Amicus Brief — Steagald v. United States

£

No. 79-6777

— —

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

GARY KEITH STEAGALD,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF THE AMERICAN CIVIL LIBERTIFS UNION

AND ELDRED WALLACE, JEANNIE WALLACE,

JOHN DeBIASE AND ELIZABETH DeBIASE,

IN SUPPORT OF PETITIONER, 4M/C/ CURIAE

JOHN McNALLY

Murphy, MicGettigan,

McNally & West, PC.

921 King Street

Alexandria, Virginia 22314

(703) §49-$383

CHARLES S. SIMS

American Civil Liberties

Union Foundation

132 West 43rd Street

New York, New York 10036

(212) 944-9200

Attorneys for Amici Curiae

i

TABLE OF CONTENTS

Page

I S pen oe Korie Dibsin eben adapmnen il

ee er I, 0 ov.nduadnclcdoesiuarnensees l

te I cc ans eccwwenecbecdeb ane deus 3

I Sk aS oo ode CEG ok on 8 Nb dba wei ok eeu ewe 4

THE FOURTH AMENDMENT REQUIRES THAT POLICE OF-

FICERS OBTAIN A WARRANT DESCRIBING THE PLACE TO BE

SEARCHED BEFORE ENTERING AND SEARCHING THE PRI-

VATE HOME OF A THIRD PARTY IN AN ATTEMPT TO

EXECUTE AN ARREST WARRANT, EVEN WHERE THE OF-

FICERS HAVE PROBABLE CAUSE TO BELIEVE THAT THE

SUSPECT NAMED IN THE WARRANT IS IN THE PREMISES,

ABSENT CONSENT OF THE HUMEOWNER OR EXIGENT

CIRCUMSTANCES.

Conclusion

"VG CSO CEE Oat ee eeen ee 6 6 & ee 6 Cee 6 6 8 0: 64 8 th 6 6 &

TABLE OF CASES

Agnello v. United States, 269 U.S. 20

CSSD «60 sc ae CEU a Aas séccceerces 4

Aguilar v. Texas, 378 U.S. 108 (1964)............... 22

Boyd v. United States, 116 U.S. 616

() | Fe Fe en a 6,7

Carroll v. United States, 267 U.S. 132 (1925)......... 10

Chambers v. Maroney, 399 U.S. 42 (1970) . 11, 14, 16, 19

Chimel v. California, 395 U.S. 752

(19GDD.. ... . andcneeeee sas 10, 11, 17, 19, 20

Coolidge v. New Hampshire, 403 U.S. 443, reh.

denied, 404 U.S. 874(1971)............005. 5, 10, 20

Dombrowski v. Pfister, 380 U.S. 479 (1965) ......... 22

Fisher v. Volz, 496 F.2d 333 (3d Cir. 1974) .... 14, 15, 16

Frank v. Maryland, 359 U.S. 360 (1959).............. 7

Gerstein v. Pugh, 420 U.S. 103 (1975) ............... 5

Government of the Virgin Islands v. Gereau,

502 F.2d 914 (3d Cir. 1974), cert.

Gera, Ge are aie esc dcccccscacss 15

Johnson v. United States, 333 U.S. 10

(196RD.. . ..« <select ee a aes o 9, 10, 11, 12, 22

Jones v. United States, 357 U.S. 493 (1958)..... 4, 10, 22

Katz v. United States, 389 U.S. 347 (1967)........ 10, 12

Ker v. California, 374 U.S. 23 (1963) ................ 6

King v. Wallace, No. 80-503, United States

re 2

Lankford v. Gelston, 364 F.2d 197 (4th

Cir. 1966)

iil

Mancusi v. DeForte, 392 U.S. 364 (1968)......... 10, 12

Mapp v. Ohio, 367 U.S. 643 (1961). ..... 0.0.0 cee cees 6

Marcus v. Search Warrant, 367 U.S. 717 (1961) ....... 7

McDonald v. United States, 335 U.S. 451

EE taraa a cle Cac DEN a ware aia oa Wines weaie sax 8,11, 12

Payton v. New York, No. 78-5420, United States

Supreme Court (April 15, 1980)

PT EINE Co PEE 5, 13, 14, 16, 19

Rice v. Wolff, 513 F.2d 1280 (8th Cir.), reversed

on other grounds, sub nom, Stone v. Powell,

ee Sine NPIS Fkan 40nd cna Noha cents vane 16

Rios v. United States, 364 U.S. 253 (1960)........... 10

Rodriguez v. Jones, 473 F.2d 599 (Sth Cir.),

cert. denied, 412 U.S. 953 (1973)... ..... cc cece 19

Schmerber v. California, 384 U.S. 757 (1966) ..... 10, 12

Sibron v. New York, 392 U.S. 40 (1968) ............. 12

Silverman vy. United States, 365 U.S. 505 (1961) ....... 7

South Dakota v. Opperman, 428 U.S. 364 (1976)...... 7

Stanford v. Texas, 379 U.S. 476 (1965). .......0.0005. 7

Terry v. Ohio, 392 U.S. 1 (1968) ............ ccc cece 12

United States v. Cravero, 545 F.2d 406 (Sth

Se Res Snare (onee be ol tar ge 5,17, 19

United States v. Ford, 553 F.2d 146 (D.C.

