a dwelling in order to re-take a person who has
previously been lawfully arrested and then escaped. 1 East 324.
However, East was not writing here about felony cases but about
cases of escape—no matter how petty the offense for which the orig-
inal arrest had been made. The common law authorities treated such
“re-taking” cases as a separate category with rules of its own. See,
eg., 1 J. Chitty, Criminal Law (3rd Amer., from 2d London, ed.
1836) 57; 2 Hawkins, Pleas of the Crown (6th ed. 1788), c. 14 sec.
9, p. 138. When the New York Code of Criminal Procedure codified
the common law rules of arrest in 1881, special provision continued
to be made for such cases. Sec. 187 provided for forcible entry “to
retake the person escaping * * *,”
34
Burn (who, like Foster, wrote in the 1700’s) stated that
a constable may break open doors not only with a warrant,
but without a warrant ‘‘upon reasonable cause suspected.’”*
Similarly, Chitty, writing in the early 1800’s about the body
of law which had developed, stated, ‘‘ A constable may break
open doors to take a felon * * * where a felony has in fact
been committed by someone, and there be reasonable ground
to suspect that a person be the offender.’’**
* 1 R. Burn, Justice of the Peace (1755 ed.) 71. Burn agreed
with Hale that a constable could forcibly enter to arrest without a
warrant, and a private person could do so as well, though on more
limited grounds than an officer: “[I]t seems that he that arrests as
a private man, barely upon suspicion of felony, cannot justify the
breaking open of doors to arrest the party suspected, but he doth it
at his peril ; that is, if in truth he be a felon, then it is justifiable, but
if he be innocent, but upon a reasonable cause suspected, it is not
justifiable. 1 H.H. [Hale] 82.
“But a constable in such case may justify * * * 2 H.H. [Hale]
92.” [quoted above at p. 32, footnote]. 1 Burn 71 (emphasis
in original ).
Burn prefaced his discussion of forcible entry with or without a
warrant by stating, “as to the case of breaking open doors, in order
to apprehend offenders, it is to be observed that the law doth never al-
iow of such extremities but in cases of necessity ; and therefore no one
can justify breaking open another’s door to make an arrest, unless he
first signify to those in the house the cause of his coming, and request
them to give him admittance.” 1 Burn 71.
** 1 J. Chitty, Criminal Law (3rd Amer., from 2d London, ed.
1836) 22-23: “A constable may break open doors to take a felon, if
he be in the house, and entry denied after demand, and notice given
that he is a constable. * * * So, where a felony has been committed
by some one, and there be reasonable ground to suspect that a person
be the offender, a constable has a similar power of breaking open
doors to apprehend him.
Chitty discussed the earlier authorities and concluded, as Burn
had, that a private person may justify forcible entry without a war-
rant by proving “the actual guilt of the party arrested” and that
“reasonable ground of suspicion” will not suffice. But an officer is
excused when he is “acting bona fide on the positive charge of an-
other.” (1 Chitty 53. See first footnote, supra, and 1 Burn, Jus-
tice of the Peace [1869 ed.] 303; see also p. 301 and Vol. 5, pp.
1134, 1135.) Chitty and the later editions of Burn add the caution
(footnote continued on next page)
35
These common law authorities, who rejected an arrest
warrant requirement, developed the protections upon which
the modern law of arrest is based. They (1) developed
the concept of probable cause as the basis for arrest,
whether in a dwelling or elsewhere,* (2) provided for
prompt review of arrests by the courts, (3) developed the
notice requirement for forcible entry,** (4) limited the role
of private persons in making arrests, (5) recognized the
validity ot arrest warrants which are based upon probable
cause and which name or describe the person to be ar-
rested, and (6) imposed an arrest warrant requirement for
most crimes but not for felonies. The modern law of
searches is based on the protections which these same com-
mon law authorities developed: a warrant, issued by a
magistrate, upon sworn evidence that amounts to probable
eause, particularly describing the place to be searched and
that ‘the breaking an outer door is, in general, so violent, obnoxious
and dangerous a proceeding, that it should be adopted only in ex-
treme cases, where an immediate arrest is requisite.” 1 Chitty 53;
1 Burn (1869 ed.) 303.
* See Samuel vy. Payne, 1 Doug. 359, 99 Eng. Rep. 230 (1780) ;
Beckwith v. Philby, 108 Eng. Rep. 585, 586 (1827) ; Davis v. Russell,
5 Bing. 354, 130 Eng. Rep. 1098, 1101-1102 (1829). See also 4
Stephen’s New Commentaries (2d ed. 1848) 388 (“upon a reason-
able charge of treason or felony, or of a dangerous wounding, where-
by felony is likely to ensue, or upon his own reasonable suspicion that
any of such offenses have been committed, he may without warrant
arrest the party so charged or suspected, and he will be justified in
doing so though it should afterwards turn out that the party is in-
nocent, or even that no such offense has been in fact committed. He
is also authorized in these cases, as well as upon a justice’s warrant,
to break open doors.” )
** As the common law developed, the degree of “force” which was
considered necessary to bring the notice requirement into play was
reduced until today the requirement applies when there is no more
force than the turning of a doorknob. Sabbath v. United States, 391
U.S. 585, 590 (1968). It is the unannounced intrusion which is the
primary consideration and which the notice requirement directly
confronts.
,
36
things to be seized, and requiring an inventory and return.
See Entick v. Carrington, 19 Howell’s State Trials 1029,
1066-67 (1765).
There were other common law authorities, like Coke,
who disagreed with these developments. But, Coke does
not aid appellants’ position. He was not a partisan of
warrants. On the contrary, he rejected the validity of both
arrest warrants and search warrants issued by local jus-
tices of the peace. He did not recognize the authority of
a constable (before indictment) to make arrests except in
his capacity as a private person. In his capacity as a
constable, he could make an arrest only upon what Coke
called a ‘‘writ,’’ which was not an arrest warrant issued
by a local magistrate but was process issued after indict-
ment. See 4 Inst. 176-78. In fact, Coke rejected most of
what was to become accepted law and practice. Compare
2 Hale 107-10, 112-14.
But, although Coke disagreed with most of the common
law developments, he agreed that, in felony cases, prior
judicial approval was not needed before a dwelling could be
forcibly entered to make an arrest. Coke preferred the
practice of earlier times when most arrests were made by
private persons who justified their arrests on the basis of
first-hand knowledge that the person arrested had com-
mitted the crime. See United States v. Watson, 423 U.S.
at 429 (Powell, J., concurring). Therefore, Coke regarded
forcible entry as justified not by an arrest warrant, but by
a showing that the person arrested had actually committed
the felony, see 2 Hale 90. Similarly, Hawkins, who also
believed that a constable had no greater authority to arrest
than a private person (2 Hawkins, Pleas of the Crown, e.
37
13, see. 7, p. 130 [6th ed. 1788]), stated that forcible entry
Was proper to arrest a ‘known’? felon ‘with or without a
warrant by a constable or private person.’”*
3. The Events Which Led to the Adoption
of the Fourth Amendment
One of the reasons some common law authorities dis-
trusted arrest warrants was that local justices of the peace
might issue them without any basis, ie, on ‘bare sur-
mises.’? Coke. 4 Inst. 178. Arrest warrants abused in this
manner deprived the person arrested of his remedy against
an officer who made an arrest which was based on less than
probable cause. In addition, arrest warrants could be gen-
eral, And, as Hawkins wrote, the general warrant ‘*might
have the effect of an hundred blank warrants”? (2 Hawkins,
ce. 13, see. 10, p. 132), leaving it to the officer to arrest whom-
ever he chose without any basis whatsoever,
The ability of the warrant, particularly the general
warrant, to shield officials from accountability presaged
*2 Hawkins, Pleas of the Crown (6th ed. 1788), c. 14, pp. 138-
139: “where a person authorised to arrest another who is sheltered in
a house, is denied quietly to enter into it, in order to take him: it
seems generally to be agreed, that he may justify breaking open the
doors in the following instances:
a * *
Fifthly, where one known to have committed a treason or felony,
or to have given another a dangerous wound, is pursued either with
or without a warrant, by a constable or private person. But where
one lies under a probable suspicion only, and is not indicted, it seems
the better opinion at this day, that no one can justify the breaking
open doors in order to apprehend him.” Hawkins use of the word
“pursued” here does not mean that he considered immediate pursuit
to be required for forcible entry in felony cases. When Hawkins
meant immediate pursuit, he said precisely that, for example, in his
next instance of when doors may be broken: “where those who have
made an affray in his presence fly to a house, and are immediately
pursued by him [the constable].” 2 Hawkins 139 (emphasis added),
38
developments which led to the Revolution and to the
Fourth Amendment. By the 1760’s, general warrants, for
both search and arrest, were being used in England and
the colonies to enforce extensive economic and social pro-
erams. Under general search warrants known as ‘‘ Writs
of Assistance,’? customs and excise officials searched
houses, shops and other places for prohibited or uncus-
tomed goods. These writs did not specify the places to
be searched or the objects to be seized, required no in-
ventory or return, and were of indefinite duration. In
effect, as Otis was to say, these ‘‘monsters in the law’’
lived forever and granted customs and excise officials
earte blanche to search anywhere for anything. They
did not, however, authorize these officials to make arrests.
See Lasson, The History and Development of the Fourth
Amendment (1937) [hereinafter ‘‘Lasson’’], pp. 28-29,
33-34, 37-42, 51-56.
General warrants were also used to enforce regulation
of businesses, especially printing. Efforts to control the
press led to a Star Chamber decree of 1566 which conferred
upon agents of the Stationers’ Company broad powers of
search, seizure, and arrest as well. Later, executive offi-
cials known as ‘‘messengers’’ were issued general warrants
to search for prohibited books and papers. Although the
legislation authorizing this practice lapsed in 1695, Sec-
retaries of State continued to issue these genera! warrants
in eases of what was termed ‘‘ seditious libel.’? See Lasson,
pp. 23-28, 31-34, 37-38, 42-43; Marcus v. Search Warrants,
367 U.S. 717, 724-27 (1961).
These abuses, and the great challenges to them, had
nothing to do with the common law authority of a constable
39
to enter a dwelling to arrest a felon. James Otis, Patrick
Henry, William Pitt, and the judges who made the great
decisions of the 1760’s were condemning something quite
different—the vast power of numerous officials to enter
every house and every business without proper restraints
set by law and without accountability.
