Petition — King v. Wallace

/ | { Supreme Court y

FILE 2

80-503

EP 29 1989

IN THE MICHAEL RODAK, JR, MER

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

No.

RICHARD A. KING,

ROBERT A. LAWRENCE,

CARLA L. HELWIG,

RALPH L. GARDNER,

WILLIAM J. WOODILL,

RICHARD J. REEDER,

FRANK SCOTT,

Petitioners,

v.

ELDRED S. WALLACE,

JEANNIE R. WALLACE,

JOHN R. DEBIASE,

ELIZABETH C. DEBIASE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DAVID T. STITT

County Attorney

ROBERT LYNDON HOWELL

PETER D. ANDREOLI, JR.

Assistant County Attorneys

4100 Chain Bridge Road

Fairfax, Virginia 22030

Telephone: (703) 691-2421

September 29, 1980 Counsel of Record

for Petitioners

QUESTION PRESENTED

Whether police officers may attempt to execute an

arrest warrant by entering and searching the home of a

third party for the person named in the arrest warrant

when the police officers reasonably believe the person

named in the warrant is on the premises, absent other

exigent circumstances or consent of the homeowners.

INDEX

Question Presented

Opinions Bel

/ / , a9. ee se. ol eae ae

Constitutional Provisions Involved. .......

Statement of the Case. *

Reasons for Granting the Writ

I. The Decision Below Directly

Conflicts with the Decisions of

Other Courts of Appeals as to

Authority of Police Officers to

Enter Third Party Homes to

Execute Arrest Warrants. ........

Il. The Decisions Below Will Have a

Serious Impact on the Activities of

Law Enforcement Officers.

Conclusion 7 * * o * * * * * 7 * * * . * * * *

Appendix

Memorandum Opinion and Order of the

United States Distriet Court for the

Eastern District of Virginia

opinion of the United States Court of

Appeals for the Fourth Cireut.

10

ii Index Continued

TABLE OF CITATIONS

CASES: Page

Michael v. United States

393 F.2d 22 (0th Cir. 1968) „ ae

Rodriguez v. Jones

gf Fd 589 (Sth Cir),

cert. denied, 412 U.S. 953 (1973) 7, 10

United States v. Brown 3

~~ 467 F.2d 419, (D.C. Cir. 19727). 10

United States v. Cravero

545 F.2d 406 (Sth Cir. 1976),

cert. denied, sub. nom.

Cook v. E

750 b. 8. 983 TT TFT

United States v. 5

550 F.2d 610 Gott Sb. 1977)

ese %% 6 0 7, 9

United States v. James

528 F.2d 999 (5th ir. 1970))) 7

United States v. McKinn

379 F.2d 259 (6th Cir. t 7, 9, 10

United States v. P

593 F.2d 553 (4th „„ .

United States v. Woods

560 F.2d 660 (5th Cir. 1977) . 7

iii Index Continued

POSITIVE LAW:

United States Constitution,

Fourth Amendment

United States Constitution,

Fourteenth Amendment, Section] . ....., .

28 U.S.C.$1254) .........

%%

. A

. — kw 6 es

RULES:

U. S. Sup. Ct. Rule 19(IXb) . . .

Page

> 2 NO Cw

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

No.

RICHARD A. KING,

ROBERT A. LAWRENCE,

CARLA L. HELWIG,

RALPH L. GARDNER,

WILLIAM J. WOODILL,

RICHARD J. REEDER,

FRANK SCOTT,

Petitioners,

v.

ELDRED S. WALLACE,

JEANNIE R. WALLACE,

JOHN R. DEBIASE,

ELIZABETH C. DEBIASE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TO: The Honorable Chief Justice and Associate

Justices of the Supreme Court of the United

States:

Petitioners, Richard A. King,” et gl, by and through

their counsel, respectfully pray that a writ of certiorari

Petitioner King was and is the Chief of the Fairfax

ounty Police Department. The remaining Petitioners

were Fairfax County police officers at all relevant

times.

. 2

issue to review the judgment and opinion of the United

States Court of Appeals for the Fourth Circuit entered

in this proceeding on July 1, 1980.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fourth Circuit, not yet reported, appears in the

Appendix hereto. The memorandum opinion and order of

the United States District Court for the Eastern district

of Virginia, not yet reported, appears in the Appendix

hereto.

JURISDICTION

The judgment of the Court of Appeals for the Fourth

Circuit was entered on July 1, 1980, and this petition for

certiorari was filed within ninety (90) days of that date.

This Court's jurisdiction is invoked under 28 U.S.C.

§ 1254()).

Sy Sa

‘ 3

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution

Amendment IV

[Security from Unwarrantable Search and Seizure]

The right of the peuple 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

siezed.

Amendment XIV

2 Section l.

[Citizenship Rights Not to Be Abridged by States]

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the state wherein they reside.

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.