Be ee oul kd xe cae ek Pee ea 15, 16

United States v. Harper, 550 F.2d 610 (10th Cir.

DNS Gack) ha eas er eae ea terre ls ues 17

CTOs kdb Wexner enscadeh teaew ebereeseciiesake 19

iV

United States v. Jeffers, 342 U.S. 48 (1951)....... 11,12

United States v. Lefkowitz, 285 U.S. 452

SE TEG Aas Ta G Hee CCU gad sol Pak Wik eae nt 9,21

United States v. Martine Fuerte, 428 U.S. 543

DSS Dia ele thse was wk bana a GO 8b acs Obs 6

United States v. McKinney, 379 F.2d 259

I a Re ee a ee 17,19

United States v. Rabinowitz, 339 U.S. 56

Egle ES EA SR age ee Ca 10, 11, 17, 19

United States v. Steagald, 606 F.2d 540 (Sth

ee tee de cess de ne hekas exe Waw her eee ews l

United States v. Watson, 423 U.S. 411 (1976) ......... 5

Vale v. Louisiana, 399 U.S. 30 (1970). .............. 10

Wallace v. King, No. 78-1399 (July 1, 1980) ...... 15, 16

Warden v. Hayden, 387 U.S. 294 (1967) ......... 10, 12

Wolf v Colorado, 338 U.S. 25 (1949). ...........008. 6

STATUTES

4 Sad | SB eee errr ee rrr eres ree ee 15

OTHER AUTHORITY

Amsterdam, Perspectives on the Fourth

Amendment, 58 Minn. L. Rev. 349 (1974)......... 12

The Neglected Fourth Amendment Problem in

Arrest Entries, 23 Stanford L. Rev. 994(1971)..... 12

TREATISE

Coke, Third Institute 162 (1644) .................... 7

I

No. 79-6777

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

GARY KEITH STEAGALD,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS.

FOR THE FIFTH CIRCUIT

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION

AND ELDRED WALLACE, JEANNIE WALLACE,

JOHN DeBIASE AND ELIZABETH DeBIASE,

IN SUPPORT OF PETITIONER, AMICI CURIAE

INTEREST OF AMICI CURIAE

The American Civil Liberties Union is a nationwide,

nonprofit organization of over 200,000 persons, dedicated

to defending and protecting the rights enumerated in the

Constitution. The ACLU has had a special interest in

2

maintaining the fundamental protection offered to indivi-

duals by the Fourth Amendment against government in-

trusion into their homes. ACLU attorneys have appeared

in this Court, either directly or for amici, in many of this

Court’s Fourth Amendment cases.

Against the arguments of those who contend that police

officers should have broad discretion in determining when

the privacy rights of citizens are to yield, the ACLU has

long argued that the warrant requirement of the Fourth

Amendment is the only meaningful safeguard for the citi-

zen’s right of privacy. We believe that the ACLU’s experi-

ence in Fourth Amendment cases can be of substantial

assistance to the Court as it decides whether the require-

ments of the Amendment were followed in this case.

Eldred and Jeannie Wallace and John and Elizabeth

DeBiase are the respondents in King v. Wallace, No. 80-503,

currently pending in this Court on petition for writ of

certiorari. Counsel for Amici Curiae hereis counsel of

record for respondents in that case. The question presented

in King v. Wallace is identical to the question presented

here. Respondents Wallace and DeBiase, in a motion filed

concurrently with their brief, have requested that the Court

consolidate King v. Wallace with this case for all further

proceedings. To date, the Court has not acted on their

motion.

The Wallaces and DeBiases are homeowners in Fairfax

County, Virginia, whose houses were searched under a

police policy identical to the one which is the subject of

this case. Their claims against the police officers were as-

serted, however, not in the course of a criminal prosecu-

tion -- no contraband or illegal activity was discovered in

respondents’ homes -- but in a civil rights suit against the

Fairfax County Police Department. Any decision in this

case should take into account and protect the Fourth

Amendment privacy rights of similarly situated, uninvolved

third parties who may be subjected to searches such as the

one here.

SUMMARY OF ARGUMENT

The Framers of the Fourth Amendment wished to se-

cure to the citizen the right of privacy in his home; their

means to that end was the institution of the search war-

rant, which interposed the judiciary between the citizen

and arbitrary police power. The federal agents in this case

insist upon a distinction, for Fourth Amendment pur-

poses, between searching for things and searching for per-

sons in a house, arguing that in the latter category of cases,

when in possession of an arrest warrant, they need not

obtain a search warrant describing the premises to be en-

tered in search of their suspect. This distinction makes no

sense, however, for two reasons.

First, the invasion of the privacy of a citizen’s home is

unaffected by the object of the policeman’s search. Second,

the Fourth Amendment preference for judicial rather than

police determinations of probable cause for searches is no

less forceful because the intended search is for persons

rather than things. The Fourth Amendment requires that,

absent exigent circumstances, a search of particular prem-

ises must be based upon the determination of a judge or

magistrate that there is probable cause to believe that the

object of the search -- whether ‘‘person’’ or ‘‘thing’’ -- is

within the premises to be entered. Only in the course of

such a determination can the privacy of citizens in their

homes be appropriately weighed against the interest of the

government in seizing evidence or apprehending suspects.