Otis condemned the ‘‘ Writs of Assistance’’ and gave as
an example of its awesome power a Boston customs official
who appeared in court to answer for some minor offens
With the power granted by the writ, the customs official told
the judge, ‘‘I will show you a little of my power,’’ and then
searched from top to bottom the homes of the judge and
also the constable who had called him into court.* As Otis
said, under the Writs of Assistance, customs house officers
were beyond the law: ‘‘{W]hether they break through
malice or revenge, no man, no court can inquire—bare sus-
picion without oath is sufficient. * * * [N]o one ean be
called to account.’’**
* This example is given by Otis in his argument in the “Writ
of Assistance” case, see 2 Legal Papers of John Adams (Wroth and
Zobel ed. 1965) 143.
** 2 Legal Papers of John Adams 142-43: “Now one of the
most essential branches of English liberty, is the freedom of one’s
house. A man’s house is his castle; and while he is quiet, he is as
well guarded as a prince in his castle. This writ, if it should be
declared legal, would totally annihilate this privilege. Custom house
officers may enter our houses when they please—we are commanded
to permit their entry—their menial servants may enter—may break
locks, bars and everything in their way—and whether they break
through malice or revenge, no man, no gourt can inquire—bare sus-
picion without oath is sufficient. * * * fg these writs ARE NOT
RETURNED. Writs in their nature are temporary things; when
the purposes for which they are issued are answered, they exist no
more ; but these monsters in the law live forever, no one can be called
to account. Thus reason and the constitution are both against this
writ.”
40
Patrick Henry condemned the power of officials to ‘‘go
into your cellars and rooms, and search, ransack, and meas-
ure everything you eat, drink or wear.’’ He said that offi-
cials ‘‘ought to be restrained within proper bounds.’’*
William Pitt condemned the power of officials to enter
every home in the English cider regions in order to search
for violations of the excise laws. See Lasson, pp. 41-42.
He called it a ‘*dangerous precedent’’ to admit ‘‘the officers
of excise into private houses’’. And he reportedly also said,
“The poorest man may in his cottage bid defiance to all
the forces of the Crown * * *’? (quoted in Miller v. United
States, 357 U.S. 301, 357 and n.7 (1958)).
In the great cases of the 1760’s, the courts condemned
the power of officials to ransack a man’s house for hours
under a general warrant, going through his ‘‘secret cabinets
and burcaus”’ and carrying off his personal papers, whether
‘libellous’? or not, to a clerk for the Secretary of State.
See Entick v. Carrington, 19 Howell’s State Trials 1030,
1063-65 (1765). As Lord Camden stated, ‘‘To enter a
man’s house by virtue of a nameless warrant, in order to
procure evidence, is worse than the Spanish Inquisition ;
a law under which no Englishman would wish to live an
hour;’? Huckle v. Money, 95 Eng. Rep. 768, 769 (1765),
See also Wilkes v. Wood, 98 Eng. Rep. 489, 498 (1763).
* 3 Elliot’s Debates on the Federal Constitution (1836 ed.) 448-
49: “The officers of Congress may come upon you now, fortified
with all the terrors of paramount federal authority. Excisemen may
come in multitudes; for the limitation of their numbers no man
knows. They may, unless the general government be restrained by
a bill of rights, or some similar restriction, go into your cellars and
rooms, and search, ransack, and measure everything you eat, drink,
or wear. They ought to be restrained within proper bounds.”
41
In short, these great leaders were condemning a power
which, as Otis said, ‘‘if it should be declared legal, would
totally annihilate’ the principle that ‘‘a man’s house is his
eastle.’’ In condemning these broad and vicious powers,
however, they were not also condemning the common law
authority of the constable, with or without a warrant, to
enter a dwelling in order to arrest a felon. In fact, the
structure developed by the common law—both the law of
arrests and the law of searches—was a source of inspira-
tion to them. It was the common law which had developed
their guiding principle that ‘‘a man’s house is his castle.’’
In recognizing the right to be secure against ‘‘unreasonable
searches and seizures’’ and in prohibiting general war-
rants, the Fourth Amendment was intended to reaffirm
traditional common law limitations on searches and arrests.
Thus, when our forefathers condemned the general
search warrant, their model for limiting the power to
search was the common law warrant for stolen goods. See,
e.g., Otis’ argument against the ‘‘Writ of Assistance’’
(quoted above at p. 39, second footnote). Entick v.
Carrington, 19 Howell’s State Trials at 1066-67. Wilkes
v. Wood, 98 Eng. Rep. at 498. See also Marcus v. Search
Warrant, 367 U.S. 717, 727 (1961). Similarly, the general
arrest warrant was condemned because it unleashed the
power of arrest from the moorings 4«veloped by the com-
mon law. Under these general arrest warrants, whom to
arrest was ‘‘left to the discretion of the officer.’’ Leach v.
Three of the King’s Messengers, 19 Howell’s State Trials
1001, 97 Eng. Rep. 1075, 1088 (1765). The officer was free
to enter a dwelling to make an arrest, with little or no
basis; and no matter how scanty his basis, he could not be
42
held accountable in an action for damages. See Entick v.
Carrington, 19 Howell’s State Trials at 1059, Leach v.
Three of the King’s Messengers, 97 Eng. Rep. at 1088.
Under the protective principles of the common law, how-
ever, the constable could make an arrest in a dwelling;
but he could be held liable if he did not have probable cause
to believe the person he arrested had committed the felony.
Alternatively, the constable could make the arrest under an
arrest warrant, which would shield him from liability.
But, the warrant was not to be issued except upon probable
cause and with ‘‘directions’’ from the magistrate naming or
describing the person to be arrested. Leach v. Three of the
King’s Messengers, 97 Eng. Rep. at 1088.
4. Acceptance of Common Law Principles in this Country
In view of this history, it is not surprising that the law
of arrest at common law, as set down by such authorities
as Hale and Blackstone, became the law of arrest in this
country. American peace officers, both state and federal,
had the same authority to arrest as their common law pre-
decessors.” They could make arrests with and without
* United States marshals and their deputies had “the same powers
in executing the laws of the United States, as sheriffs and their depu-
ties in the several states have by law, in executing the laws of their
respective states.” (Act of May 2, 1792, c. 28, §9, 1 Stat. 265 ; quoted
in United States vy. Watson, 423 U.S. at 420, and see 421 n.9, collect-
ing subsequent reenactments.) A sheriff in New York was “e.xr officio,
a conservator of the peace” and had the authority to arrest without a
warrant. Coyles v. Hurtin, 10 Johns. Rep. 84, 86 (N.Y. Sup. Ct.
1813) (per Kent, Ch. J.). A constable had similar authority. See
Taylor v. Strong, 3 Wend. 384, 385-386 (N.Y. Sup. Ct. 1829). Police
officers in the metropolitan New York area possessed “all the common
law and statutory powers of constables except for the service of civil
process.” L. 1857, c. 569, Sec. 8. See Burns v. Erben, 40 N.Y. 453,
467 (1869). See also Shanley v. Wells, 71 Ill. 78, 81 (1873) (equat-
ing the authority of an Illinois peace officer with that of an English
constable at common law).
43
warrants in felony cases. For less serious crimes, they
generally needed warrants except when the offense was
committed in the officer’s presence. They could enter dwell-
ings peaceably to effect arrests. And they could enter
forcibly as long as they first knocked and announced their
authority in order to give the occupant an opportunity to
permit peaceable entry.
In the century following the Revolution, there was con-
siderable litigation concerning arrests made without war-
rants. In deciding those eases, the courts found the gov-
erning principles in the English common law authorities.*
* See, e.g. Holley vy. Mix, 3 Wend. 350, 353-54 (N.Y. Sup. Ct.
1829) (discussing Chitty and other English common law authorities,
and holding that arrest for a felony is proper without a warrant
“whether there is time to obtain one or not.”). See also the ote
following the report of this case in 20 Am. Dec., pp. 705-706, and
cases cited therein. See also Coyles v. Hurtin, 10 Johns. Rep. 84,
86 (N.Y. Sup. Ct. 1813) (reversing a jury verdict against a sheriff
who had arrested the plaintiff without a warrant for aiding an es-
cape). Taylor v. Strong, 3 Wend. 384, 385-386 (N.Y. Sup. Ct. 1829)
(citing Hale and other English common law authorities concerning
the authority of a constable to arrest without a warrant for breach of
the peace committed in his presence). Hawley v. Butler, 54 Barb.
490, 495-96 (N.Y. Sup. Ct. 1868) (quoting at length from Hale con-
cerning the common law authority of officers to arrest without a war-
rant in felony cases).
As in England, the common law rules were broadened by remov-
ing the requirement that a felony was in fact committed, so that an
officer could arrest without a warrant upon reasonable belief that a
felony had been committed.) See, e.g., Reuck v. McGregor, 32 N.J.L.
70, 74 (N.J. Sup. Ct. 1866) (“a peace officer may justify an arrest
upon a reasonable charge of felony, although it should turn out that no
felony had been committed”). Doering v. State, 49 Ind. 56, 19 Am.
Rep. 669, 670-671 (1874) (quoting from Holley v. Mix, supra). See
also Eanes v. State, 6 Humpreys 53, 44 Am. Dec. 289, 290-91 (Tenn.
1845), and the note following the report of this case in 44 Am. Dec.
at p. 292. See also Barnard vy. Bartlett, 64 Mass. 501, 57 Am. Dec.