4

STATEMENT OF THE CASE

This case arises out of two attempts by various

Fairfax County police officers to execute a capias

(bench warrant) for the arrest of Susan Wallace Swain,

the daughter of respondents Eldred S. and Jeannie R.

Wallace, and a close friend of respondents John R. and

Elizabeth C. DeBiase. The capias had been issued in

Mrs. Swain's divorce suit as a result of her failure to

obey a court order. The police officers attempted to

execute the arrest warrant on Susan Swain at the home

of her parents, the Wallaces, on October 6, 1976, and at

the home of the DeBiases, on November 10, 1976. In

both instances, the police officers had probable cause to

believe that Susan Swain was in the premises to be

searched (App., p. 4). Susan Swain was not found on

either occasion.

Respondents Wallace filed their complaint on

October 5, 1977 in the United States District Court for

the Eastern District of Virginia seeking damages and

declaratory and injunctive relief against petitioners.

The complaint alleged jurisdiction under 28 U.S.C. § 1331

and 1343, as authorized by 42 U.S.C. § 1983, and asserted

that the searches on October 6, and November 10, 1976

violated the rights of respondents under the fourth and

5

fifth amendments to the United States Constitution as

applied to the states through the due process clause of

the fourteenth amendment. An amended complaint was

filed on October 19, 1977 adding respondents DeBiase as

plaintiffs. Both sides filed motions for summary judg-

ment. Judge Oren R. Lewis issued a memorandum

opinion and order (App., p. D on May 3, 1978 granting

petitioners’ motions for summary judgment and dis-

missing the case as to all parties. The District Court

held that an arrest warrant provides authority for police

officers to enter any premises for the purpose of exe-

cuting the warrant if the officer has probable cause to

believe the person named in the warrant is on the

premises. The Court found that the police officers had

both a valid arrest warrant for Susan Swain and probable

cause to believe that Susan Swain was on the Wallaces'

and DeBiases' premises.

Respondents appealed the decision to the United

States Court of Appeals for the Fourth Circuit. The

Fourth Circuit heard argument in February 1979 and

reargument in October 1979. On July 1, 1980 the Fourth

Circuit in a two to one decision affirmed in part and

reversed in part. The Court ruled that no damages

should be awarded against the petitioners as they had

acted in good faith. However, the Court further ruled

6

that the respondents were entitled to declaratory and

injunctive relief and remanded the case for the entry of

an appropriate order.

REASONS FOR GRANTING THE WRIT

I. The Decision Below Directly Conflicts with the

Decisions of Other Courts of Appeals as to

Authority of Police Officers to Enter Third

Party Homes to Execute Arrest Warrants.

The police offlecrs in the instant case were in

possession of a valid capias (hereinafter "arrest war-

rant") issued by a judge of the Circuit Court of Fairfax

County for the arrest of Susan Swain. When the police

officers attempted to execute the arrest warrant at the

homes of the Wallaces and the DeBiases, they had

probable cause to believe that Susan Swain was on those

premises.

The Fourth Circuit ruled that a search warrant was a

constitutional prerequisite to every search of the

premises of a third person for a person named in an

arrest warrant, absent consent of the owner or occupier

or other exigent circumstances. This would be so even if

the police officers had probable cause to believe the

person named in the arrest warrant was on the premises.

The decision below is in direct conflict with the

decisions of the United States Courts of Appeal for the

7

Fifth, Sixth, and Tenth Circuits, which have found that

all that is needed by a police officer to enter and search

a third party's home for a person named in an arrest

warrant is the arrest warrant itself coupled with a

reasonable belief (probable cause) that the person named

in the warrant is on the premises. United States v.

Woods, 560 F.2d 660 (5th Cir. 1977); United States v.

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

Cravero, 545 F.2d 406 (Sth Cir. 1976), cert. denied, 430

U.S, 983 (1977); United States v. James, 528 F.2d 999

(Sth Cir, 1976); Rodriguez v. Jones, 473 F.2d 599 (Sth

Cir. 1973); United States v. McKinney, 379 F.2d 259 (6th

Cir. 1967).

In Cravero, federal agents observed Chandler and

Cravero, for whom arrest warrants were outstanding,

and a third appellant, Willets, at a restaurant. The

agents followed them to the home of a fourth appellant,

Cook, and placed the house under surveillance. When

other agents arrived with the warrants for Chandler,

Cravero and a third man named Troise, the agents went

up to the door, knocked, and announced they had arrest a

warrants. Cook opened the door and after a short

exchange, warned the others. The agents immediately

entered. Cravero was arrested in the living room.

Chandler was arrested at the door of the master bed-

room. As Chandler was arrested and disarmed, the

Pa ee — a ee a nnn...

8

agents heard noises coming from an adjacent bathroom.

Cook objected, but the agents, believing Troise was

inside, entered and observed Willets, along with cocaine

powder and paraphernalia used in the processing of

narcotics, in plain view. After checking the shower stall

unsuccessfully for Troise, the agents seized the cocaine

and paraphernalia. 545 F.2d at 412-413.

