# Supplemental Brief — Payton v. New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0431%3A7 ## Record - **Collection:** Supreme Court brief - **Document type:** Supplemental Brief - **Published:** January 1, 1980 - **Citation:** 445 U.S. 573 ## Text FOR ARGUMENT Supreme Court, U.S. ‘ _.ED oct 3 1979 IN THE Supreme Court of the Writer sepia oe curr October Term, 1979 No. 78-5420 THEODORE PAYTON, Appellant, vs. NEW YORK, Appellee. No. 78-5421 OBIE RIDDICK, Appellant, vs. NEW YORK, Appellee. Appeals from the New York Court of Appeals SUPPLEMENTAL BRIEF FOR APPELLANTS Wituium FE. Hewierstein Davm A. Lewis Counsel for Appellants The Legal Aid Society 15 Park Row—18th Floor New York, New York 10038 (212) 577-3420 TABLE OF CONTENTS I—Preface ........ Ung er en a es i da, IJ—At a minimum, when a police officer seeks to arrest a person in his own home, absent exigent circumstances, the Fourth Amendment requires that he possess an arrest warrant and that he have probable cause to believe that the person named in the warrant is at home when the war- PERC URAL I ART SESE ec IlI—Michigan v. DeFillippo, —— U.S. ——, 61 L.Ed. 2d 343 (1979), furnishes no basis upon which ap- pellant Payton can be denied the relief which is compelled by a determination of unconstitu- tionality eC eCeCCTCCCCOCCCOCOCOCOSTOSCOSOCCCOSCOOCOL CeO CCCCOCSeOo COTO Cee e eT ee Te ee Conclusion eee eee eee eee eee eee eee CeCe eee eee CeCe CeCe Teer ee eee eee ee ee eee eee ee eee eee CITATIONS Cases: Agnello v. United States, 269 U.S. 20 (1925) Chimel v. California, 395 U.S. 752 (1969) 200000000000... Commonwealth v. Terebieniec, Pa. , 25 Crim. L. Rep. 2502 (September 12, 1979) (Pa. Super. a Me aa Lar acca, Lesivctack al vadbichiscialadehecpucat coosenase Coolidge v. New Hampshire, 403 U.S. 443 (1971) Dalia v. United States, —— U.S. ——, 60 L.Ed.2d NEE RE oat Rese ee Dorman v. United States, 435 F.2d 385 (D.C. Cir. a cc ie hs saat dadewigacertecbiopbeenp Government of the Virgin Islands v. Gereau, 502 F.2d 914 (3d Cir. 1974), cert. denied, 424 U.S. 917 (1976) SERRE EEE EERE EERE EEE EEE EEE RHEE EEO EEE EEE EEE EEE HEHE ED > i | 10 I! PAGE Harris v. United States, 331 U.S. 145 (1947) 125 5 Johnson v. United States, 333 U.S. 10 (1948) . 6 Jones v. United States, 357 U.S. 493 (1958) ... 3, 4,5 Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966) 7 McDonald v. United States, 335 U.S. 451 (1949) 6 Michigan v. DeFiilippo, US. , 61 L.Ed.2d 343 (1979) ......... Wa, sai See Mineey v. Arizona, 437 US. 385 (1978) - Pty 11 People v. Sprovieri, 95 Ill. App.2d 10, 238 N.E.2d 315 (1978) « 3\:...::...2:.; 9, 12 People v. Wolgemuth, 69 ll. 2d 154, 370 N. F.2d 1067 (1977), cert. denied, 436 U.S. 908 (1978) 00000000... 7 Rice v. Wolff, 513 F.2d 1280 (8th Cir. 1975), rev’d sub nom. Stone v. Powell, 428 U.S. 465 (1976) .... 10 United States v. Brown, 467 F.2d 419 (D.C. Cir. United States v. Cravero, 545 F.2d 406 (5th Cir. Rs ok jinieicrs Rauss sess dene ee United States v. Ford, 553 F.2d 146 (D. C. ‘Cir. oc EEE, STEEN ter (CAEL sedans [EEN as YO Cee | We 7 United States v. Hammond, 585 F.2d 26 (2d Cir. NAR Bae SAT Rercaed Bes padina WV le oe A rch hak! eae 5 United States v. Harper, 550 F.2d 610 (10th Cir.), cert, denied, 434 U.S. 837 (1977) ................. 7 United States v. Houle, —— F.2d —~— No. 78-1876 Cie Mere PANO Ey MTOR Ne cie licciedecses. 2 United States v. Jeffers, 342 U.S. 48 (1951) 0. 6 United States v. Joines, 246 F.2d 278 (3d Cir. 1957), vacated and remanded, 357 U.S. 573 (1958) ........ 7 United States v. Joines, 258 F.2d 471 (3d Cir.), cert. denied, 358 U.S. 880 (1958) 2....chcccccccccececcceseees 7 II! PAGE United States v. Lefkowitz, 285 U.S. 452 (1932) ._.. 