123 (1852), Commonwealth v. Irwin, 83 Mass. 587 (1861), and
Commonwealth v. Reynolds, 120 Mass. 190, 21 Am. Rep. 510 (1876)
(broadening the common law rule by permitting forcible entry under
a warrant upon reasonable belief that the person to be arrested is
inside. ).
+4
For example, constitutional claims were made that a peace
officer should be required to obtain an arrest warrant un-
less he could prove that there was no time to get one. Those
claims were rejected on the basis of the long common law
history and for the same reasons the common law author-
ities found persuasive: ‘‘The public safety, and the due ap-
prehension of criminals, charged with heinous offenses, im-
periously require that such arrests should be made without
warrant by officers of the law.’’ Whether the uiieer had the
time to obtain an arrest warrant is for the officer to consider
‘*under his official responsibility, and [is] not a question to
be reviewed elsewhere.’’ Rohan v. Sawin, 59 Mass. 281,
285, 286 (1851).*
Once it was settled that a peace officer could arrest with-
out a warrant, the authority at issue here—to make an
arrest for a felony in a dwelling without a warrant—was
so well settled that there was not one direct constitutional
attack on it in the nineteenth century. There were, how-
ever, several discussions of this authority in cases consid-
ering related issues. These discussions stated what ap-
peared to be obvious—that peace officers had such authority.
In a very early case, Kelsy v. Wright, 1 Root’s Conn.
Rpts. 83, 84 (1783), an entry was made under a warrant.
In stating that the entry was lawful, the court did not men-
* See also Wakely v. Hart, 6 Binn. 316, 319 (Pa. 1814) (the rules
permitting arrest without a warrant are “principles of the common
law, essential to the welfare of society, and not intended to be altered
or impaired by the constitution. The whole section indeed was noth-
ing more than an affirmance of the common law * * *.”). North v.
People, 28 N.E. 2d 966, 972 (Ill. 1891) (the warrant clause “does
not abridge the right to arrest without warrant in cases where such
arrest could be lawfully made at common law before the adoption of
the present constitution.’’).
SN
45
tion the warrant but said that the officer ‘‘was lawful con-
stable and had right to break open the door and enter said
house * * *.’’ See also State v. Smith. 1 N.H. 346, 346-47
(1818). In McLennon v. Richardson, 81 Mass. 74, 77 Am.
Dee. 353, 354 (1860), the court, citing the English common
law authorities, recognized the authority of a constable to
break open doors and arrest without a warrant in ‘‘cases
where treason or felony has been committed * * *.°? Such
eases are of a ‘‘class which requires the immediate inter-
vention of legal authority, on account of the grave nature
of the offense * * *.’’ In Shanley v. Wells, 71 Tl. 78, 82
(1873), the court quoted Blackstone for the proposition
that, when a felony has actually been committed, the con-
stable may ‘‘upon probable suspicion, arrest the felon, and,
for that purpose, is authorized (as upon a justice’s war-
rant) to break open doors * * *.*’ In Rohan v. Sawin, supra,
the court discussed and approved an English case which up-
held the lawfulness of entry of a dwelling, without a war-
rant, to arrest for a felony. 59 Mass. at 285-86. In Wade v.
Chafee, 8 RT. 224, 5 Am. Rep. 572, 573 (1865), the court
relied upon the same English case in upholding the author-
ity of a police officer to arrest without a warrant whether or
not there was time to obtain one.*
* The nineteenth century treatises which appellants cite (Br. at
50-53) do not state that an arrest warrant is required for forcible
entry in felony cases. Barbour agrees with Chitty (quoted at p. 34,
2d fn., supra) that an officer, and a private person as well, may fore-
ibly enter without a warrant in order to arrest for a felony. O.
Barbour, A Treatise on the Criminal Law (3rd ed. 1883) 548. ( Ap-
pellarts quote Barbour’s statement that it would be “prudent” for
the ofticer the obtain a warrant. This statement was made with respect
to the offense of breach of the peace or an “affray.” Jd., p. 546.)
Bishop, as appellants recognize, agreed that no warrant is required in
felony cases. 1 J. Bishop, Criminal Procedure (3rd ed. 1880) 109.
Heard does not state that a warrant is required but repeats Foster's
(footnote continued on next page)
46
In the latter part of the nineteenth century, the obvious
became concrete. There developed a widespread movement
to codify the common law. This movement led not to ‘‘legis-
lation’? as we think of it now, but to civil and criminal
codes which ‘‘assembled’’ this law ‘‘so as to render it con-
veniently accessible.’’* The law of arrest was ‘*assem-
pled’? into numerous state statutes which recognized the
authority of peace officers, without warrants, io enter
dwellings in order to arrest felons. By 1930, 24 of 29
states which had enacted statutes on the subject author-
ized forcible entry by an officer without a warrant; five
states had statutes providing for forcible entry under a
warrant.”* As of 1975, 30 of the 36 states with statutes
statements, discussed at p. 33, supra. F. Heard, A Treatise Adapted
to the Law and Practice of the Superior Courts * * * in Criminal
Court 148 (1879). Russell and Colby do not require a warrant but
say that when the officer arrests without a warrant he may justify
the arrest by showing that the person arrested committed a felony.
1 Russell on Crimes (1819) 745. 1 J. Colby, A Practical Treatise on
the Criminal Law of the State of New York 74 (1868). Randall's
Case, 5 City Hall Record 141 (N.Y. Ct. of Oyer and Terminer 1820)
concerned an arrest for “dangerous wounding,” which the common
law authorities treated as a category separate from felony arrests.
See, ¢.g., Dalton, Country Justice ( 1742 ed.), p. 299 [quoted at p. 30,
2d fn., supra].
* “Historical Note,” N.Y. Code of Criminal Procedure (Me-
Kinney’s ed. 1958), pp. 341, 347, which refers to the report made by
Commissioners Field, Loomis and Graham in 1849, proposing a code
of criminal procedure.
** See American Law Institute, Code of Criminal Procedure
(1930), Commentary at 254-55. The New York Code of Criminal
Procedure as enacted in 1881 provided for arrest and forcible entry
without a warrant “when the person arrested has committed a felony”
(Sec. 177(2)) and “when a felony has in fact been committed, and
he [a peace officer] has reasonable cause for believing the person
to be arrested to have committed it.” (Sec. 177(3)). In 1958, the
Code was amended to permit a peace officer to arrest without a war-
rant upon probable cause “though it should afterward appear that
no felony has been committed, or, tf committed, that the person ar-
rested did not commit it” (Sec. 177(4))._ L. 1958, c. 707, Sec. 1.
See N.Y. Code of Criminal Procedure (McKinney's ed.), Pkt. Pt.,
p. 111.
47
on the subject had such a provision.* For some categories
of federal officers, acting in states which had a rule iit
mitting forcible entry without a warrant, Congress has
repeatedly adopted the rule by reference. See United
crates v. Watson, 423 U.S. at 420-421 and n.9. Other eate-
gories of federal officers, in the absence of federal statu-
tory provisions, have been left by Congress to be governed
by the law of the state where an arrest without warrant
takes place. See United States v. Watson, supra, 423 U.S.
at 420-21, n.8. |
The first direct attack on this authority eame in the
early part of the twentieth century. The Couri in Phelps
rejected the attack and took the authority to be ‘“‘settled.’’
Commonwealth v. Phelps, 209 Mass. 396, 95 N.E. 868, 873
(294i). This view was accepted for much of the rest of
this century. Major scholars such as Wilgus and Perkins
believed that peace officers had such authority.** The
a beh i Wie Law Institute, Model Code of Pre-Arraignment
hae sapis : . ). Appendix XI (collecting state statutes concerning
eae ry ). See also Blakey, The Rule of Announcement and Un-
awtul Entry, 112 U. Pa. L. Rev. 499 (1964), Appendix A (listing
30 states with statutes authorizing forcible entry without a warrat t)
See also United States v. Watson, supra, 423 U.S. at 418, n 6 ee
** Wilgus stated that “the officer, if necessary, may break doors i
arresting one who has committed a felony, or one who he has rea 7
able grounds to believe has committed a felony, whether a eas
has or has not been committed * * *,” Wilgus, Arrest Witl ag
Warrant, 22 Mich. L. Rev. 541, 803 (1924), | coe
Referring to forcible entry under a warrant, Wilgus wrote, “B
fore doors are broken, there must be a necessity for so doing om
notice of the authority and purpose to make the arrest must ie ave
and a demand and refusal of admission must be made unless this is
already understood, or the peril would be increased.” e 802),
Wilgus then stated that “much the same rules apply isha phase
(footnote continucd on next page)
; oe
48
American Law Institute in 1930, and again in 1975, wrote
the authority into its model legislation. ALI, Code of
Criminal Procedure (1930), Sees. 21, 28. ALI, Model
Code of Pre-Arraignment Procedure (1975), See. 120.6(1).*
As far as we aware, until this Court’s dictum in
Coolidge v. New Hampshire, 403 U.S. 433, 480 (1971), only
one jurisdiction considered the authority at issue here to
be unconstitutional. In the case which reached this con-
clusion, Accarino v. United States, 179 F.2d 456 (D.C. Cir.
1949), it was unnecessary for the court to decide the point
and the opinion misconstrued the common law history. In
any event, both before and after Accarino, this Court ac-
cepted (though without directly deciding) the validity of a
police officer’s authority to enter a dwelling without a
warrant in order to arrest for a felony. In Johnson v.
United States, 333 U.S. 10 (1948), Justice Jackson was
emphatic and eloquent about the need for a neutral magis-
trate to review probable cause before the police could con-
duct a search. 333 U.S. at 14-15. In that same opinion, he
stated that the officers could have entered the hotel room in
question without a warrant in order to make an arrest
are made without a warrant, provided the one making the arrest is
acting within his lawful right to arrest.” (p. 802).