Cook, Chandler, Cravero and Willets challenged the

seizure urging, inter alia, that absent exigent cireum-

stances, police could not execute arrest warrants at the

" residence of a third party not named in the warrants

even if there was probable cause to believe the subjects

of the warrants were on the premises. 545 F.2d at 413.

The panel initially eld that the entry by the agents was

iMegal, but justified the seizure as incident to legal

arrests pursuant to warrants. 545 F.2d at 44-418. On

peti..ons for rehearing and petitions for rehearing en

banc, the portion of the opinion holding the entry illegal

was withdrawn. The court noted that the lew of the

Fifth Circuit, which the panel opinion had ignored, was

that "when an officer holds a valid arrest warrant and

reasonably believes that its subject is within premises

belonging to a third party, he need not obtain a search

warrant to enter for the purpose of arresting the

suspect." 545 F.2d at 421. (Citations omitted.) The

court noted that the reasonableness of the officer's

judgment is always subject to judicial review.

9

Confronted with the same issue in McKinney, the

Sixth Circuit reached the same conclusion. 379 F.2d at

263. The Sixth Circuit opined that the issuance of an

arrest warrant itself is an exceptional circumstance

obviating the need for a search warrant. The magis-

trate's determination that there was probable cause to

believe that the named party had committed an offense

combined with the inherent mobility of the suspect

justifies the search for the suspect, provided the

authorities reasonably believed he could be found on the

premises.

In Harper, the Tenth Circuit upheld the seizure of

marijuana and heroin observed in plain view during a

search for the subject of an arrest warrant in a third

party's home where there were reasonable grounds for

believing the subject was present. 550 F.2d 610, 613.

In the instant case, the petitioners had both a valid

arrest warrant and probable cause to believe Susan Swain

was on the respondents’ premises. Applying the rule in

Cravero, McKinney, and Harper, their entry and search

for the suspect was clearly authorized. The Fourth

Circuit's opinion is clearly in conflict with those of the

Fifth, Sixth and Tenth Circuits.

Petitioners submit that this conflict justifies the

grant of certiorari to review the judgment below. Rule

19(1Xb).

10

I. The Decision Below Will Have a Serious Impact

on the Activities of Law Enforcement Officers.

As Judge Hall observed in his dissenting opinion

(App., p. 18), it has long been established that the

constitution permitted a law enforcement officer to

enter a dwelling to execute an arrest warrant if such

officer reasonably believed that the person named in the

~ “warrant was on the premises. United States v. Phillips,

593 F.2d 553 (4th Cir. 1978); Rodriguez v. Jones, 473

F.2d 599, 604-06 (Sth Cir.), cert. denied, 412 U.S. 953

(1973); United States v. Brown, 467 F.2d 419, 423 (D.C.

Cir. 1972) (Mr. Justice Clark); United States v. Cravero,

545 F.2d 406, 421 (Sth Cir. 1976), cert. denied, sub. nom.

Cook v. United States, 430 U.S. 983 (1977); United States

v. McKinney, 379 F.2d 259, 262-63 (6th Cir. 1967);

Michael v. United States, 393 F.2d 22, 32 (10th Cir. 1968).

If the decision below is allowed to stand, law enforce- _

ment officers will only be able to make such an entry

and search for the person named in the warrant when the

owner gives his consent or some other exigent circum-

stance exists. However, the Fourth Circuit itself is

unclear as to what would constitute an "exigent circum-

stance" which would be an appropriate exception to the

requirement for a search warrant in addition to the

arrest warrant. (See App., p. 15.)

If the Fourth Circuit has difficulty determining when

a search warrant is not required, it is obviously much

11

more difficult for a law enforcement officer to make

such a determination. The effect of the decision below

will be to require law en“ reement officers to obtain a

search warrant before attempting to serve an arrest

warrant on third party premises in virtually all cases.

Furthermore, as is indicated by the cases and

authorities cited on page 7, supra, the decision below is

contrary to long-standing, prevailing judicial interpre-

tation of the fourth amendment as it applies to execu-

tion of arrest warrants. Petitioners submit that a

decision which would have such an impact on the activ-

ities of law enforcement officers in this country and

which effects such a significant reinterpretation of the

fourth amendment should come only from this Court. If,

as petitioners contend, and as the Courts of Appeal for

the Fifth, Sixth, and Tenth Circuits have held, that this

requirement is not mandated by the fourth amendment,

only this Court can provide the necessary relief.

2 1

22

— ~ e

7%

12

CONCLUSION

For these reasons, a Writ of Certiorari should issue to

review the judgment and opinion of the Fourth Circuit.

September 29, 1980

00

fe) LY W

Assistant County Attorney

Kettle bott ge

. 9 7

Assistant County Attorney

4100 Chain Bridge Road

Fairfax, Virginia 22030

Telephone: (703) 691-2421

APPENDIX

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

ELDRED S. WALLACE, et al.,

Plaintiffs,

CIVIL ACTION No.