ARGUMENT

THE FOURTH AMENDMENT REQUIRES THAT POLICE

OFFICERS OBTAIN A WARRANT DESCRIBING THE

PLACE TO BE SEARCHED BEFORE ENTERING AND

SEARCHING THE PRIVATE HOME OF A THIRD

PARTY IN AN ATTEMPT TO EXECUTE AN ARREST

WARRANT, EVEN WHERE THE OFFICERS HAVE

PROBABLE CAUSE TO BELIEVE THAT THE SUSPECT

NAMED IN THE WARRANT IS IN THE PREMISES,

ABSENT CONSENT OF THE HOMEOWNER OR EXI-

GENT CIRCUMSTANCES.

The Fourth Amendment to the Constitution of the

United States provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

The Amendment by its terms prohibits “unreasonable

searches” and does not specify when search warrants

must be obtained. Nevertheless, it is settled doctrine

that the Amendment requires a policeman to obtain a

warrant “upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched” before he may enter a private dwelling and

seize a “thing”. Agnello v. United States, 269 U.S. 20,

33 (1925); Jones v. United States, 357 U.S. 493, 497

(1958). The issue presented by this case is whether an

officer must also obtain a warrant “particularly describ-

ing the place to be searched” before entering a third

party’s home for a search aimed at the seizure of a

“person” named in an arrest warrant.

5

This Court has never decided this issue. In 1958, the

Court characterized it as a ‘‘grave’’ constitutional ques-

tion, but refused to rule on it because it was not

fairly presented on a record which was interpreted as in-

volving a search for goods. Jones v. United States, supra,

at 499-500. Since that time, the question has surfaced but

it has never been directly confronted.’ This case presents

the issue simply and squarely.

The Federal narcotics agents in this case perceived and

acted upon a distinction between searching for people and

searching for objects in a house, although their basis for

differentiating between the two types of searches does not

appear in the record. Consistent with that distinction,

they searched the residence of third parties for their sus-

pect, Ricky Lyons, on the basis of an outstanding warrant

for! is arrest, but applied to a magistrate for a search war-

rant specifically describing the premises in order to seize

packets of suspected cocaine discovered in the course of

their search for Lyons.

Amici submit that there is no rational ground consis-

tent with the purposes of the Fourth Amendment for a

rule permitting entries and searches for persons but not

for tangible objects. The Amendment’s terms do not

differentiate between searches for persons and things,

and the Amendment protects the security of citizens

'See Payton v. New York, No. 78-5420, United States Supreme

Court (April 15, 1980) (Slip Opinion at 10); United States v. Watson,

423 US. 411, 418, at n.6 (1976); Gerstein v. Pugh, 420 U.S. 103, 113,

at n.13 (1975); Coolidge v. New Hampshire, 403 U.S. 443, 480-481,

reh. denied, 404 U.S. 874 (1971).

2 . : :

It will be assumed, for purposes of this brief, that the agents were

relying for their actions upon the rule enunciated in United States

v. Cravero, infra.

6

in their “persons, homes, papers, and effects” without

distinction.

Our position is firmly rooted in the principles of the

Fourth Amendment. The protection we seek is not

founded upon some novel theory of jurisprudence which

a more humane society might have incorporated into

its Bill of Rights; rather, we invoke the very protection

that the Framers of the Fourth Amendment intended to

provide, namely, protection against general warrants

which sanction wholesale invasions of private homes

and subject the citizenry to a police system armed with

unfettered discretion.

We start with the incontrovertible proposition that the

basic policy of the Fourth Amendment is to secure to

the citizen the night of privacy in his home. The land-

mark case of Boyd v. United States, 116 U.S. 616, 630

(1886), stated the point simply and forcefully:

[The principles of the Fourth Amendment] ap-

ply to all invasions, on the part of the govern-

ment and its employees, of the sanctity of a

man’s home and the privacies of life. It is not

the breaking of his doors and the rummaging

of his drawers that constitutes the essence of

the offence; but it is the invasion of his in-

defeasible right of personal security, personal

liberty and private property.

It is clear, moreover, that one’s reasonable expectation

of privacy in the home is entitled to a unique sensitivity

from federal courts. See, e.g., United States v. Martinez-

Fuerte, 428 U.S. 543, 561, 565 (1976) (‘‘the sanctity of

‘the fundamental protections of the Fourth Amendment are

guaranteed by the Fourteenth Amendment against invasion by the

states. Wolf v. Colorado, 338 U.S. 25, 27 (1949); Mapp v. Ohio, 367

U.S. 643 (1961); Ker v. California, 374 U.S. 23, 33 (1963).

7

private dwellings [is] ordinarily afforded the most strin-

gent Fourth Amendment protection.’’ ‘‘Private dwellings

involve ‘strong Fourth Amendment interests that justify

the warrant requirement.’’’); South Dakota v. Opperman,

428 U.S. 364, 367 (1975) (‘‘Less rigorous warrant require-

ments govern [automobile searches] because the expecta-

tion of privacy with respect to one’s automobile is signifi-

cantly less than that relating to one’s home or office.’’

(Footnote omitted.)); Silverman v. United States, 365 U.S.

505, 511 (1961) (‘‘At the very core [of the Fourth Amend-

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

home and there be free from unreasonable governmental

intrusion’’); Coke, Third Institute 162 (1644) (‘‘A man’s

house is his castle.’’).