Perkins wrote “As to breaking open doors or windows, assuming
this to be necessary to reach the place where the person to be arrested
is, or is reasonably supposed to be * * *, the common-law rule is
{that] * * * an officer seeking to make an arrest for any crime,
either in obedience to a warrant or under lawful authority to arrest
without a warrant, may break the doors or windows even of a dwell-
ing house.” Perkins, The Law of Arrest, 25 Iowa L. Rev. 201, 245
(1940).
* Under Section 120.6(3), entries during the nighttime, defined
as the hours between 10 p.m. and 7 a.m., are permissible only under
a warrant or when certain special circumstances are reasonably be-
lieved to be present.
49
‘“‘for a crime committed in the presence of the arresting
officer or for a felony of which he had reasonable cause to
believe defendant guilty.’’ 333 U.S. at 15 1ote
omitted). In Jones v. United States, 357 U.S. 493, .*)-500
(1958), the Court noted, without deciding, the * grave con-
stitutional question’’ concerning forcible nighttime entries
without a warrant but expressed no concern about daytime
entries. In Ker vy. California, 374 U.S. 23, 38 (1963), four
Justices adopted the rule stated by Wilgus that a dwelling
may be forcibly entered without a warrant after notice of
purpose and authority is given. Justice Harlan, con-
curring in the result, did not question this rule. And the
dissenters did not question the rule either. They con-
tended only that the officers had not adequately announced
their authority and purpose, see 374 U.S. at 47-50 (Bren-
nan, J., dissenting in part). In Sabbath v. United States,
391 U.S. 585, 588 (1968), the Court stated that the validity
of a forcible entry to arrest ‘‘without a warrant’’ is gov-
erned by the notice requirement set forth in the federal
statute concerning execution of search warrants.
00
B. The long-standing and widespread acceptance
of the constable’s authority, without a warrant,
to arrest a felon in his dwelling is based on
sound social policy.
Throughout our history, it has been recognized that
searching dwellings for things and arresting felons in
dwellings implicate very different policies and interests. In
the centuries before the ratification of the Fourth Amend-
ment, our English ancestors thought it unwise to compel a
constable to get an arrest warrant prior to arresting a felon
in his dwelling. The Fourth Amendment was intended to
reafirm those common law principles. Following that
amendment’s adoption, we have lived so satisfactorily with-
out an arrest warrant requirement that, until the past few
years, virtually no one suggested changing the traditional
law. The question presented here, therefore, is whether in
1979 this Court should reject Justice Holmes’ admonition
[‘*‘a page of history is worth a volume of logic’’, New York
Trust Co. v. Eisner, 256 U.S. 345, 349 (1921)], invent an
arrest warrant requirement, and impose it on the 50 states
and on the federal jurisdictions.
United States v. Watson, 423 U.S. 411 (1976), and
United States v. Santana, 427 U.S. 38 (1976), decided only
three years ago, go a long way toward answering that
question in the negative. In those cases, the Court declined
to require arrest warrants even though an arrest amounts
to a total loss of a person’s liberty. Appellants attempt
to dismiss these decisions as instances of blind adherence
to history. But Watson and Santana cannot be so easily
discarded. The Court deferred to history because it em-
bodied wisdom and experience as relevant in 1976 as in
d1
centuries past: The ‘‘balance struck by the common law,”’
423 U.S. at 421, was still a sensible accommodation among
the competing personal and community interests at stake
when officers arrest felons.
Of course, the cases now before the Court differ in one
respect from Watson and Santana. In Watson, the police
arrested the defendant in a restaurant. In Santana, after
seeing the defendant in the doorway of her home, the offi-
cers followed her inside and arrested her there. In Payton
and Riddick, the officers entered to make the arrest without
first seeing the defendant outside. The similarities among
the cases—in each, the police were arresting for a felony—
are much more important than any differences.
1. An arrest warrant requirement will severely
interfere with the most basic function of our
police—arresting the felon and bringing him
before the court to answer charges.
Law enforcement functions are varied, and the commu-
nity’s legitimate interests in these several functions differ
in intensity. For example, society may have a strong in-
terest in finding evidence helpful at a trial. That interest
pales, however, beside the law enforcement interests at
stake in Watson, Santana, and the cases now before the
Court: the need to catch criminais like Payton and Riddick
—both accused of armed felonies—as quickly as possible,
in order to bring them to court.
As much as in Watson and Santana, imposing an arrest
warrant requirement in these cases will interfere with this
most basic law enforcement function. The requirement will
52
effect many serious cases. It will pressure police to seek
warrants and make arrests too hurriedly. It will increase
the likelihood of arresting innocent people. By diverting
scarce resources, it will interfere with the police’s ability,
especially in complicated cases, to do the thorough investi-
gation necessary for the apprehension of the guilty person.
During the crucial hours before the arrest, it will penalize
the police for deliberate planning. It will, as a direct con-
sequence, lead to more injuries—to police, to defendants
and to bystanders.
In 1977, there were in New York City alone 115,121
felony arrests. New York Crry Potice Department
(‘r1ME Comparison Report 113 (1977). That year in the
United States there were over 17,000 arrests for murder,
25,000 arrests for forcible rape and 122,000 arrests for
robbery. F.B.I. Usirorm Crime Reports 180 (1977). We
do not know how many of these arrests were in dwellings.
However, the number of arrests in dwellings does not indi-
cate how many cases will be affected by an arrest warrant
requirement. The police do not know whether the felon
will be found in a dwelling or elsewhere. Consequently,
some police officers, exercising caution, may seek an arrest
warrant when they do not arrest the felon immediately
after the crime. Cases in which the police find the defend-
ant more than two hours after the crime comprise about
one-half of felony arrests in urban centers. Presment’s
ComMMIssion ON Law EnrorceMENT AND ADMINISTRATION OF
Justice Task Force Report: Science anp TECHNOLOGY
96 (1967).
Even if an arrest warrant requirement affects only those
cases in which arrests are ultimately made in the dwelling,
I SE por
53
those will certainly be the most serious cases. Arresting a
felon in a dwelling is dangerous. New York Strate Pouce
Manvav 81, 83 (3d ed. 1971) (hereinafter ‘*Pottce Man-
vAL’’). Police will not want f make such an arrest except
in grave matters and when absolutely necessary. Since the
Indiana Supreme Court adopted an arrest warrant require-
ment, there have been six reported cases in which that court
considered the warrantless arrest of a felon in a dwelling.
Three cases involved murder, one involved armed robbery,
and one involved kidnapping.” Sinee the Massachusetts
Supreme Judicial Court adopted such a requirement,
four reported cases in that court have dealt with war-
rantless arrests in residences. Two involved murders,
and two involved armed robberies.** Tt is not aecidental,
then, that the cases now before the Court involve arrests
for murder and armed robbery, and not for perjury or
embezzlement.
Investigations into serious cases like murder and armed
robbery come in an almost infinite variety. Some (like in
Payton) are fast-breaking—leading from one piece of in-
formation to the next and ultimately to the defendant.
Others (perhaps like in Riddick) are slower—filled with
_ * Pawloski vy. State, —— Ind. -——, 380 N.E. 2d 1230 (1978)
(murder) ; Crane v. State, ——— Ind. ——, 380 N.E. 2d 89 (1978)
(murder) ; Barnes v. State, —— Ind. ——, 378 N.E. 2d 839 (1978)
(armed robbery) ; Banks v. State, 265 Ind. 71, 351 N.E. 2d 4, cert.
denied, 429 U.S. 1077 (1977) (murder); Finch v. State, 264 Ind.
48, 338 N.E. 2d 629 (1975) (kidnapping) ; Ludlow v. State, 262 Ind.
266, 314 N.E. 2d 750 (1974) (narcotics).
** Commonwealth v. Boswell, Mass. ——, 372 N.E. 2d 237
(1978) (armed robbery) ; Commonwealth v. LeBlanc, —— Mass.
——, 367 N.E. 2d 846 (1977) (murder) : Commonwealth v. Walker.
—— Mass. , 350 'N.E. 2d 678, cert. déniéd, 429 U.S! 943 (1976)
(murder) ; Commonwealth v. Moran, Mass. ——-, 345 N.E. 2d
380 (1976) (armed robbery).
o+
false starts, winding alleys leading nowhere, periods when
no useful information is developed, and other periods when
information seems to flow in all at once. Sometimes infor-
mation comes from responsible citizens or victims of crime
(as in Riddick) ; sometimes from criminals (as in Payton),
alcoholics or drug addicts. Sometimes information comes
from documents; sometimes from ‘‘street talk.’? Some-
times the police may be led to useful information by
hunches; sometimes by scientific experiment. Sometimes
the police will canvass entire neighborhoods; sometimes a
witness will simply walk into the stationhouse.
An arrest warrant requirement will operate in this un-
certain world of the streets and not in the calm of the court-
room. Before such a requirement is established and im-
posed on the thousands of police departments throughout
the country, its operation should be seen from the perspec-
tive of the policeman on the street. It is this officer who will
have to shift the focus of his investigation to accommodate
any new requirement. We cannot predict how many inves-
tigations will be hampered or destroyed. But we believe the
number will be substantial. We further believe that the
Court will not be able to set guidelines which exclude from
the requirement those felony cases in which investigations
will be destroyed.
The officer on the street will have to take the new re-
quirement very seriously. If the Fourth Amendment com-
mands that he get an arrest warrant, and he fails to do so,
he may face tort suits, civil rights actions, or disciplinary
proceedings. He certainly will face the possibility that the
felon will be freed because of the suppression of important
evidence—the murder weapon, the suspect’s admissions
ay)
made upon arrest, or the testimony of a witness that he
identified the suspect at a post-arrest lineup. See Crews
v. United States, 389 A. 2d 277 (D.C.) (en bane), cert.
granted, —— U.S. —— (February 21, 1979). In some
places, the officer who fails to obtain a warrant will risk a
ruling that the court has no personal jurisdiction to try the
defendant. Laasch vy. State, 84 Wis. 2d 587, 267 N.W. 2d
278 (1978).