V.

RICHARD A. KING, et al., 77 77-A

Defendants.

MEMORANDUM OPINION AND ORDER

The plaintiffs brought this 1983 suit against the

named policemen-defendants seeking declaratory and

injunctive relief and compensatory and punitive damages

resulting from their attempt to execute a capias for the

arrest of Susan Swain at their homes.

The plaintiffs say that the police must obtain a

search warrant before entering and searching private

premises to arrest a person on a capias even if they have

probable cause to believe that the person named in the

capias is on the premises, in the absence of consent or

exigent circumstances.

The defendants rely upon the defense of good faith

and probable cause.

2

The case is before the Court on cross-motions for

summary judgment.

The material facts are not in dispute — most of

which were stipulated.

The Fairfax County Police had a capias for the arrest

of Susan Swain issued by a judge of the Circuit Court of

Fairfax County, Virginia.

They were told by James Swain that Susan could be

found at her parents' (the Wallaces) home, 8808 Badger

Drive — that she stayed there from time to time and

that her car, a blue Nova, was parked in the driveway —

they were also told she might leave through the back

door if she saw someone approach the front door.

Upon receiving this information, Sergeant Wilson

directed Officers Lawrence and Helwig to go to the

Wallace residence and execute the capias.

Upon arriving at the residence, Officers Lawrence

and Helwig were met by Mr. Swain and another party,

who advised them that Susan Swain was in the house at

that time.

Whereupon the officers knocked on the front door and

told the person answering (later learned to be Eldred

S. Wallace) that they had a capias for the arrest of Susan

Swain, and asked if they could come in. Mr. Wallace

invited them into the living room and told them that

Susan was not there — that she did not live there

anymore, and that if she was, he would not tell them.

3

Officer Lawrence and Mr. Wallace remained in the

living room discussing whether or not the pulice had a

right to search his home on a capias — the policeman

assured him that they did — while the men were talking,

Officer Helwig walked back to the kitchen bar where

Mrs. Wallace was standing and asked if she could look

around — when Officer Lawrence told her to go ahead

and look around, Officer Helwig looked in the open

rooms off the hallway — Mrs. Wallace went along and

opened several of the closed doors and turned on the

lights at Officer Helwig's request and showed her where

ner daughter used to stay. She also told the officer that

her daughter got mail at their house but that she did not

know where she was then living.

Neither officer looked into the closets, the attic, or

the basement. They did not find Susan.

Several days later another Fairfax County officer

went by the Wallace residence looking for Susan. When

told by the father that she was not there, the officer

drove on after perfunctorily looking around the yard.

Later, two other Fairfax County police officers went

to the DeBiase residence to execute the said capias —

they knocked on the front door, told Mr. DeBiase that

they had a capias for the arrest of Susan, and asked if

they could come in. Thefy] were invited in but told that

Susan was not there and Mrs. DeBiase asked if they had a

search warrant. They told her "no", they had a capias

4

which authorized them to search the premises if they

had reasonable grounds to believe that Susan was there —

while this brief discussion was going on, one of the

officers turned on his flashlight and started to look

around when Mrs. DeBiase turned on the lights so he

could see. She said she didn't want him to fall down and

get hurt. The officers left after a brief look around

without finding Susan.

The police went to the DeBiase home because they

received another call from Mr. Swain that he had

followed Susan to the DeBiase residence and had seen

her go into the house.

A police officer has the duty of arresting the person

named in the capias wherever she be found in his

bailiwick and that includes upon her premises or the

premises of a third person if the arresting officer has

reasonable belief or probable cause to believe that the

person named in the capias is on the premises. See 5

Am. Ir. 2d, § 86, p. 774, and Restatement of Torts, 2d,

§ 204. Also, United States v. McKinney, 379 F2d 259 (6th

Cir. 1967), and United States v. Cravero, 545 F2d 406

(Sth Cir. 1976).

As early as 1925, the Supreme Court of the United

States, in Agnello v. United States, 269 US 20, stated,

"that an entry to execute an arrest warrant is an

exception to the requirement of a search warrant to

enter a home". See, also, United States v. Rabinowitz,

339 US 56 (1950).

5

Also, see United States v. Brown, 46 F2d 419 (D.C.

Cir. 1972), where Mr. Justice Clark, sitting by designa-

tion, held that an arrest warrant provides authority for

officers to enter any premises for the purpose of

executing and enforcing the warrant if the officers have

probable cause to believe the person named in the

warrant is located in the premises.

The Court finds the officers had reasonable and

probable cause to believe that Susan Swain was at the

Wallace and DeBiase homes on the day in question —

they knew she stayed at her parents“ home on occasion

and that the DeBiases were her close friends — the

automobile she was known to drive was seen in the

Wallace yard when they arrived to execute the capias

and they were toll by James Swain and another that she

was seen entering the house on the day in question.