5) United States v. McKinney, 379 F.2d 259 (6th Cir. 8 gg MOREE Rave Bitedinys et me Oey UI i cia a RAS oc 7 United States v. Prescott, 581 F.2d 1343 (9th Cir. BE hail ate al ies aan taeda gira 11 United States v. Reed, 572 F.2d 412 (2d Cir. 1978) . 5 United States v. Sumlin, 567 F.2d 684 (6th Cir. 1977), cert. denied, 435 U.S. 932 (1978) ........... 7 United States v. United States District Court, 407 U.S. 297 (1972) .. Sh Pe TRL) MN Mey ed, See . 9 United States v. W atson, 423 U. Ss. 41 (1976) 9 United States v. Woods, 560 F.2d 660 (5th Cir. 1977) 7 Miscellaneous Authorities: Advisory Committee Note, Proposed Amendments to Federal Rules of Criminal Procedure, 75 (1978) 9 Amendments to Federal Rules of Criminal Procedure, 47 U.S.L.Wk. 4488, 4491 (May 1, 1979) ............. 3 Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L.. Rev. 349 (1974), ......460.0...0.0..4.......' 8,10 Comment, Warrantless Arrests in Homes: Another Crisis for the Fourth Amendment, 7 Ford. Urb. Maas WF CRIM oe entetese y esed ota 2 Kelder, Criminal Procedure, 30 Syracuse L. Rev. 15, ey | SESS BPO ID Coes ie ween SORN Cae BRL is ONS Pen PE Pes 2 2 W. LaFave, Searcn anv Seizure (1978) _....... 8,9, 10,11 Note, The Constitutionality of Warrantless Home Ar- rests, 78 Colum. L. Rev. 1550 (1978) 000000... 2 O’Connor, 4th Amendment and Warrantless Home Arrests, New York Law Journal, pp. 1, 2 (Sep- a BE PUR bn ire heap eta alone 2,10 Rotenberg & Tanzer, Searching for the Person to Be Seized, 35 Ohio St. L.J. 56 (1974) 0... 3, 10 The Neglected Fourth Amendment Problem in Ar- rest Entries, 23 Stan. L. Rev. 995 (1974) ............ 3 IN THE Supreme Court of the United States October Term, 1979 No. 78-5420 $< Tneopore Payton, Appellant, vs. New York, Appellee. No. 78-5421 Osre Rivpicr, Appellant, vs. New York, Appellee. Appeals from the New York Court of Appeals ee SUPPLEMENTAL BRIEF FOR APPELLANTS This brief is submitted to inform the Court of one court decision and several articles which have appeared since the original briefs were filed, to address an issue which arose during oral argument on March 26, 1979, and to respond to contentions advanced by appellee in its Supplemental Brief. I . Preface Since t! .ain briefs in these cases were filed, the Eighth Cireuit has held that a warrantless entry to ar- rest in a private dwelling is violative of the Fourth Amend- ment. United States v. Houle, F.2d , No. 78-1876 (8th Cir. August 17, 1979). Several articles supporting ap- pellants’ position have also appeared. Note, The Constitu- tionality of Warrantless Home Arrests, 78 Colum. L. Rev. 1550 (1978); Kelder, Criminal Procedure, 30 Syracuse L. Rev. 15, 64-71 (1979) ; O’Connor, 4th Amendment and War- rantless Home Arrests, New York Law Journal, pp. 1, 2 (September 18, 1979); Comment, Warrantless Arrests in Homes: Another Crisis for the Fourth Amendment, 7 Ford. Urb. L.J. 93. (1978-1979). At a minimum, when a police officer seeks to arrest a person in his own home, absent exigent circum- stances, the Fourth Amendment requires that he pos- sess an arrest warrant and that he have probable cause to believe that the person named in the warrant is at home when the warrant is executed. a. At the first argument of these cases, the question arose, assuming a warrantless entry to arrest is violative of tue Fourth Amendment, what type of warrant is required? (Tr. Oral Arg. pp. 40-41). Our position, although as stated the cause of some confusion, was that an arrest warrant plus reasonable cause* to believe the person *It was not our intention to differentiate between reasonable cause and probable cause. 