These risks will lead police officers to get the war-
rant as soon as possible. If he does not, and unforeseen
circumstances then require an immediate arrest, the officer
risks a ruling, years later in the calm of a courtroom, that
the new circumstances will be said to have been ‘‘foresee-
able’’ (or indeed ‘‘created’’ by the officer himself). As a
result, the evidence will be suppressed because the officer
should have obtained a warrant sooner. See United States
v. Santana, 427 U.S. at 48 (Marshall, J., dissenting) ; United
States v. Watson, 423 U.S. at 450 (Marshall, J., dissent-
ing).
The rush to get the arrest warrant will lead to sig-
nificant problems. The police will be required ‘‘to guess
at their peril the precise moment at which they have prob-
able cause to arrest a suspect.’’ Hoffa v. United States,
385 U.S. 293, 310 (1966). In some cases, the police will
make a bad guess and will seek a warrant too soon—that is,
before they have probable cause. If the magistrate refuses
to sign the warrant, then the police will have taken time
from their investigation. If the magistrate, deferring to
the public need to seize possible felons, does sign, then any
evidence discovered incident to the arrest will be sup-
pressed.
56
In other cases the police will have probable cause when
they seek the warrant. But having probable cause does not
necessarily mean that the officers have focused on the guilty
person. If the police are pressured to obtain a warrant too
quickly, the likelihood of their arresting innocent people
will increase. The trauma for the innocent person, where-
ever arrested, cannot be quantified. In addition, the issu-
ance of the arrest warrant will have interfered with the
police’s ability to find the right person. At a time when
they could, and should, be investigating further, they wili
have to shift their focus to obeying the command of the
warrant—that is, that they find and arrest the person
named, book him and bring him to court. All this time,
the trail to the real culprit will be getting cold.
Even if, based on probable cause, the police obtain a
warrant for the right person, and even if the police con-
tinue to gather evidence in order to prove his guilt
at trial, the issuance of the warrant will seriously interfere
with the on-going investigation. Every new piece of infor-
mation will have to be brought to the magistrate’s attention.
If the police develop facts which cast doubt on whether the
person named in the warrant is guilty, they would be
obligated, even if they still believe there is probable cause,
to inform the issuing magistrate of the new information.
If the police develop facts which strengthen their view
that they have focused on the right suspect, again, they will
have to amend their prior affidavits. The validity of the
arrest warrant will be judged solely on the basis of the evi-
dence before the issuing magistrate. Whitely v. Warden,
401 U.S. 560 (1971). Consequently, the police and the
prosecutor will want the magistrate to have before him
aan
:
57
every piece of evidence which supports a finding of prob-
able cause.
In any serious investigation, numerous amendments
of the affidavits will be needed. Witnesses may recant prior
statements. The police may learn that an informant was
less reliable than first believed. A victim who picked a per-
son from a lineup may subsequently express some doubt.
The officers may learn, as they did in Payton, that their wit-
ness gave the wrong name for the defendant.* On the
other hand, the officers may (as they did in Payton) locate
a second witness who corroborates the information given
by the first. They may uncover a second eyewitness.
They may obtain the results of fingerprint or handwrit-
ing or ballistics analysis, and these results may strengthen
their belief that the person named is in fact guilty. All
of these facts, and thousands more that could be imagined,
will have to be brought to the magistrate who will, in
effect, become the supervisor of the investigation.
Thus, a warrant rule will require a shuttle service be-
tween the investigating officers and the courts. Each trip
will take hours and may consume a major part of an offi-
cer’s tour of duty. For exemple, the Second Circuit Court of
Appeals recently noted that, in the Southern District of
New York, a highly urbanized area in which the courthouse
is relatively accessible, federal agents must spend between
four and five hours to obtain an arrest warrant. United
States v. Campbell, 581 F. 2d 22, 26-27 n.7 (2d Cir. 1978).
* Were a person arrested on a warrant which did not “truly
name” him, the warrant would be invalid and the evidence resulti
from the arrest would be suppressed. See West v. Cabell, 153 U.S.
78, 85-86 (1894) ; United States v. Jarvis, 560 F. 2d 494, 497 (2d
Cir. 1977), cert. denied, 435 U.S. 934 (1978).
58
One court in California estimated that the time consumed
in obtaining an arrest warrant is ‘‘between six and eight
hours.’’ James v. Superior Court of Tulare County, ——-
Cal. App. 3d , 151 Cal. Rptr. 270, 272, 275 (1978).
In other places, it would undoubtedly take longer. See
Pawloski v. State, Ind. ——, 380 N.E. 2d at 1233 (the
Indiana Supreme Court assumed that arrest warrants are
unobtainable on weekends).
An arrest warrant requirement will divert scarce police
resources from the most important phase of the police in-
vestigation. At a time when the police should be focusing
their attention on questions such as ‘‘ Do we have the right
person?’’ and ‘‘ Do we know where to find him?’’, the police
will be forced to consider different questions. Is it time to
get a warrant? Is it necessary te bring this new piece of
information to the judge? Is a prosecutor available to put
the information together in an understandable form?
Where are the typists? Is a judge available? Is a court
reporter available? How long will it take to drive to the
courthouse? Will the judge see us immediately? How long
will the appearance before him take? See People v. Burrill,
391 Mich. 124, 214 N.W. 2d 823 (1974) (arrest warrant
invalidated because the issuing magistrate did not suffi-
ciently question the witnesses in support of the warrant).
And perhaps most importantly, what portion of the in-
vestigation should be postponed while some officers spend
hours obtaining and updating the warrant? If society
wants the right person to be found and brought to justice,
it cannot obstruct the pursuit of the felon with an obstacle
as substantial as the arrest warrant requirement.
ov
Appellants suggest that some of these difficulties would
be minimized by exeusing the police from obtaining a war-
rant until they actually decide to make an arrest in a
dwelling. Appellants’ Brief at 37. This suggested rule
would create equally substantial problems, both for the
courts and the police.
The first question would be, whose decision is deter-
minative, that of the investigating officer, his team, their
supervisor, or the district attorney? Then a reviewing
court would have to determine exactly when this person
or group of people made the decision. This determination
would rarely be easy. Investigations are fluid. Bells do
not ring when the evidence in the police’s possession sud-
denly amounts to probable cause. As the officers investi-
gate, the belief may grow, then solidify, that the defendant
is the right person and should be arrested in his residence.
Pinpointing exactly when that belief solidified will be large-
ly dependent on the officer’s testimony about his own state
of mind and his reconstruction of the events. The
difficulties of basing a decision on testimony like this will
likely lead tne courts to change the question at issue. The
litigation will focus not on when the officer in fact decided
to arrest in a dwelling but rather on when a reasonable
officer would have made that decision. That question often
translates into, when does a reviewing court, using hind-
sight, think that the decision to arrest in a dwelling should
have been made? |
If we are correct, then the officer on the street will be
forced to keep one eye on his investigation and the other
on what a court, looking back on events, will believe to be
the reasonable time to make the arrest. Officers will he en-
60
couraged to arrest as soon as posible because, if they wait,
they will risk a subsequent ruling that the decision to arrest
could have been made sooner—when they had time to
obtain a warrant.
The Payton case itself is a good example of the dangers
of pressuring the police to make arrests too soon. Appellant
suggests that the officers could have attempted to arrest
Payton in his apartment on the afternoon of January 14
(when Leggett pointed out Payton’s building) and should
have sought an arrest warrant then. Appellants’ Brief at
7,62. It would, however, have been irresponsible and dan-
gerous to make an arrest then. At that time, the police
knew neither Payton’s correct name nor what he looked
like. They did not know whether he was going to be in his
apartment. (In fact, after the murder, Payton told Leg-
gett he was going ‘‘some-where.’’ See note, pp. 9-10, su-
pra.) Also, the police knew nothing about the building or
the apartment, for example, whether other people lived
with Payton or whether there were escape routes that
needed covering. Finally, they hed not had time to con-
sider whether there were other, safer places where Payton
could be arrested.
Of course, there comes a point in any investigation at
which it ean be determined with certainty that the police
intended to make an arrest in a dwelling. In Payton, that
time was the morning of January 15, when the officers came
to Payton’s door, saw a light shining from inside, heard
a radio, knocked, called out, and received no answer. <Ac-
cording to the rule appellants suggest, the officers should
have then, as at many earlier points in the investigation,
ceased their attivities for the hours needed to obtain an
61
arrest warrant. Appellants’ Brief at 62-63. Presumably,
for this entire period, they should have laid siege to
the apartment. Under appellants’ theory, the dangers of
delay in these cireumstances—dangers of detection, escape
and armed confrontation—are to be ignored. See €.9.,
United States v. Campbell, 581 F. 2d at 26-27; Brooks v.
Umted States, 367 A. 2d 1297, 1303 (D.C. 1976); United
States v. Shye, 492 F.2d 886, 892 (6th Gir. 1974).
The rush to the courthouse that would result from a
warrant requirement conflicts with fundamental concepts
of safety and effective law enforcement. ‘‘An armed sub-
ject threatens the safety, not only of the arresting officer
but of any nearby man, womay, or child.’’ Potrce MANUAL
at 81. The unplanned and ill-considered arrest of armed
killers such as Payton has results—possible injuries to
officers, bystanders, and defendants. For this reason,
policemen should be encouraged to ‘‘take as much time as
is reasonably necessary to plan arrests.’’ Id. at 80. The
police also should be encouraged to take the time to plan
investigations. With planning, the likelihood of catching
the right person increases. The basic problem with the
arrest warrant requirement urged by appellants is that, if
the police take any deliberate step other than obtaining
an arrest warrant, they assume the risk that a subsequent
warrantless arrest will be deemed a violation of the Fourth
Amendment.
The rule in California, which adopted an arrest warrant
requirement in 1976, appears to be identical to that asserted
by appellants—-that is, any reflective police conduct, even
tracking down the killer or planning a safe arrest, proves
that a warrant was obtainable. For example, in People v.