Further, the searches here made, if not consensual,

which the Court finds them to be, were not unreasonable

— it is undisputed that the officers were invited in both

houses and that the women turned on the lights and/or

opened some of the doors so that the officer might

better see that Susan was not hiding in any of the rooms

— the search, if you call i[t] that, was a perfunctory look

or walk-around, after having been invited in by the

owners of the premises.

Although the police officers enjoy no immunity from

suit, they may avail themselves of good faith and

6

‘probable cause in a 1983 action. Pierson v. Ray, 386 US

547. This is an affirmative defense which may be

properly raised before a jury, i.e., summary judgment

may be rendered if the pleadings and affidavits show

there is no genuine issue as to any material fact. The

moving party is entitled to judgment as a matter of law.

Federal Rules of Criminal Procedure 56(c). When a

motion for summary judgment is properly supported by

affidavits (depositions), the adverse party may not rest

upon the mere allegations of his pleadings but must set

forth specific facts showing that there is a genuine issue

for trial. See Kipps v. Ewell, 538 F2d 564 (4th Cir. 1976).

There being no genuine issue for trial in this case, the

defendants' motion for summary judgment ought to be

granted and this case DISMISSED as to all parties, and

It Is So Ordered.

The Clerk is directed to send copies of this Memo-

randum Opinion and Order to all counsel of record.

May 3, 1978. /s/ OREN R. LEWIS, United States

Senior District Judge

—

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 78-1399

Eldred S. Wallace and Jeannie R.

Wallace, John R. DeBiase

and Elizabeth C. Debiase, Appellants,

v.

Richard A. King, Chief,

Fairfax County Police

Department, Robert A.

Lawrence, Carla L. Helwig,

Ralph W. Gardner, William J.

Woodill, Richard H. Reeder,

Frank Scott, Appellees.

Appeal from the United States District Court for the

Eastern District of Virginia, at Alexandria

Oren L. Lewis, District Judge

Reargued: October 4, 1979 Decided: July 1, 1980

Before HALL and PHILLIPS, Circuit Judges

and THOMSEN“, Senior District Judge

John McNally (Murphy, McGettigan, McNally & West;

Jonathan Shapiro, Zwerling . & Shapiro; Stephen W.

Bricker, American Civil Liberties Union of Virginia on

brief) for Appellants; Jack B. Stevens (Howard, Stevens,

Lynch, Cake & Howard, P.C. on brief) for Appellees.

*Of the District of Marylend, sitting by designation.

8

THOMSEN, Senior District Judge

Plaintiffs/appellants are two married couples whose

residences were briefly searched without search war-

rants by local police officers seeking to apprehend a

woman named in a valid arrest warrant.. She was being

sought in connection with her refusal to obey a court

order in a domestic relations matter involving the

custody of her infant child.

Plaintiffs filed suit under 42 U.S.C. § 1983 against the

officers who conducted the searches and the chief of the

Police Department of Fairfax County, Virginia, seeking

money damages as well as declaratory and injunctive

relief. They sought to have the district court declare

unconstitutional a longstanding, unwritten policy of the

department which authorized police officers to search

any place without a search warrant when they had a

reasonable belief that a person named in an arrest

warrant would be found there. Following extensive

discovery the district court entered summary judgment

for defendants on all claims. Plaintiffs appealed.

After hearing argument in February 1979 and re-

argument in October 1979, we withheld decision of these

appeals pending a decision of the Supreme Court in

Payton v. New York and Riddick v. New York, in which

probable jurisdiction had been noted on December ll,

1978 (439 U.S. 1045), oral argument had been heard and

the case set for reargument (44] U.S. 930). The re-

argument resulted in four opinions filed on April 15, 1980,

U.S. , 48 U.S.L.W. 4375.

Payton involved an entry by the police officers into

the home of a person suspected of a felony, when the

police had obtained neither an arrest warrant nor a

search warrant. The Court held that the Fourth

Amendment, made applicable to the States by the Four-

teenth Amendment, prohibits the police from making a

_ warrantless and nonconsensual entry into a suspect's

home, in the absence of exigent circumstances, in order

to make a routine felony arrest.

L

This case arises from the unsuccessful attempts of

various Fairfax County police officers to execute a

bench warrant for the arrest of Susan Wallace Swain,

which had been issued in connection with Mrs. Swain's

divorce suit as a result of her failure to appear in court

with her infant child. Plaintiffs Eldred and Jeannie

Wallace are Mrs. Swain's parents and reside in Fairfax

County. Plaintiffs John R. and Elizabeth C. DeBiase are

friends of the Wallaces who aiso reside in Fairfax

County, some distance away from the Wallace residence.