3 named in the warrant was at home at the time the warrant was executed would suffice (Tr. Oral Arg. p. 47). We adhere to this position but wish to make it clear that we view this as a minimal Fourth Amendment require- ment; one that is a sufficient basis for reversal of the two judgments in the cases at bar. For in these cases the New York statutory provisions at issue authorized entries into private dwellings without any warrant, and the police, in fact, possessed none. Moreover, both cases involved arrest entries into the homes of the suspects themselves, not into the homes of third persons for which, as we later point out, the argument for a secrch warrant requirement is thought by many to be exceptionally strong. We also do not quarrel with the proposition that a search warrant, which requires a magistrate to make the dual determination—that there is probable cause to believe the person sought has committed a crime and that there is a sound basis for authorizing entry into particular prem- ises—would afford greater protection to the privacy inter- ests in the home than would an arrest warrant. And we believe there is much to be said for the position that the Fourth Amendment can be read to require a search war- rant. See, Rotenberg & Tanzer, Searching for the Person to Be Seized, 35 Ohio St. L.J. 56, 67 (1974); The Neglected Fourth Amendment Problem in Arrest Entries, 23 Stan. L. Rev. 995 (1974); Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L, Rev. 349, 358-360 (1974).! 1. Indeed, the recent amendment of Rule 41(b) of the Federal Rules of Criminal Procedure by the Court so that it now provides for issuance of a search warrant for a “person for whose arrest there is probable cause, or who is unlawfully restrained” [47 U.S.L.Wk. 4488, 4491 (May 1, 1979)] supports the view that a search warrant is required, particularly if the statement is accurate that “Riile 41 implements the Fourth Amendment...” Jones v. United States, 357 U.S. 493, 498 (1958). 4 However, we think it unnecessary to insist that in these cases, which involve warrantless entries into the homes of the persons sought, only a search warrant can protect adequately the privacy interests at stake. We believe there is more than ample support for this position in prior decisions of this Court, in decisions of lower federal courts and state courts and in the opinions of scholars who have examined the question. Should our net be thus too narrowly cast, the Court believing that a search warrant, not an arrest warrant, is required, appellants Payton and Riddick would still be entitled to reversals because of the entirely warrantless entries in their cases. And we would welcome such a result. But under the circumstances of these cases, where there are available to the Court several methods of resolution, we see no benefit to appellants to insist that only a search war- rant could have validated the police conduct here in ques- tion. The Court’s prior statements about arrest warrants, either explicit or implicit, strongly support the conclusion that an arrest warrant affords meaningful protection to the privacy interests of persons sought by police in their own homes. For example, in Jones v. United States, 357 U.S. 493 (1958), the Court appears to have assumed that an arrest warrant would have validated the entry in that case when it stated that a warrantless entry to arrest would present the grave constitutional question, namely, whether the forceful nighttime entry into a dwelling to arrest a person reasonably believed within, upon probable cause that he committed a felony, under circum- 5) stances where no reason appears why an arrest war- rant could not have been sought, is consistent with the Fourth Amendment. 357 U.S. at 499-500. To similar effect is the statement (per Mr. Justice Stewart) in Coolidge v. New Hampshire, 403 U.S. 443 (1971) that ‘‘[t]he case of Warden v. Hayden, supra, where the Court elaborated a ‘hot pursuit’ justifica- tion for the police entry into the defendant’s house with- out a warrant for his arrest, certainly stands by negative implication for the proposition that an arrest warrant is required in the absence of exigent cireumstances.’’ 