62
Ellers, 82 Cal. App. 3d 809, 147 Cal. Rptr. 433 (1978, hear-
ing granted), an undercover agent purchased heroin in
an apartment being used for continuing heroin transac-
tions. The agent immediately reported the completion of
the sale to an officer waiting outside the residence. That
officer then radioed other policemen who, after mteting in
a parking lot, spent ten minutes planning the arrest of the
heroin dealer. The court held that the officers’ brief delib-
eration conclusively proved that there was no exigency to
excuse them from obtaining an arrest warrant. In Johnny
V.v. People, 85 Cal. App. 3d 120, 149 Cal. Rptr. 180 (1978),
the police were investigating a particularly brutal murder.
In the seven hectic hours after the killing, the police in-
vestigated without interruption and ultimately traced the
killer to a residence, where they were admitted by the
owner of the residence. The police were led to a bedroom
which was locked from the inside. The officers knocked,
and there was no response. The owner of the residence
asked his son (who was inside the room with the suspect)
to open the door, which he did, and the officers entered and
arrested the suspect. In subsequent litigation, this arrest
was found to be unlawful. The reviewing court thought
it obvious that the police could have obtained an arrest
warrant. Jd. at 185-86. Therefore, the court suppressed
evidence seized incident to the arrest. Implicit in the
court’s conclusion is reasoning identical to appellants’:
The ‘‘decision to arrest in the home is deliberate’’ and, if
the officers had time to proceed to the residence, ‘‘there is
no reason why’’ they could not have ob.iined a warrant.
Appellants’ Brief at 37.
Indeed, the warrant requirement esporsed by appellants
is so inflexible that police risk suppression if, rather than
ited we
eT.
63
obtaining a warrant, they eat, rest or go to sleep. For
example, in Payton, the police were investigating continu-
ously on January 12, 13 and 14. They did not go to Pay-
ton’s apartment until 7:30 a.m. on January 15. If the
officers were resting or eating during the night of January
14 or morning of January 15, the entry to arrest would,
under appellants’ rule, be unlawful.
Respecting the officers’ need to rest and eat has nothing
to do with deferring to their personal comfort. At some
point, the officers knew that they might go to the door of a
suspect believed to be armed with a high-powered rifle.
They knew that they might have to knock and eall out.
Perhaps the answer would have been a bullet through the
door or, if the door was forced open, a bullet through the
first officer into the room. The most minimal respect for
lives requires a recognition that the officers arresting the
armed felon will best be able to protect themselves (and
others) if alert. Yet, under the rule espoused by appel-
lants, the officer who dares to rest prior to risking his life
runs the risk of a court finding that, for example, with a
few hours less sleep, he would have had time to obtain an
arrest warrant.
The burdens created by an arrest warrant requirement
are onerous. Accordingly, several courts other than the
New York Court of Appeals have declined to create one.”
Other courts have adopted the sequirement but without ana-
* See United States v. Williams, 573 F.2d 348, 350 (5th Cir.
1978) ; State v. Linkletter, 345 So.2d 452, 456 (La.), cert. denied.
434 U.S. 1016 (1978) ; State v. Perez, 277 So.2d 778, 782-83 (Fla.),
cert. denied, 414 U.S. 1064 (1973) ; State v. Luellen, 17 Wash. App.
91, 562 P.2d 253 (1977).
64
lyzing the burdens on law enforcement.* Two courts which
had adopted such a requirement are now beginning to doubt
its validity and wisdom. The Massachusetts Supreme Judi-
cial Court has suggested that it erred when, in 1975, it aban-
doned the common law rule authorizing warrantless arrests
of felons. Commonwealth v. Boswell, Mass. , 312
N.E. 2d at 241; Commonwealth v. LeBlanc, Mass.
, 367 N.E. 2d at 850, n. 2. In December 1978, one panel
of judges in the Ninth Cireuit Court of Appeals simply
ignored a decision four months earlier which had adopted
a warrant requirement. United States v. Johnson, ——
F.2d (9th Cir., December 19, 1978) ; United States v.
Prescott, 581 F.2d 1343 (9th Cir: 1978). Other courts,
which have not yet expressly stated their doubts about the
warrant requirement they created, have nonetheless ex-
hibited their doubts by applying so many exceptions that,
* See Salvador v. United States, 505 F.2d 1348, 1351-52 (8th
Cir. 1974) ; United States v. Shye, 492 F.2d 886, 891 (6th Cir. 1974) ;
United States v. Shye, 473 F.2d 1061, 1067, note 1 (6th Cir. 1973) ;
Vance v. North Carolina, 432 F.2d 984, 990-91 (4th Cir. 1970) ;
State v. Max, 263 N.W.2d 685, 687 (S.D. 1978) ; Dent v. State, 33
Md. App. 547, 365 A.2d 57, 59-60 (1976).
Other courts, many in light of Coolidge v. New Hampshire, 403
U.S. 444 (1971), have reserved the issue. People v. Wolgemuth, 69
[ll.2d 154, 370 N.E.2d 1067, 1070 (1977), reversing, 43 Ill. App. 335,
356 N.E.2d 1139 (1976) (the lower court had adopted an arrest war-
rant requirement) ; State v. Lashley, 306 Minn. 224, 236 N.W.2d 604
(1975), cert. denied, 429 U.S. 1077 (1977) ; State v. Girard, 276 Or.
511, 555 P.2d 445, 447 (1976) (en banc); People v. Burrill, 391
Mich. 124, 214 N.W.2d 823, 829, note 18 (1974).
In Colorado, the law is unclear. See People v. Robertson, —
Colo. App. . 577 P.2d 314, 316, note 1 (1978) ; People v. Hoin-
ville, Colo. . 553 P.2d 777, 780 (1977) (en banc) ; People
v. Moreno, 176 Colo. 488, 491 P.2d 575, 580 (1971); Colo. Rev.
Stat. former $16-3-102(1)(c) (1973). °
65
in spite of the requirement, many warrantless arrests in
dwellings are validated.*
We recognize that in some eases an arrest warrant re-
quirement will interfere with basie police functions less
severely than in others. It could be argued that the Court
should distinguish between types of cases by adopting a
warrant requirement only in cases where it would not inter-
fere with the investigation. This attempt has been made—
without, we believe, any success.
For example, in one case, the District of Columbia Cir-
cuit Court of Appeals said that a court should consider
seven factors in analyzing the permissibility of a warrant-
* For example, warrantless entries to arrest were upheld where
the courts found :
(1) aconsent-to-enter apparently given at the point of an officer's
gun, United States v. Scott, 578 F.2d 1186, 1188 (6th Cir. 1978) ;
(2) “exigent circumstances” excusing the failure to obtain an
arrest warrant, even though the officers actually had obtained a war-
rant (which the court ruled defective), Vance v. North Carolina, 432
F.2d 984, 990-91 (4th Cir. 1970) ;
(3) the “urgent” need to act even though the urgency was cre-
ated by the police, United States v. Kulscar, 586 F.2d 1283, 1285,
1287 (8th Cir. 1978) and United States v. Shye, 492 F.2d 886, 888
(6th Cir. 1974) (urgency created by visible police presence where,
rather than obtain a warrant, six officers remained outside an apart-
ment with the expectation that the lessee would come by and consent
to their entry) ;
(4) exigency where, between the development of probable cause
and the arrest, there were four hours to obtain a warrant, United
States v. Campbell, 581 F.2d 22, 24 (2nd Cir. 1978) ;
(5) “dangers” of flight and destruction of evidence where, aside
from the fact that there had been a violent felony, there was con-
crete evidence of neither, Pawloski v. State, Ind. , 380
N.E.2d 1230, 1233 (1978) (murder), Brooks v. United States, 367
A.2d 1297, 1303 (1976) (rape), and Stuck v. State, 255 Ind. 350,
. 264 N.E.2d 611, 615 (1970) (murder).
66
less arrest. See Dorman v. United States, 435 F. 2d 385,
392-93 (D.C. Cir. 1970) (en bane). The problem with a set
of guidelines such as those in Dorman is that, except for ex-
treme situations, they offer little practical guidance to the
police. Although the jurisdictions which have adopted an
arrest warrant requirement generally make exceptions
based on guidelines similar to that in Dorman, the decisions
are hopelessly contradictory regarding, inter alia, the defi-
nition of exigency, the reasonableness of the policeman’s
fear that the felon will escape, the possibilities of obtaining
a warrant, and whether or not an entry to arrest was in fact
consensual.* As predicted in Watson, the arrest warrant
requirement has encumbered the criminal process with end-
less lawyering. United States v. Watson, 423 U.S. at 423-24.
If the Court adopts such a requirement, one could expect
the confusion to spread to all fifty states.
Such a result will not be tolerable. A police officer must
know in advance, and quite clearly, when he does not need
a warrant to arrest a felon in his dwelling. There must be
categorical rules, not vague ‘‘guidelines’’ that make sense,
* See, e.g., United States v. Campbell, 581 F. 2d 22, 26-27 (2d
Cir. 1978) ; James v. Superior Court of Tulare County, —— Cal.
App. 3d ——, 151 Cal. Rptr. 270, 273-75 (1978) ; People v. Peter-
son, 85 Cal. App. 3d 163, 149 Cal. Rptr. 198, 203 (1978) ; Johnny V.
v. People, 85 Cal. App. 3d 120, 149 Cal. Rptr. 180, 183-86 (1978) ;
Pawloski v. State, —— Ind. ——, 380 N.E. 2d 1230, 1233 (1978) ;
In re Scott K., 75 Cal. App. 3d 162, 142 Cal. Rptr. 61, 63 (1977,
hearing granted); In re Reginald B., 71 Cal. App. 3d 398, 139 Cal.