The history of the Fourth Amendment supports the

conclusion that its principal attack was against general

warrants. That the Amendment was adopted in response

to the abuses which had been committed by governmen-

tal authorities under general warrants has been docu-

mented repeatedly. Boyd v. United States, supra, at 624-

625; Frank v. Maryland, 359 U.S. 350, 363-366, 376-377

(1959); Marcus v. Search Warrant, 367 U.S. 717, 714-729

(1061); Stanford v. Texas, 379 U.S. 476, 481-484 (1965).

In Stanford v. Texas, supra, the Court, in discussing the

origins and purpose of the Fourth Amendment, observed:

Vivid in the memory of the newly independent

Americans were those general warrants known

as writs of assistance under which officers of

the Crown had so bedeviled the colonists. The

hated writs of assistance had given customs

officials blanket authority to search where they

pleased for goods imported in violation of the

British tax laws. They were denounced by

James Otis as “the worst instrument of arbi-

trary power, the most destructive of English

liberty and the fundamental principles of law,

8

that ever was found in an English lawbook,

because they placed ‘the liberty of every man

in the hands of every petty officer.’”” 379 USS.

at 481.

Although the American and English experiences with

general warrants differed in some particulars, the essen-

tial vice of these warrants was seen to be the same-the

blanket authority given to police officers by a single war-

rant to enter and search numberless homes, trampling

the right of privacy of their inhabitants. It is our conten-

tion that the warrant for the arrest of Ricky Lyons had

this same fatal characteristic.

The solution adopted by the Framers of the Bill of Rights

to keep ‘‘the liberty of every man’’ out of ‘‘the hands of

every petty officer’’ was the institution of the search war-

rant, which interposed the judiciary between the citizen

and arbitrary police power. The rationale of the search

warrant was stated plainly by Justice Douglas in McDonald

v. United States, 335 U.S. 451, 455-456 (1948):

We are not dealing with formalities. The presence

of a search warrant serves a high function. Ab-

sent some grave emergency, the Fourth Amend-

ment has interposed a magistrate between the

citizens and the police. This was done not to

shield criminals nor to make the home a safe

haven for illegal activities. It was done so that an

objective mind might weigh the need to invade

that privacy in order to enforce the law. The

right of privacy was deemed too precious to en-

trust to the discretion of those whose job is the

detection of crime and the arrest of criminals.

Power is a heady thing and history shows that

the police acting on their own cannot be trusted.

So the Constitution requires a magistrate to pass

on the desires of the police before they violate

the privacy of the home. We cannot be true to

9

that constitutional requirement and excuse the

absence of a search warrant without a showing

by those who seek exemption from the constitu-

tional mandate that exigencies of the situation

made that course imperative.

The constitutional preference that determinations of

probable cause for searches be conducted by disinter-

ested judicial officers rather than by interested police

officers was also articulated in Johnson v. United States ,

333 U.S. 10, 13-14 (1948), in Justice Jackson’s familiar

words:

The point of the Fourth Amendment, wnich

often is not grasped by zealous officers, is not

that it denies law enforcement the support of

the usual inferences which reasonable men draw

from evidence. IJts protection consists in re-

quiring that those inferences be drawn by a

neutral and detached magistrate instead of be-

ing judged by the officer engaged in the often

competitive enterprise of ferretting out crime...

When the right of privacy must reasonably

yield to the right of search is, as a rule, to be

decided by a judicial officer, not by a police-

man or government enforcement agent. (Em-

phasis added.)

“See also, United States v. Lefkowitz, 285 U.S. 452, 464 (1932):

[T]he informed and deliberate determinations of magis-

trates empowered to issue warrants...are to be preferred

over the hurried actions of police officers...who may hap-

pen to make arrests. Security against unlawful searches

is more likely to be attained by resort to search warrants

than by reliance upon the caution and sagacity of petty

officers while acting under the excitement that attends

the capture of persons accused of crime.

10

Today it is well settled that a search warrant is re-

quired for the search of a private home, subject to es-

tablished exceptions. The exceptions which this Court

has enumerated in the past can generally be classified

as involving the search of a moving vehicle, justified by

its mobility. See, e.g., Carroll v. United States, 267 U.S.

132 (1925); search incident to arrest, justified in order

to protect the officer or to prevent destruction of evi-

dence immediately at hand. See, e.g., Chimel v. Cali-

fornia, 395 U.S. 752 (1969); and an exception which the

Court has recognized to date only in dictum for searches

developing under extraordinary or “exceptional” circum-

stances. See, e.g., Warden v. Hayden, 387 U.S. 294

(1967); Schmerber v. California, 384 U.S. 757, 770-771

(1966); see generally, Johnson v. United States, supra, at

15.

While the police may urge this Court to support war-

rantless arrest entries under a standard of general rea-

sonableness, the validity of the reasonableness test it-

self is extremely doubtful. United States v. Rabinowitz,

339 U.S. 56 (1950), in which that theory reaches its fullest

development, has been only twice reaffirmed by the

Supreme Court and was finally overruled in Chimel v.

California, supra, at 768. Chimel is significant to the in-

quiry here for several reasons. The standard of necessity

which the Court adopted there can be viewed as a

general watershed for all exceptions to the warrant re-

quirement. Noting that the Fourth Amendment’s re-

quirement of reasonableness must be read in light of its

*Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971); Vale v.