403 U.S. at 480-481. The Second Circuit, which held in United States v. Reed, 572 F.2d 412 (2d Cir. 1978) that an entry without an ar- rest warrant violated the Fourth Amendment, has read these statements and others as indicative of this Court’s acceptance of arrest warrants in some circumstances: Although we need not and do not decide this question here, we note that counsel’s decision not to argue this point [that a search warrant is required] seems to be in accord with hints by the Supreme Court that, at least in some circumstances, an arrest warrant may be all that is required for law enforcement officers to enter a private residence, or to search that residence, for purposes of arresting the subject of the warrant. United States v. Hammond, 585 F.2d 26, 28 n.1 (2d Cir. 1978).? 2. In addition to Jones and Coolidge, the court of appeals in Hammond cited Harris v. United States, 331 U.S. 145, 153 (1947), Chimel v. California, 395 U.S. 752, 755 (1969) and United States v. Lefkowitz, 285 U.S. 452, 463-464 (1932). To that list, we would also add Agnello vy. United States, 209 U.S. 20 (1925), in which the entry into defendant Alba's home made pursuant to an arrest warrant (footnote continued on next page) 6 This reading of the Court’s assessment of the efficacy of arrest warrants would seem buttressed further by its recent decision in Dalia v. United States, —— U.S. —, 60 L.Ed.2d 177 (1979). There the Court, per Mr. Justice Powell, rejected the argument that separate authorization must be obtained for a surreptitious entry into private premises to place electronic surveillance equipment and emphasized the distinction between a warrant’s content and the manner of its execution, referring specifically to an arrest warrant situation: Often in executing a warrant the police may find it necessary to interfere with privacy rights not ex- plicitly considered by the judge who issued the war- rant. For example, police executing an arrest war- rant commonly find it necessary to enter the suspect’s home in order to take him into custody, and they thereby impinge on both privacy and the freedom of movement. See, e.g., United States v. Cravero, 545 F.2d 406, 421 (CA5 1976) (on petition for rehearing). 60 L.Ed.2d at 193. The Cravero case, cited in Dalia, holds that the Fourth Amendment is not violated when police, armed with a valid arrest warrant, enter private premises to execute the war- rant. The Fifth Circuit rejected the argument that only a search warrant could legitimate such an entry, reasoning that once there is an arrest warrant naming the person, ‘there is no need to particularize the search—the arrest was not questioned. 269 U.S. at 30; McDonald v. United States, 335 U.S. 451, 459 (1949) (Mr. Justice Jackson, concurring) ; United States v. Jeffers, 342 U.S. 48, 50 (1951). The Court’s opinions in both McDonald and Johnson vy. United States, 333 U.S. 10 (1948), which seem to support a search warrant requirement, were written, — in cases in which no warrant of any kind had been ob- tained. 7 warrant has already done that. There is not the same danger of the ‘general writ’ which is the reason for requir- ing that a search warrant describe what specifie items po- lice are allowed to search for.’’? 545 F.2d at 421 n.1. In United States v. Woods, 560 F.2d 660 (5th Cir. 1977) the court suggested further that its Cravero holding, which concerned entry into third-party premises, applied a forti- ori where officers entered the premises belonging to the sub- ject of the arrest warrant. 