Rptr. 465 (1977) ; People v. Superior Ct., 68 Cal. App. 3d 780, 137
Cal. Rptr. 586 (1977); Brooks v. United States, 367 A. 2d 1297,
1302-03 (D.C. 1976); Banks v. State, 265 Ind. 71, 351 N.E. 2d
4, 9, cert. denied, 429 U.S. 1077 (1977) ; Commonwealth v. Walker,
— Mass. , 350 N.E. 2d 678, 683, cert. denied, 429 U.S. 943
(1976) ; Commonwealth v. Moran, Mass. , 345 N.E. 2d 380
(1976) ; Finch v. State, 264 Ind. 48, 338 N.E. 2d 629, 631 (1975).
67
if at all, only in the calm and safety of the courtroom. The
Court has already recognized the need for categorical
rules in similar circumstances. United States v. Robinson,
414 U.S. 218 (1973); see LaFave, ‘‘Case-by-Case Adjudica-
tion’’ versus ‘‘Standardized Procedures:’’ The Robinson
Dilemma, 1974 Sup. Cr. Rev. 127. In fact, in this regakd,
Watson is indistinguishable from this case. In some cir-
cumstances, the police might be hampered by having to
obtain a warrant to effect an arrest in public; in others,
they would not be hampered. To distinguish between these
situations, this Court was urged to adopt a warrant prefer-
ence qualified by various exceptions (Respondent’s Brief
in United States v. Watson, supra, at 6-8). Nevertheless,
the Court recognized the severe limits of case-by-case litiga-
tion—that is, that ambiguous rules make it difficult, if not
impossible, for the officer to determine beforehand whether
his conduct will be proper. The Court held, categorically,
that warrants would not be required. As much as in Wat-
son, the same categorical rule is needed here.
2. Because searching a dwelling involves very differ-
ent interests than arresting a felon there, a war-
rant requirement—necessary in the context of
searches—is neither necessary nor advisable in
the context of arrests.
Against the weight of common law history, the history
of the Fourth Amendment, the legislative approval and
judicial acceptance of arrests in dwellings without arrest
warrants, the community’s overwhelming interest in cap-
turing felons, and the serious burdens a warrant rule
would impose on law enforcement authorities, appellants
offer only an argument based on the false ‘‘logic’’ of
68
‘‘symmetry.’’ Officers ordinarily need a warrant to
enter a dwelling to seize things. Therefore, the argument
runs, they must also need a warrant to enter a dwelling to
seize a person. This argument ignores the fact that, as
our predecessors realized, searches and arrests, no matter
where effected, involve different interests and social pol-
icies.
Certainly, arresting someone in his home amounts to a
serious intrusion. But the major part of that intrusion
derives from the fact of arrest itself. In a fairly large
number of cases—for example, Riddick’s—the entry may be
relatively inoffensive: A simple knock leads the suspect or
some other person to open the door, at which time the sus-
pect appears in the officers’ view. See, e.g., Commonwealth
v. Boswell, ——- Mass. ——, 372 N.E. 2d at 241 (1978);
see also United States v. Santana, 427 U.S. at 42. An
arrest, however, regardless of where it is effected, con-
stitutes virtually a total loss of the arrested person’s liberty
and privacy. It subjects him to detention in hostile sur-
roundings, indignities (like being searched, handcuffed and
fingerprinted), and damage to reputation and future job
prospects. It may also expose him to physical injury,
loss of present employment or schooling, and impairment
of ties with family and friends. See generally Gerstein
v. Pugh, 420 U.S. 103, 114 (1975); Aut, MopeL Cope or
Pre-ARRAIGNMENT Procepure, Commentary to §120.1 at
290-91 (1975) (hereinafter ‘‘Prr-ArraicNMEentT CopeE’’).
Nonetheless, this Court has already held that no warrant is
necessary to unleash the dire consequences set in motion by
an arrest. United States v. Watson, supra; United States
v. Santana, supra.
MMI
69
According to appellants, the fact that the arrest takes
place not in public but in a dwelling adds to the suspect’s
loss of liberty and privacy even though an arrest inside
is screened from the prying eyes of the world. It is this
claimed additional ‘‘loss’’ that makes the arrest within
the dwelling just the same as the search of a dwelling and
justifies the imposition of a warrant requirement. This
argument misconceives (1) the nature of a search within
a dwelling, (2) the nature of an arrest in the dwelling, and
(3) the effectiveness or usefulness of a warrant in protect-
ing the different interests involved.
Evidence of crime may be found anywhere and in almost
anyone’s possession. As our forefathers well understood,
the power to search for evidence subjects every citizen,
no matter whether law-abiding or not, to the intrusive
power of the police. See, e.g., Zurcher v. Stanford Daily,
436 U.S. 547 (1978); Bumper v. North Carolina, 391 U.S.
043 (1968). This power is most grave and subject to
greatest abuse when the things to be seized may be found
in a person’s home. The police may have to rummage
through the whole house, exploring every nook and cranny,
before they find the object of their search. They may
spend houf€ opening closets, poking through drawers, pry-
ing up carpets, ripping upholstery. See, e.g., Entick v.
Carrington, 19 St. Tr. 1029 (1765); Mincey v. Arizona,
— U.S. ——, 57 L.Ed. 2d 290, 298 (1978). The smaller
and more fungible the items sought, the longer and more
intensive the search that is need to insure that all of the
articles have been uncovered. And when the officers are
hunting for documents, they can open file cabinets and desk
drawers and read through masses of personal papers until
70
they find the particular files or records in question. F'i-
nally, the police may leave with things of particular value,
financial or personal, to the owner.
For these reasons, the search warrant requirement is
essential. A search warrant limits the scope of the of-
ficers’ quest by requiring that the objects of the search
be particularly described. Coolidge v. New Hampshire, 403
U.S. 443, 467 (1971) (plurality opinion). See, e.g., Mincey
v. Arizona, supra; Andresen v. Maryland, 427 U.S. 463
(1976). A search warrant also informs the occupant of the
purpose and bounds of the officers’ mission and assures him
that their objective is lawful. See Camara v. Municipal
Court, 387 U.S. 523, 532 (1967). Finally, a search warrant
provides for the prompt return of the property to the
court’s control, so that issues regarding right of possession
or use in evidence can be determined as soon as possible.
See, e.g., N.Y. Crim. Proc. Law §§690.45(7), 690.50(5) (Me-
Kinney 1971). See generally Pre-ArraiGNMENT CoDE
§220.4(2) and Commentary at 516. Ordinarily, no such
safeguard governs the disposition of items seized in the
course of a warrantless search. Jd., Commentary on Article
280, at 555-56.
The authority to arrest a felon in his dwelling involves
very different interests. Inherent in this authority is its
own limitation. Police officers may not enter a suspect’s
dwelling unless they have probable cause to believe he has
committed a felony and is inside. See, e.g., N.Y. Crim.
Proc. Law §§140.10(1)(b), 140.15(4) (McKinney 1971) ;
Pre-ArraiGnmMent Cope §§120.1(1) (a), 120.6(1). Many few-
er people are subject to this power than to the power to
/
a
71
search; and those who are subject to the arrest power are
much less likely to be law-abiding citizens.
In addition, before the officer enters a dwelling he must
give the suspect the right to surrender peaceably and thus
avoid a trauma associated with the power to arrest inside
a dwelling—a forcible entry. Only if he is denied admis-
sion after stating his authority and purpose can he pro-
ceed to ‘‘break’’ the door. See generally Sabbath v. United
States, 391 U.S. 585 (1968) ; Ker v. California, 374 U.S. 23,
37-41, 46-59 (1963) (plurality opinion and opinion by Bren-
nan, J.) ; Miller v. United States, 357 U.S. 301 (1958) ; N.Y.
Cope Crim. Proc. §178 (McKinney 1958); N.Y. Crim.
Proc. Law §§120.80(4), 140.15(4) (McKinney 1971). An
arrest warrant would neither enhance nor enforce the pro-
tections of the ‘‘knock and announce’? laws.
If the officers must force their way in to make the arrest,
again, an arrest warrant would be of very limited utility.
Unlike when the police enter to search, a warrant would
not be necessary to define the scope of their mission, which
is quite clear and quite limited: to arrest a particular
person. Nor, when officers make an arrest in a dwelling
do they need a warrant as a form of credentials. They are
engaging in their best accepted, most basic law enforce-
ment task; and the suspect will usually have ‘‘every reason
to expect the [policeman’s] knock on the door.’’? Vance v.
North Carolina, 432 F.2d 984, 991 (4th Cir. 1970).
True, in some cases, as appellants mention, the arrest
might involve a cursory glance of personal items, the pres-
ence of persons other than the suspect, or looking around
for the suspect himself. But the officers will have little in-
72
terest in prolonging their stay or their search beyond what
is necessary. Self-interest dictates that the police leave
as quickly as possible. Arresting an-armed felon in his
home is dangerous since the suspect is on familiar ‘‘turf.’’
Therefore, as the New York State Police Manual instructs,
the suspect ‘‘should be promptly removed.’’ Po ice
Manvat at 83. If, in any particular case, the police search
beyond what is necessary to accomplish their goal, what-
ever they find will be suppressed. See Vale v. Louisiana,
399 U.S. 80 (1970); Chimel v. California, 395 U.S. 752
(1969).
Lastly, and once again unlike when there is a search for
evidence, when police officers arrest a felon in his dwell-
ing there is no need for a warrant in order to ensure
a ‘‘return.’’ When arrested with or without a warrant,
the suspected felon must be brought before a_ court
promptly. See, e.g., N.Y. Crm. Proc. Law §140.20(1)
(McKinney 1971). See generally Gerstein v. Pugh, supra.
The judicial system then mobilizes so that the deprivation
of liberty may be tested.
The arrest warrant, in its sphere, simply does not serve
the same protective function as does the search warrant
in its. Indeed, in many respects an arrest warrant require-
ment will limit protections already afforded suspects ar-
rested in their homes. For example, an arrest warrant
requirement will strip those falsely arrested of their his-
toric right to damages, because the mere existence of an
arrest warrant—even if not based on probable cause—
will ordinarily shield the officer from liability. W. Prosser,
Law or Torts §25, at 127-28 (4th ed. 1971); Aut, Restate-
MENT (Seconp) or Torve $122 (1965). See, e.g., Stine v.