10

A. Search of the Wallace Home

The Wallaces are in their mid-fifties. Mr. Wallace is

a long-term civil service employee of the Department of

the Army; Mrs. Wallace is a housewife. Mrs. Swain had

not lived with the Wallaces for a number of years but

occasionally stayed with them when problems arose with

her husband.

On October 6, 1976, the Fairfax police received a

phone call from Mrs. Swain's estranged husband. He

informed them that Mrs. Swain was at her parents’ home

and, upon meeting two officers at the residence, identi-

fied a car parked outside as belonging to his wife. The

car was actually licensed in the Wallaces' name.

At approximately 8:30 p.m. Officers Robert

Lawrence and Carla Helwig were admitted into the

Wallace residence, without demur. Officer Lawrence

announced that he wanted to search the home for

Mrs. Swain because he had a bench warrant for her

arrest and had information indicating that she was on the

premises. Mr. Wallace asked the officers if they had a

search warrant for his home. One of the officers

responded that the arrest warrant itself was sufficient

authority for the search.

The search was a walk-through which took only a few

minutes. Mrs. Wallace showed Officer Helwig various

rooms and closets and, at Officer Helwig's request,

opened doors and turned on lights as the two went

through the house.

*

11

Both officers concede that they had ample time to go

to a magistrate and secure a search warrant. They knew

that the arrest warrant for Mrs. Swain arose from a

domestic relations matter involving the welfare of a

young child, but they had not been advised of any urgent

or dangerous circumstances requiring immediate arrest.

The parties dispute whether the officers were hostile

in conducting the search. The Wallaces claim that the

emergency lights on the officers' vehicle were flashing

outside during the incident, but the police deny this.!

Mr. Wallace claims that his asthmatic condition was

aggravated by the search and attendant circumstances,

causing him to miss work the following day.

B. Search of the DeBiase Home

About one month after the Wallace home was

searched, on November 10, 1976, the Fairfax police were

again contacted by Mr. Swain. He telephoned the police

station to complain that the department was dilatory in

locating his wife and baby. He left a number where he

could be reached; Sergeant Frank Scott telephoned the

number and talked with a man identifying himself as

Mr. Swain.

Swain informed Scott that he had seen his wife enter

the DeBiase residence. (The police had previously made

Even if the lights were flashing, that does not show

hostility on the part of the officers.

12

inquiry about Mrs. Swain at this residence three days

after the Wallace home was searched, but made no

attempt to search the DeBiase home at that time.)

Sergeant Scott had informatic.. on a note from another

police officer indicating there was some reason to

suspect that Mr. Swain was using the department to

harass people in the county. Scott confronted Swain

with this allegation and informed him that, if it were

true, Scott would seek legal action against him. Swain

denied the allegation and, without further inquiry, Scott

ordered the DeBiase residence searched.

At about 6:00 p.m. Officers William Woodill and

Ralph Gardner arrived at the DeBiase home. Mrs. De-

Biase, a fifty-three year old housewife, and her

daughter were home at the time. They saw the police

outside and Mrs. DeBiase went to the door as the

officers knocked. They stated they would like to ask her

some questions and she invited them inside. Officer

Gardner then stated that the department had informa-

tion that Mrs. Swain might be living there; Mrs. DeBiase

denied this and asked who had supplied such information.

Gardner identified Mr. Swain as the source and then

stated that he wanted to search the house. Apparently

Mrs. DeBiase did not question Mr. Swain's reliability,

but, with knowledge of the earlier search of the Wallace

residence, she objected to the search and demanded to

see a search warrant. She was told that the arrest

warrant was sufficient authority for the search.

13

Mrs. DeBiase claims that during the search two

cruisers and a paddy wagon were parked outside with

lights flashing (see n. supra) and that her pre-existing

stomach ulcer was aggravated by the search and

attendant circumstances, causing her to seek medical

treatment.

Il.

Plaintiffs argue that the department's policy, which

authorized officers to search any place without a search

warrant when they had a reasonable belief that a person

named in a valid arrest warrant might be found there,

contravened the "particularity" requirement of the

fourth amendment and undercut the rationale upon which

fourth amendment jurisprudence is founded. The

primary abuse which the fourth amendment was intended

to eliminate was the dreaded general warrant which

authorized indiscriminate searches of whole neighbor-

hoods; plaintiffs herein contend that if the police alone

may decide whether any particular place will be

searched, the potential for this abuse is facilitated. See

Lankford v. Gelston, 364 F.2d 197 (4 Cir. 1966).

In United States v. Phillips, 593 F.2d 553 (4 Cir.