560 F.2d at 666. Many other courts share the same view. See, e.g., United States v. Harper, 550 F.2d 610, 613-614 (10th Cir.), cert. denied, 434 U.S. 837 (1977); United States v. Brown, 467 F.2d 419 (D.C. Cir. 1972) (opinion of Mr. Justice Clark); United States v. McKinney, 379 F.2d 259, 262-263 (6th Cir. 1967) ; Lankford v. Gelston, 364 F.2d 197, 205-206 (4th Cir. 1966) ; United States v. Joines, 258 F.2d 471 (3d Cir. 1958) ;° Peo- ple v. Wolgemuth, 69 Tll.2d 154, 370 N.E.2d 1067 (1977), cert. denied, 436 U.S. 908 (1978); Commonwealth v. Tere- bieniec, Pa. ——, 25 Crim. L. Rep. 2502 (Sept. 12, 1979) (Pa. Super. Ct.); but see, United States v. Sumlin, 567 F.2d 684, 686 n.1 (6th Cir. 1977), cert. denieds 435 U.S. 932 (1978); United States v. Ford, 553 F.2d 146, 159 n.45 (D.C. Cir. 1977). Appellee’s main objection to an arrest warrant require- ment is that it does not provide enough protection for the home. (Supp. Br. pp. 5,6). As we have shown in our main brief, however, the arrest warrant provides substantial 3. The original decision in Joines (246 F.2d 278) was vacated by this Court and remanded for consideration in light of Jones v. United States, 357 U.S. 493 (1958). 357 U.S. 573 (1958). The court of appeals adhered to its affirmance of the conviction because entry into the suspect's premises had been made for the purpose of executing an arrest warrant. United States v. Joines, 258 F.2d 471, 472-473 (3d Cir. 1958). Thereafter, the Court denied certiorari. 358 U.S. 880 (1958). 8 ‘ protection for the privacy of homes.) (Br. at 31-35). In- deed, appellee concedes that ‘‘[a]ny restriction on the au- thority of police officers to make arrests inside a dwelling would provide some protection for the privacy of the home,’’ and that a magistrate’s review would undoubtedly screen out ‘‘some arrests, not based on probable cause to believe the defendant committed a crime, that would have been effected in a dwelling.’”’ (Supp. Br. p. 5). We think these are important concesssions, because they render un- tenable appellee’s denigration of the value of an arrest warrant requirement. Appellee’s argument not only ignores the common sense conclusion that once there are legitimate privacy interests to be protected, some protection is better than none, it over- looks entirely the reality that when the premises to which entry is sor ht pursuant to an arrest warrant are those of the person named in the warrant, it is the magistrate’s determination that there is probable cause to believe the person has committed a crime that is of predominant im- portance. As Professor LaFave has observed: But where the premises to be entered are those of the person sought to be arrested, it is less certain whether it is the protection of an arrest warrant or the protection of a search warrant which is most needed. Some commentaturs have argued in favor of search warrants even in these circumstances on the ground that it is desirable here as well to have a judicial deter- mination of the question whether the wanted person is probably in the piace to be entered. The contention is not without substance, although it may well be argued that the need for a judicial determination on this prob- able cause question is less substantial because (for the reasons noted in the preceding subsection) it is of necessity often resolved as a matter of inference from 9 a lack of information indicating the defendant is else- where. Stated another way, it might well be contended that protection of the privacy of the suspect’s premises is more likely to be enhanced by a judicial determina- tion of the suspect’s probable guilt than of this prob- able presence at home. 2 W. LaFave, Searcy anp Setzure 385 (1978).4 Appellee’s contention that an arrest warrant require- ment would undereut United States v. Watson, 423 U.S. 411 (1976) is also wrong.