4
? .
73
Shuttle, 134 Ind. App. 67, 186 N.E.2d 168 (1962) (en bane) ;
Rush v. Buckley, 100 Me. 322, 61 A. 774 (1905); Pallett v.
Thompkins, 10 Wash.2d 697, 118 P.2d 190 (1941). And, in
spite of what appellants may say about the theoretical de-
fenses available to police officers, Appellants’ Brief at 54
n.37, plaintiffs in fact recover substantial awards, even
when the officer-defendants did not engage in egregious
conduct. See, e.g., Broughton v. State, 37 N.Y.2d 451, 335
N.E,2d 310, 373 N.Y.S.2d 87, cert. denied, 423 U.S. 929
(1975) (two cases: one award was $5,000; the other was
unspecified) ; Smith v. County of Nassau, 34 N.Y.2d 18, 311
N.E.2d 489, 355 N.Y.S.2d 349 (1974) (damages of $15,000) ;
Velovic v. City of New York, N.Y.L.J., Feb. 9, 1979, p. 12,
col. 1 (N.Y. Civ. Ct.) ($150,000 jury award conditionally
reduced to $22,000). See also St. Louis Globe-Democrat,
Weekend ed., Sept. 30-Oct. 1, 1978, p. 17A, col. 1 (family
awarded $45,000 in false arrest case). A recent study by
the International Association of Chiefs of Police, which
surveyed litigation against policemen over a period of five
years, showed that (1) false arrest suits constituted over
40% (the largest category) of the steadily rising number
of actions against officers, (2) in a substantial proportion of
all the actions brought against officers, the plaintiff received
some kind of satisfaction either through settlement or, less
frequently, by victory in court, and (3) in the suits that were
tried and won by the plaintiff, the mean verdict was some-
what more than $3,000.*
In some jurisdictions, a warrant requirement may result
in longer detention of people who have been taken into cus-
* See IACP, Survey or Pottce Misconpuct LITIGATION 1967-
71, at 5-7 (1974).
) |
74
tody but who are not guilty. For example, under present
New York procedures, the arresting officer or his superiors
may review the evidence, listen to whatever the defendant
wants to say and evaluate his stoyy. Then the officers can
decide that no probable cause exists to believe that the de-
fendant committed the crime and, consequently, liberate
him at the stationhouse. N.Y. Crim. Proc. Law §140.20(4)
(McKinney 1971). Similarly, when the suspect is brought
to the prosecutor who will prepare the case for arraign-
ment, that prosecutor may in his discretion order the
release of the arrested party. These options will be fore-
closed under an arrest warrant procedure, since a warrant
is not simply a license to arrest; it is a command to take a
person into custody and produce him before the court. See
N.Y. Crim. Proc. Law §120.10(1) (McKinney 1971). See
also Comment, The Legal Efficacy of Probable Cause Com-
plaints in Light of People v. Ramey, 13 Cautr. Western L.
Rev. 456, 471 (1977) (same problems under California law).
Lastly, and ironically, an arrest warrant requirement
will limit the ability to test the one thing the requirement
is supposed to ensure—the existence of probable cause.
A person arrested without a warrant may challenge the
existence of probable cause in a hearing on a motion
to suppress evidence. See, e.g., N.Y. Crim. Proc. Law
§710.60(4) (McKinney Supp. 1978). At that hearing, the
basis for the officer’s conclusion of probable cause can
be explored; the officer’s credibility will often be an im-
portant factor in the judge’s decision. If the defendant
succeeds in his challenge he will get a tremendous bene-
fit—the suppression of probative evidence against him.
Theoretically, the suppression will also serve to deter
future entries without probable cause. By contrast, one
=
(Jv
who is arrested upon a warrant will find that his ability to
question the officer and attack his credibility is severely
limited. Except in the rare instance when the defendant
can allege and prove that the affiant made a reckless or
intentional misstatement, vital to the issuance of the war-
rant, the attack on the existence of probable cause will
be limited to the face of the affidavits. Franks v. Delaware,
— US. ,o7 L.Kd. 2d 667 (1978).
An arrest warrant requirement, we believe, has only one
thing in its favor. In some cases a magistrate might refuse
to sign the warrant when the police have not shown prob-
able cause. The police would therefore not arrest the
suspect in a dwelling at that time. Even here, though, the
warrant requirement will be a very imperfect tool. Forced
to make quick determinations, in ex parte proceedings,
overburdened magistrates sometimes issue even search
warrants routinely ‘‘without serious consideration of
whether probable cause exists.’?’ LaFave, Warrantless
Searches and the Supreme Court: Further Ventures Into |
the ““Quagmire,’’ 8 Crim. L. Buu. 9, 27 (1972) (hereinafter
‘LaFave, Warrantless Searches’’). he reported cases,
not surprisingly, document many instances of judicial error
in approving search warrants. See, e.g., Spinelli v. United
States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S.
108 (1964); State v. McMillin, 206 Kan. 3, 476 P.2d 612
(1970) (warrant invalid; search upheld on other grounds) ;
Application of Gray, 155 Mont. 510, 473 P.2d 532 (1970).
When magistrates are asked to pass upon arrest warrants,
limitations on their ability to provide an effective screen
will be even greater. See generally LaFave, Warrantless
Searches at 27. There will be thousands of such applica-
76
tions; and especially when serious crimes are involved,
magistrates may respond to the strong community interest
in apprehending dangerous felons by ‘‘rubber-stamping”’
the applications. The pressure arising from knowledge
that capture of a murderer or robber, possibly armed, might
depend on the warrant’s prompt issuance will frequently
prove to be irresistible.
To summarize: In most respects an arrest warrant re-
quirement is not needed to protect the personal interests
at stake when an officer arrests a felon in his dwelling. In
other respects, the requirement will actually reduce pro-
tections. In the one way that the requirement might do
some good, it will be a very imperfect device. On the other
hand, an arrest warrant requirement would place an enor-
mous and, we believe, unacceptable burden on the police’s
ability, quickly and safely, to catch dangerous felons. Even
if the Court were being asked to rule on what is preferable
social policy, and rot what is required by the Constitution,
a warrant rule would simply not be worth the price.
C. Even if arrest warrants are generally required,
Payton’s arrest without a warrant was proper
because it was the result of a continuous and
intensive pursuit of an armed killer.
The community has a much greater interest in the ap-
prehension of felons than in the seizure of evidence. Even
if the difference does not dissuade this Court from imposing
an arrest warrant requirement, it should, we believe, dis-
suade the Court from making the requirement excessively
rigid. Weight must be given to the strong community in-
terests involved. A reading of many cases which apply
‘i
an arrest warrant requirement leaves the reader with the
powerful sense that, no matter what the reasoning or the
language used, most of these courts recognize these legiti-
mate community interests and find ways not to interfere
with the apprehension of dangerous felons. Often the
courts do so, properly, by excusing the failure to obtain an
arrest warrant in circumstances that would not justify the
warrantless search for evidence. See cases collected in
footnote at p. 65, supra.
Ordinarily, a warrantless search of a dwelling can be
excused only if there is couerete proof that evidence will be
destroyed during the minutes or hours necessary to obtain
a search warrant. See Roaden v. Kentucky, 413 U.S. 496,
905 (1973); McDonald v. United States, 335 U.S. 451, 454-
00 (1948). The standard for warrantless arrests should
not be so severe. Armed felons are dangerous and mobile.
The police need leeway in deciding how and when to arrest.
They must consolidate their evidence; discuss the plans
for arrest; eat and rest so that, if there is an armed con-
frontation, they will be prepared. During this crucial
period, the officers should not be asked to predict how long
it would take to get a warrant and whether, while a war-
rant is sought, the suspect will escape.* In short, their
attentions should not be diverted from their important
tasks. See pp. 54-63, supra.
In the volatile world of apprehending felons, the courts
should be, and have been, reluctant to second-guess the
* See United States v. Brown, 540 F. 2d 1048, 1055 (10th Cir.),
cert. denied, 429 U.S. 1100 (1977) (warrantless arrest three days
after an armed robbery upheld despite claim that, since felon was
found in his dwelling, he obviously was not planning to flee).
78
investigating officers. In.one Indiana case, the police had
probable cause to arrest the defendant for murder at
5:00 p.m. However, the officers did not arrest him until
the early morning hours of the next day. The reviewing
court held that the circumstances were ‘‘exigent.’’ Banks
v. State, 265 Ind. 71, 351 N.E. 2d 4, cert. denied, 429 US.
1077 (1977). Ina recent federal case, the police arrested
an armed bank robber four hours after first having prob-
able cause. United States v. Campbell, 581 F. 2d 22, 24
(2d Cir. 1978). The court stated that the officers were ‘‘not
obligated by the Fourth Amendment’? to aggravate ‘‘the
existing risk of violence, escape and destruction of evidence
by waiting until a warrant could be obtained.’’ Id. at 27.
Whether or not they say so explicitly, these cases, and many
others,* recognize that the courts should not require an in-
terruption of the continuous pursuit of the felon who is
armed, dangerous, and only a step or two beyond the off-
cers.
The same factors are present here. Payton committed
a murder with a high-powered rifle. After the murder, as
the hearing judge found, the officers had reason to believe
that Payton was still ‘‘armed and could be a danger to the
community’? (A.41). For two days after the murder, the
officers investigated intensely but without success. Then,
on January 14, evidence regarding the identity and loca-
tion of the gunman quickly began to emerge. Detective
Malfer met one witness at the Manhattan District Attor-
* See e.g. United States v. Shye, 492 F. 2d 886 (6th Cir. 1974) ;
Vance v. North Carolina, 432 F. 2d 984 (4th Cir. 1970) ; People v.
Saars, Colo
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