Louisiana, 399 U.S. 30, 34-35 (1970); Mancusi v. DeForte, 392 US.

364, 370 (1968); Katz v. United States, 389 U.S. 347, 357 (1967);

Rios v. United States, 364 U.S. 253, 260 (1960); Jones v. United

States, 357 U.S. 493, 499 (1958).

1]

history and purpose, the Court, in overruling Rabinowitz,

concluded “‘we cannot...excuse the absence of a search

warrant without a showing by those who want exemption

from the constitutional mandate that the exigencies of

the situation made that course imperative.” 395 US.

at 761, citing McDonald v. United States, supra.”

Considerable precedent other than Chimel supports

the proposition that necessity is the proper standard to

use in determining whether circumstances are sufficiently

extraordinary to permit an exception to the warrant re-

quirement. This Court’s past application of the notion

of exceptional circumstances indicates that the key to

excusing a warrant has been a finding that an immediate

search was necessary. See, e.g., Johnson v. United States,

supra; McDonald v. United States, supra; United States v.

Jeffers, supra. In all three cases, the Court invalidated

a warrantless search for want of exceptional circum-

stances.

In Chambers v. Maroney, 399 U.S. 42 (1970), this Court

reemphasized that necessity is the proper standard to

use in determining whether circumstances will permit

an exception to the warrant requirement: :*

In enforcing the Fourth Amendment’s prohibi-

tion against unreasonable searches and seizures,

the Court has insisted upon probable cause as a

minimum requirement for a reasonable search

permitted by the Constitution. As a general rule,

“The burden here, of course, is upon the police to show the

legality of their practice:

jt}he general requirement that a search warrant be ob-

tained is not lightly to be dispensed with, and the burden

is on those seeking [an] exemption [from the requirement]

to show the need for it...Chimel v. California, supra, at

762, quoting United States v. Jeffers, 342 U.S. 48, 51

(1951).

12

it has also required the judgment of a magis-

trate on the probable cause issue and the issu-

ance of a warrant before a search is made. Only

in exigent circumstances will the judgment of

the police as to probable cause serve as a suf-

ficient authorization. 399 U.S. at 51. (Emphasis

added.)

Johnson, McDonald and Jeffers implicitly grounded

the exigent circumstances exception, to the extent that

it was recognized in those cases, on a finding that a

warrantless search by police was imperative if the pur-

pose of the search was not to be frustrated. These

cases have been cited repeatedly by the Supreme Court

as precedent for determining other exceptions to the

warrant requirement. See, e.g., Mancusi v. DeForte,

supra; Katz v. United States, supra. Moreover, in the

only three cases in which the Court has excused a

warrantless search, other than one incident to an arrest

or of a moving vehicle, it emphasized the imperative

nature of the search. See, e.g., Terry v. Ohio, 392 US. 1

(1968) (“‘stop and frisk’ for weapons”); Warden v. Hayden,

supra (hot pursuit); Schmerber v. California, supra (com-

pulsory blood test incident to arrest); but cf. Sibron v.

New York, 392 U.S. 40, 62-66 (1968). Taken as a whole,

these cases indicate that the constitutionality of warrant-

less arrest entries turns on whether they take place under

circumstances of substantial necessity which preclude

recourse to judicial channels.

"For a fuller discussion of this point, see Amsterdam, Perspectives

on the Fourth Amendment, 58 Minn. L. Rev. 349 (1974); Note, The

Neglected Fourth Amendment Problem in Arrest Entries, 23 Stanford

L. Rev. 994 (1971).

13

Recently, in Payton v. New York, No. 78-5420, United

States Supreme Court (April 15, 1980) (Slip Opinion), the

Court considered the constitutionality of New York sta-

tutes authorizing police officers to enter a private resi-

dence without a warrant of any kind to make a routine

felony arrest. It held these statutes unconstitutional, and

specified that an arrest warrant would be required, absent

exigent circumstances, to enter the home of a suspect to

seize him. Specifically not addressed in Payton was the

issue presented here. Nevertheless, in reasoning to its con-

clusion, the Court presented an analysis of the purpose

and development of the Fourth Amendment which leads

inexorably to its conclusion in this case.

The Court noted at the outset that ‘‘the simple language

of the Amendment applies equally to seizures of persons

and to seizures of property.’’ Slip Opinion at 12. It went

on to observe that

As the Court unanimously reiterated just a few

years ago, the “physical entry of the home is

the chief evil against which the wording of the

Fourth Amendment is directed.” United States

v. United States District Court, 407 U.S. 297,

313. And we have long adhered to the view

that the warrant procedure minimizes the dan-

ger of needless intrusions of that sort. Slip

Opinion at 12.

After examining the development of the common law

in respect to a constable’s authority to make warrantless

arrests, and after noting that

The common law sources display sensitivity to

privacy interests that could not have been lost

on the Framers. The zealous and frequent repi-

tition of the adage that a “man’s house is his

castle” was one of the most vital elements of

English liberty. Slip Opinion at 23-24.