(1978), the premises searched had been a regular

rendezvous used by members of a narcotics distribution

ring in furtherance of their unlawful activities; this

court held that under the facts of that case "the agents

14

were entitled to obtain entry, especially when armed

with arrest warrants, despite the absence of a search

- warrant," in order to make a criminal arrest. The

opinion cited and quoted with approval passages from

Rodriguez u: Jones, 473 F.2d 599, 606 (5 Cir.), cert.

denied, 412 U.S. 953 (1973), including quotations from the

Restatement (Second) of Torts. |

The issue presented by the instant case — whether a

search warrant is a constitutional prerequisite to every

search for a person named in an arrest warrant on the

premises of a third person — has not been decided by the

Supreme Court or by this Circuit. In Payton the Court

noted that neither of the cases before it "raises any

question concerning the authority of the police, without

either a search or arrest warrant, to enter a third party's

home to arrest a suspect." _—s—sCdU.S. at 48

U.S.L.W. at 4378. However, much of the discussion in

the majority opinion bears on the proper answer to the

question presented in this case, which we specifically

refrained from deciding in Lankford.

As the Court noted in Payton, the circuits have not

been uniform in their approach to the problem presented

by the instant case. Compare United States v. Brown,

467 F.2d 419, 423 (D.C. Cir. 1972), and United States v.

McKinney, 379 F.2d 259, 263 (6 Cir. 1967), with United

States v. Ford, 553 F.2d 146, 159 n.45 (D.C. Cir. 1977),

Fisher v. Volz, 496 F.2d 333, 341-43 (3 Cir. 1974),

Government of the Virgin Islands v. Gereau, 502 F.2d

15

914, 928 (3 Cir. 1974), and United States v. Cravero, 545

F.2d 406, 415, 421 (5 Cir. 1976). Common to all those

opinions, however, is the requirement that, for the

search to be constitutionally valid, not only must the

officers have probable cause to believe the person named

in the arrest warrant is on the premises of the third

person, but there must also exist an appropriate excep-

tion to the warrant requirement, e.g., consent of the

owner or occupier of a dwelling unit or exigent circum-

stances, which did not exist in this case. It is not

practical, in this opinion, to list all the circumstances

which may justify such entry. Exigent circumstances

may properly include hot pursuit or justifiable fear of

injury to persons or property if the arrest is delayed.

Whether the entry sought to be made is in an area where

a magistrate is or is not readily available, and whether

another officer is available to keep watch on the

premises while an officer seeks a search warrant, are

among the factors which may be considered in appropriate

cases. The nature of the premises sought to be entered

and whether the officers have reasonable cause to

believe that the subject of the arrest warrant owns or

resides therein are other factors. Reasonable or

probable cause to believe that a person for whom an

arrest warrant has been issued is on the premises,

standing alone, is not sufficient. Although Payton held

that an arrest warrant requires that a suspect "open his

doors to the officers of the law," that holding was

—

16

specifically limited to the "dwelling in which the suspect

lives." U.S. at 48 U.S. L. W. at 4383. An

arrest warrant indicates only that there is probable

cause to believe the suspect committed a crime; it

affords no basis to believe that the suspect is in a

stranger's house. Fisher X. Volz, 496 F.2d at 34L

In june tive and declaratory relief should be issued by the

district court in conformity with the principles stated

herein.

On the other hand, law enforcement officers should

not be held personally liable for monetary damages

because they have followed the policy or instructions of

their superiors, where the controlling law had not been

authoritatively decided by the Supreme Court, the

appropriate United States Court of Appeals, or the

highest court of the state, where the officers have acted

in good faith, and where the searches were conducted in

a reasonable manner, as shown by the evidence in this

case. Insofar as the judgment below absolved the

defendants from monetary liability to the plaintiffs, it

should be affirmed.

AFFIRMED IN PART, REVERSED

IN PART, AND REMANDED FOR

THE ISSUANCE OF DECLARA-

TORY AND INJUNCTIVE RELIEF

IN CONFORMITY WITH THIS

OPINION,

U

17

HALL, Cireuit Judge, dissenting:

I agree with the majority that the officers acted in

good faith and that the searches were conducted in a

reasonable manner. However, I do not agree that a valid

arrest warrant and probable cause are constitutionally

insufficient to justify a search for the suspect upon a

third person's premises. The majority's additional re-

quirement of a search warrant in such circumstances

causes me grave concern, and I must respectfully

dissent.

The broad arguments advanced by the plaintiffs were

considered and rejected in United States v. Phillips, 593

F.2d 553 (4th Cir. 1978). Phillips involved the search of a

residence which federal officers had observed for about

one year to be a gathering place for members of a

narcotics distribution ring. After obtaining valid arrest

warrants, the policemen sought to execute the warrants

at the residence. Though no one responded to their

knocks at the door, the officers heard noises within the

house. They forcibly entered and proceeded to search

for the named suspects. During their search, the

officers seized evidence lying in plain view which was

later used at trial.

The Phillips defendants objected to admission of the

evidence on the ground that it was illegally seized, and

raised the issue on appeal. We held that the search was

18

reasonable and that it did not violate the fourth

amendment, although no search warrant was obtained.