14

The Court concluded:

If there is sufficient evidence of a citizen’s par-

ticipation in a felony to persuade a judicial

officer that his arrest is justified, it is consti-

tutionally reasonable to require him to open his

doors to the officers of the law. Thus, for

Fourth Amendment purposes, an arrest warrant

founded on probable cause implicitly carries

with it the limited authority to enter a dwelling

in which the suspect lives when there is reason

to believe that the suspect is within. Slip Opi-

nion at 29,

The holding in Payton was clearly grounded upon a

view that eviuence of a citizen’s participation in a felony,

sufficient to support the ssuance of a warrant for his

arrest, would outweigh tha: person’s interest in maintain-

ing the privacy of his own home, and that the search of

his house is therefore reasonable within the meaning of

the Fourth Amendment. But the authority of such a war-

rant is “limited”. Evidence of a suspect’s involvement

in crime has, of course, no bearing on the reasonable-

ness of an entry to search for him into the home of pre-

sumptively innocent third parties, whose privacy interests

were never considered when the arrest warrant issued.

The United States Courts of Appeals for various cir-

cuits have expressed differing views on this issue. The

Third, Fourth and District of Columbia Circuits have

adopted the language and reasoning of Chambers y.

Maroney, supra, in concluding that police officers may

not, consistent with the Fourth Amendment, enter the

home of third parties in search of a suspected offender

for whom they have a valid arrest warrant, even where

they have probable cause to believe that the suspect will

be found on the premises, unless the search takes place

under exigent circumstances.

In Fisher v. Volz, 496 F.2d 333 (Gd Cir. 1974), the Court

of Appeals addressed the issue which this case presents.

15

Initially, it is worth noting that Fisher, like Wallace v.

King, infra, was a suit under 42 U.S.C. § 1983 against the

Newark police, and not a criminal prosecution in which

the Fourth Amendment issue was raised in the course of

a motion to suppress evidence, as was the case in the

decisions of most other Courts of Appeals considering

this question. The court in Fisher reasoned as follows:

A warrant for the arrest of a suspect may indi-

cate that the police officer has probable cause

to believe the suspect committed a crime; it

affords no basis to believe that the suspect is in

some stranger’s home. Permitting reliance by

the officer solely on exigent circumstances of-

fers too many opportunities for abuse, provides

little comfort to a citizen peacefully in his home,

and affords insufficient protection against in-

vasions of his privacy. A requirement that the

officer must also have probable cause to be-

lieve that the suspect is in the dwelling will not

unduly restrict the effectiveness of the police

action but will reduce the obvious risks of

abuse. 496 F.2d at 341. (Emphasis added.)

The Court held:

[Plolice officers may not constitutionally enter

the home of an innocent citizen in search of a

suspected offender for whom they have a valid

arrest warrant, even under exigent circumstances,

unless they also have probable cause to believe

the suspect will be found on the premises. 496

F.2d at 341-342.

See, also, Government of the Virgin Islands v. Gereau,

502 F.2d 914 (3d Cir. 1974), cert. denied, 420 U.S. 909,

95 S.Ct. 829, 42 LEd.2d 839 (1975).

In United States v. Ford, 553 F.2d 146 (D.C. Cir. 1977),

the Court of Appeals for the District of Columbia Circuit

reviewed its opinions in the last decade dealing with this

16

question and clarified its policy in light of decisions which

had been rendered in the intervening years by other Cir-

cuits. The Court in Ford, citing Chambers v. Maroney,

supra, indicated that the D.C. Circuit has adopted essen-

tially the same view of this issue as have the Third and

Fourth Circuits: that is, that the Fourth Amendment re-

quires both probable cause and exigent circumstances to

justify a warrantless search of third party premises. United

States v. Ford, supra at 159, n.45.

The latest Court of Appeals decision on this point is that

of the Fourth Circuit in Wallace v. King, No. 78-1399

(July 1, 1980).° The Fourth Circuit’s decision in Wallace

was held in abeyance pending this Court’s ruling in Payton

v. New York, supra, and it is the only Circuit decision to

take Payton into account. The Wallaces and their co-

plaintiffs are homeowners in Fairfax County, Virginia,

whose houses were searched by police seeking to appre-

hend a young woman who had failed to appear at a sche-

duled court hearing. In a relatively brief opinion, citing

Fisher v. Volz, supra, and Payton for its authority, the

court held that the defendant police officers could not,

consistent with the Fourth Amendment, enter the home

of third parties in search of a suspected offender for whom

they had a valid arrest warrant, even though the officers

had probable cause to believe that the suspect would be

found in the premises, since the searches in question did

not take place under exigent circumstances.

Other Circuits have approached this issue without directly

ruling on it. All of the Courts of Appeals have agreed that,

at a minimum, there must be probable cause to believe

that a suspect for whom the police have a warrant is within

a particular dwelling before the police may enter it to

search. See, e.g., Rice v. Wolff, 513 F.2d 1280, 1291-1292

‘This case is currently on petition to this Court for wnt of certioran,

as King v. Wallace, No. 80-503.

17

(8th Cir.), reversed on other grounds, sub. nom., Stone v.

Powell, 428 U.S. 465 (1976). In that case, the Court found

that the police did not have probable cause for their search

and it did not reach the issue of urgent need.

Three Circuits have declared that something less than

a showing of both probable cause and exigent circum-

stances can justify warrantless searches of third party

premises. In United States v. McKinney, 379 F.2d 259

(6th Cir. 1967), in the context of a motion to suppress

evidence, the Court held that probable cause to believe

that a fugitive was in a third party’s house authorized

F.B.I. agents with an arrest warrant for the suspect to

search the house for him. The Court in McKinney ap-

pears to have relied upon United States v. Rabinowitz,

supra, in so holding. 379 F.2d at 263, n.3. As was pointed

out above, Rabinowitz was overruled by Chimel v. Cali-

fornia, supra, two years after the decision in McKinney,

395 U.S. at 768. Interestingly, in response to the defen-

dant’s argument in McKinney that exigent circumstances

must also be shown, the Court there made the curious

rejoinder in dictum that “there is good reason to hold

that the issuance of an arrest warrant is itself an excep-

tional circumstance obviating the need for a search war-

rant.” 379 F.2d at 263. Whether that Court would so

hold as a matter of law is not clear.

United States v. Cravero, 545 F.2d 406 (Sth Cir. 1976),

upon which the Court of Appeals in this case relied for

its ruling, involved a Justice Department prosecution of

multiple defendants for conspiracy to import cocaine

and marijuana. The Court, in its initial decision (it ren-

dered a second decision on rehearing), ruled with the

in United States v. Harper, 550 F.2d 610 (10th Cir. 1977),

the Court of Appeals for the Tenth Circuit followed United States v.

Cravero, infra, to hold that where federal drug enforcement agents

had reasonable grounds to believe that a fugitive for whom an arrest

warrant had been issued was staying at a certain address, those

agents lawfully used the arrest warrant to gain entry to the residence.

18

Third and District of Columbia Circuits in holding that

both probable cause and exigent circumstances were

necessary to support a warrantless search of third party

premises. In the course of its first opinion, the Court dis-

cussed the considerations which had led to this conclusion:

A search warrant would be required, in the nor-

mal case and absent some exception, to entera

residence to search for a stolen pet or other ob-

ject seen carried into it. We are unable to see a

distinction valid for Fourth Amendment pur-

poses between entry to search for such an ob-

ject and entry to apprehend a guest. Conse-

quently, logic demands that the rules governing

searches should apply with equal force to an

arrest entry into a third party’s home. If the

policeman has probable cause to believe that a

suspect he wishes to arrest is inside the home,

he can demonstrate this to a magistrate and ob-

tain a search warrant for the suspect. If he fails

to obtain a warrant, then an arrest entry with-

out a search warrant will be permissible only if

exigent circumstances or some other established

exception to the warrant requirement obtains.

Any other result raises the spectre of police

circumvention of the search warrant require-

ment by using an arrest warrant as carte blanche

to search any and every home in which they

can claim probable cause to believe that the

suspect may be concealed. 545 F.2d at 415-

416. (Footnotes omitted.) (Emphasis added.)

On a petition for rehearing, the Court reversed its ear-

lier decision. 545 F.2d 420. The reason for its so doing—

which is not entirely clear from the language of the sec-

ond opinion-involves the panel’s having “overlooked”

prior law in the Fifth Circuit bearing on this issue, which

held that where a police officer has a valid arrest warrant

in his possession, and reasonably believes that its subject

19

is within premises belonging to a third party, he need not

obtain a search warrant to enter for the purpose of ar-

resting the suspect.’

The Fifth Circuit Court of Appeals in Cravero, in its

second opinion in that case, and the Sixth Circuit in

McKinney, failed to take into account the language and

reasoning of this Court in Chambers v. Maroney, supra,

and Chimel v. California, supra, upon which the opinions

of the Third and District of Columbia Circuits are grounded.

None of these courts had the benefit of this Court’s deci-

sion in Payton v. New York, supra. It is important, in any

event, to bear in mind that the precedents followed by

the Court in Cravero employed the discredited “reason-

ableness” test of United States v. Rabinowitz, supra, as

did the Court in McKinney.

The federal agents in this case have insisted upon a

distinction, for Fourth Amendment purposes, between

searching for things and searching for persons subject to

arrest, and have urged that a search warrant is unneces-

sary in the latter class of cases. It is this contention

which, Amici submit, is truly novel. There are two rea-

sons why this purported distinction cannot be squared

with the Fourth Amendment.

First, the invasion of the privacy of a citizen’s home is

unaffected by the object of the policeman’s search. As

this Court pointed out in Payton v. New York, supra, in

responding to the observation of the New York Court of

Appeals that a substantial difference exists in the rela-

tive obtrusiveness of an entry to search for property and

an entry to search for a person:

It is true that the area that may legally be

searched is broader when executing a search

United States v. James, 528 F.2d 999 (5th Cir. 1976), and Rodriguez

v. Jones, 473 F.2d 599 (Sth Cir.), cert. denied, 412 U.S. 953 (1973).

20

warrant than when executing an arrest warrant

in the home. See Chimel v. California, supra.

This difference may be more theoretical than

real, however, because the police may need to

check the entire premises for safety reasons,

and sometimes they ignore the restrictions on

searches incident to arrests.

But the critical point is that any differences in

the obtrusiveness of entries to search and en-

tries to arrest are merely ones of degree rather

than kind. The two intrusions share this funda-

mental characteristic: the breach of the en-

trance to an individual’s home. The Fourth

Amendment protects the individual’s privacy in

a variety of settings. In none is the zone of pri-

vacy more clearly defined than when bounded

by the unambiguous physical dimensions of an

individual’s home-a zone that finds its roots in

clear and specific constitutional terms: “The

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

..Shall not be violated.” (Emphasis added.)

Slip Opinion at 16.