We did so on the ground that it has long been established

that police officers may lawfully enter a dwelling, with

force if necessary, to execute a valid arrest warrant,

where they reasonably believe that the named suspect is

on the premises. Id. at 557; Rodriguez v. Jones, 473 F.2d

599, 604-06 (5th Cir.) cert. denied, 412 U.S, 953 (1973);

United States v. Brown, 467 F.2d 419, 423 (D.C. Cir.

1972) (Mr. Justice Clark); United States v. Cravero, 545

F.2d 406, 421 (Sth Cir. 1976) cert. denied, sub. nom. Cook

v. United States, 430 U.S. 983 (1977); United States v.

McKinney, 379 F.2d 259, 262-63 (6th Cir. 1967); Michael

v. United States, 393 F.2d 22, 32 (10th Cir. 1968). See

Lankford v. Gelston, 364 F.2d 197, 205-06 (4th Cir. 1966);

vance v. North Carolina, 432 F.2d 984, 990-91 (4th Cir.

1970).

I/ In 1975, twenty-five states had statutes authorizing

warrantless entries to arrest in residences, absent

exigent circumstances. Note, "Warrantless Entry to

Arrest: A Practical Solution to a Fourth Amendment

Problem," 1978 U. Il. L. F. 655, 668-69. Several of our

sister circuits have recently held that per se violations

of fourth amendment rights occur when police officers

enter residences with neither an arrest warrant nor a

search warrant, absent exigent circumstances. United

States v. — 560 F.2d 729, 733 (6th Cir. 1977);

n ‘ania * eed, 572 F.2d 412, 420-23 (2nd Cir.

8 nom. Go v. United Stat 99

78), Contra, 11 8 ex rel. Wright ve

ll

Woods, 432 F.2d th Cir. 1970).

19

I see no necessity to create an exception to this rule

for third-party residences because a magistrate's eval-

uation of probable cause prior to such a search will have

no appreciable effect upon the privacy interests to be

protected. The search is intrusive upon those privacy

interests whether or not exigent circumstances are

present or a search warrant is obtained. Lankford v. ö

Gelston, 364 F.2d at 206. The resident's privacy

interest centers primarily on the manner and extent of

the search conducted—a matter unaffected by a warrant

requirement since it cannot be reviewed before the fact.

Also, the search for a person named in an arrest

warrant presents inherent exigencies not present in the

search for objects. See Vance v. North Carolina, 432

F.2d at 990-91. Named suspects frequently pose a threat

of danger to the police and to the public, necessitating

the swiftest possible execution of arrest warrants. The

suspect's very failure to present himself to the police

may, in a practical sense, be viewed as an exigency

justifying an exception to the warrant requirement of

the fourth amendment. In most cases other circum-

stances, such as the gravity of the crime or the stability

and dangerous propensities of the suspect, are present

when the suspect eludes the police. See United States v.

McKinney, 379 F.2d at 263; United States v. Brown, 467

F.2d at 424.

20

In this case no exigent circumstances appeared.

Although the custody and welfare of a young child was at

issue, no felony was suspected. The suspect was wanted

for failure to appear in court. She was not considered

unstable or dangerous. Nevertheless, I think no purpose

would have been served by requiring the officers here to

make a separate trip to the magistrate each time they

formed a reasonable belief as to her presence in a

particular dwelling. To impose such a rule would have

hampered them in their duties while giving no appre-

ciable benefit to the residents of the dwellings.

I hasten to add that any search conducted under these

circumstances may be challenged in federal tort actions

by a resident of the dwelling searched, on the ground

that an officer's belief was unreasonable or that the

conduct of the search was unreasonable. 42 U.S.C.

$1983. See Hill v. Rowland, 474 F.2d 1374 (4th Cir. 1974);

Bivens v. Six Unknown Named Agents of Federal Bureau

of Narcotics, 403 U.S. 388 (1971). The reasonable belief

standard is not without teeth. See United States v.

Cravero, 545 F.2d 406, 421 (Sth Cir. 1976):

The test is properly framed in terms of

reasonable belief. Probable cause is es-

sentially a concept of reasonableness, but it

has become a term of art in that it must

always be determined by a magistrate unless

exigent circumstances excuse a search

warrant .... Reasonable belief embodies the

21

same standards of reasonableness [as prob-

able cause] but allows the officer who has

already been to the magistrate to secure an

arrest warrant, to determine that the suspect

is probably within certain premises without

an additional trip to the magistrate and

without exigent circumstances.

(Footnote and citations omitted). The reasonableness of

the search itself must be determined on a case-by-case

basis. In many circumstances a brief and courteous

walk-through is sufficient to determine if a suspect is in

fact in the home.

The recent Supreme Court decision in Payton v. New

Tork, U. 8s. 48 U.S. L. W. 4375 (April 15, 1980),

does not require a contrary conclusion. As the majority

‘notes, Payton did not address the issue presented here.

Accordingly, I would find that the police need not

obtain a search warrant for third-party dwellings when

they have a reasonable belief that the person named in a

valid arrest warrant is in the dwelling.