When a homeowner is subjected to a warrantless search,

it does not soothe his outrage nor lessen the gravity of

the invasion of his privacy to know that the search is for

a suspected misdemeanant rather than for some piece of

property. The Fourth Amendment protects the citizen’s

right of privacy; an invasion of that right is not eased by

the presentation of an arrest warrant for a stranger.

Second, the Fourth Amendment preference for judi-

cial rather than police determinations of probable cause

for searches of homes is no less forceful because the in-

tended search is for persons rather than for things.’ The

I As this Court pointed out in Coolidge v. New Hampshire, 403

U.S. 443 (1971), police entry into a home to effect an arrest is “a

very substantial intrusion.” 403 U.S. at 477.

21

requirement of a search warrant is no mere formality. It

reflects the important Fourth Amendment policy that

“the informed and deliberate determinations of magis-

trates empowered to issue warrants...are to be preferred

over the hurried actions of police officers....” United

States v. Lefkowitz, supra, at 464. The Fourth Amend-

ment commands that judicial officers rather than police

officers make the determination that there exists prob-

able cause for the search of a particular home. In doing

so, the Amendment neither makes nor supports a distinc-

tion between searches for persons and searches for ob-

jects.

Once it is grasped that the issuance of an arrest war-

rant is unrelated to any judicial determination that an

accused is at a given place, it becomes evident that the

legality of the search for the person named in the war-

rant is to be determined by established principles. An

arrest warrant embodies a judicial determination that

there exists probable cause for the arrest of the person

named therein; it reflects no judgment whatsoever on

the issue of where the suspect may be found. The deter-

mination of a judge or a magistrate that there is probable

cause to arrest a particular individual does not satisfy

the Fourth Amendment requirement that, absent exigent

circumstances, a search of particular premises must be

based upon the determination of a judge or magistrate

that there is probable cause to believe that the object of

the search is within the premises to be searched.

Arule such as the one advocated by defendants, which

would dispense with the search warrant requirement,

simply cautioning a police officer not to enter dwellings

without probable cause, offers only illusory protection.

The manner in which most police departments maintain

records of their warrantless searches and seizures sug-

gests that there are no records available to them compar-

able to the sworn statement of facts known to an officer

22

and asserted to justify that officer’s belief that the object

of his search is in a stated premises, such as would be

required to obtain a search warrant. See Aguilar v. Texas,

378 U.S. 108 (1964). With no adequate record of the

basis for the policeman’s actions, there is scant likeli-

hood that those actions could be reviewed effectively by

a court, or even by the policeman’s superior officers,

were they so inclined. Arule such as the one the police

advocate truly leaves the privacy of each citizen’s home

“in the hands of every petty officer.”

A rule allowing warrantless searches for persons has,

moreover, an enormous potential for abuse by police

seeking to nullify the requirement of a warrant to search

for goods. Arule such as this will surely tempt the police

(and there is evidence in this case that the officers did so)

to search for contraband under the guise of a search for

a person. Jones v. United States, supra, involved just that

problem, and the majority and dissenting opinions illus-

trate the difficulty courts will have in sorting out the of-

ficer’s motives when police search without warrants

naming the place to be searched. This rule also facili-

tates selective and discriminatory disregard of the prob-

able cause standard, as for example, where the police

consider the crime particularly heinous, or where the

homes to be searched belong to less privileged citizens

or to people who are politically unpopular. Dombrowski

v. Pfister, 380 U.S. 479 (1965); Lankford v. Gelston, 346

F.2d 197 (4th Cir. 1966).

The search warrant rule is not blind to the exigencies

of day-to-day police practice. Exceptional circumstances,

such as “hot pursuit”, or actual sight of a felon in the

premises, are recognized as justifying failure to obtain a

search warrant. But mere delay or inconvenience to

police officers has never excused the necessity of obtain-

ing a search warrant. Johnson vy. United States, supra, at

15.

23

If the basic policy of the Fourth Amendment is to be

served, then the citizen’s right of privacy in his home must

be protected by a requirement that police officers obtain

warrants, under oath and upon a showing of probable

cause, ‘‘particularly describing the place to be searched’’

before entering the homes of presumptively innocent third

parties. The Amendment literally specifies that this be

done, and the reasoning of this Court’s decisions sup-

ports such a conclusion. Dispensing with this requirement

would bring into being precisely the relationship between

citizens and their government that the Framers drafted the

Amendment to avoid. ‘‘Zealous officers’’ engaged in

‘*the often competitive enterprise of ferretting out crime,”’

in Justice Jackson’s words, could routinely decide without

the intervention of any judicial officer when the privacy

of a citizen’s home is to be violated. A similar state of af-

fairs led to the enactment of the Fourth Amendment, and

if history and experience teach us anything, it is that the

mistakes of the past should not be repeated.

CONCLUSION

For the foregoing reasons, the judgment below should

be reversed.

Respectfully submitted,

JOHN McNALLY*

Murphy, McGettigan,

McNally & West, P.C.

921 King Street

Alexandria, Virginia 22314

(703) 549-5353

*Admitted to Supreme Court Bar December 1, 1980

24

CHARLES S. SIMS

American Civil Liberties

Union Foundation

132 West 43rd Street

New York, New York 10036

(212) 944-9800

Attorneys for Amici Curiae

November 20, 1980

e?