Petitioners Brief — Minnesota v. Olson

IN THE tier

Supreme Court of the United States

October Term, 1989

STATE OF MINNESOTA,

Petitioner,

ROBERT DARREN OLSON,

Respondent.

ON WRIT OF CERTIORARI TO THE

MINNESOTA SUPREME COURT

BRIEF FOR PETITIONER

HUBERT H. HUMPHREY, III

Minnesota Attorney General

102 State Capital

St. Paul, MN 55155

THOMAS L. JOHNSON

County Attorney

ANNE E. PEEK

Assistant Hennepin County

Attorney

Counsel of Record

ELIZABETH D. MORAN

—

224-7658 ee 287 E. 6th aner — 8 224-7651

sn Qh

QUESTIONS PRESENTED

1. After successfully eluding the police following an armed

robbery and murder, defendant sleeps overnight on the floor

at a friend’s home. He has no key to the home, is never left

alone there and has no possessions other than a few extra

clothes in a bag. Does defendant have a legitimate expectation

of privacy in the friend’s home to enable him to challenge his

warrantless arrest there under the Fourth and Fourteenth

Amendments to the United States Constitution?

2. At 2:00 p.m. on a Sunday the police establish probable

cause to believe defendant is an accomplice in an aggravated

robbery and murder that occurred the day before. Police also

have reason to believe that defendant is temporarily staying in

a particular duplex; that he may be armed; and that he may be

preparing to flee. Approximately an hour later, when police

learn that defendant and his friends are present at that ad-

dress, they surround the duplex. They telephone into the du-

plex and confirm defendant’s presence and his refusal to come

out. Under these circumstances, must police continue to stake

out the building while obtaining a warrant, or is an immediate

warrantless entry to arrest justified by exigent circumstances

under the Fourth and Fourteenth Amendments to the United

States Constitution?

TABLE OF CONTENTS

Questions Presented

Opinions Below

Jurisdiction

Constitutional Provisions

Statement of the Case

Summary of Argument

Argument

I. Respondent Had No Legitimate Expectation Of

Privacy In The Home In Which He Was Arrested

And Therefore Cannot Seek To Suppress Evidence

Obtained As A Result Of His Warrantless Ar-

Rule Only If He Establishes that the War-

rantless Entry Into the Duplex to Arrest Him

Violated His Own Privacy Interests

B. Respondent Did Not Overcome His Burden Of

Demonstrating A Legitimate Expectation Of

Privacy In the Duplex In Which He Was

Arrested

1. Respondent has no legitimate expectation

of privacy under prior decisions of this

court

8 a a — —

14

16

16

—

2. An analysis of the totality of the eireum-

stances, including Respondent’s lack of

ownership, and his lack of extensive con-

trol of the premises, demonstrates that Re-

spondent had no reasonable expectation of

privacy inthe duplex .................

II. Defendant’s Warrantless Arrest Was Reasonable

Under The Fourth Amendment Because It Was

Justified By Exigent Circumstances... .—s—s._.s.

A. Police May Make a Warrantless Entry to Ar-

C.

rest When They Can Demonstrate an Urgent

EE

Respondent’s Warrantless Arrest Was Justi-

fied Because Police Had Reason to Believe

Delay to Obtain a Warrant Would Have En-

dangered Police Officers and Resulted in Re-

spondent’s ESca ee

Under the Dorman Analysis, Respondent's

Warrantless Arrest was Proper; the Dorman

Analysis, However, Should be Rejected by

D ̃ „„

Under the Circumstances of this Case Police

Were Not Required to Stake Out the Duplex

While Seeking a Warrant

iii

Page

19

TABLE OF AUTHORITIES

Cases: Page

Alderman v. United States,

394 U.S. 165 (1969) .............. 9, 15

California v. Greenwood, 486 U.S. ——,

108 S.Ct. 1625, 100 L.Ed.2d 30 (198) 20

Cardwell v. Lewis,

ee 12, 36

Dorman v. United States,

435 F.2d 385 (D.C. Cir. 1970) 11, 12, 29, 30, 31.

Gaylor v. State,

284 Ark. 215, 681 S.W.2d 348 (1984) 25

Jones v. United States,

362 U.S. 257 (1960)

Katz v. United States,

ent 9, 10, 17, 18

. 14

Ker v. California,

r .. 84

Michigan v. Tyler,

e 11, 24

Mincey v. Arizona,

, sd phe eee ed eek eek 24

O’Connor v. Ortega,

480 U.S. 709 (1987) ........ 0. een. 15

Payton v. New York,

445 U.S. 573 (1980) 6, 11, 14, 19, 24, 35, 36

People v. Abney, 81 III. 2d 159,

407 N.E.2d 543 (1980) 25

People v. Atkinson,

116 Misc.2d 771, 456 N.Y.2d 328 (1982) 34

Rakas v. Illinois,

439 U.S. 128 (4978)

iv

9, 10, 14, 15, 17, 18, 19, 20, 21

Rawlings v. Kentucky,

448 U.S. 98 (1980) “5 abit 9, 15, 16, 17,

Schmerber v. California,

SG We. Tee CEBGD „„ „„ „ „ ees

Smith v. Maryland,

442 US. 735 (19799

State v. Chavez, 98 N.M.61, .

644 P.2d 1050 (1982 e

State v. Elderts, 62 Hawaii 495,

617 P. ad 89 (1980)

State ex rel. Rasmussen v. Tahash,

272 Minn. 539, 141 N. W. 2d 3 (1965)

State v. Girard, 276 Or. 511,

555 P. 2d 445 (1976))

State v. Peller, 287 Or. 255,

598 P. 2d 684 (1979)

Terry v. Ohio,

392 U.S. 1 (1968)

Texas v. Brown,

460 U.S. 730 (1983)

United States v. Acevedo,

627 F.2d 68 (7th Cir. 1980)

United States v. Adams,

621 F.2d 41 (ist Cir. 19800

United States v. Alvarez,

810 F.2d 879 (9th Cir. 1987) .

United States v. Brightwell, 563 F.2d 569

(3rd Cir. 1977), cert. denied 439 U.S. 849 (1978)

United States v. Campbell,

581 F.2d 22 (2d Cir. 1978)

United States v. Cattouse,

846 F.2d 144 (2d Cir. 1988)

Page

18, 19

Page

United States v. Davis,

785 F.2d 610 (8th Cir. 19895 205

United States v. Donaldson,

606 F.Supp. 325 (D. Conn. 1985) eevee

United States v. Echegoyen,

799 F.2d 1271 (9th Cir. 198) 16

United States v. Flickinger,

573 F.2d 1349 (9th Cir. 1978) 25

United States v. McIntosh,

857 F.2d 466 (8th Cir. 1988) 7 16

United States v. McLaughlin, 525 F. 2d 517

(9th Cir. 1975), cert. denied, 427 U.S. 904 (1976) 32

United States v. Patino,

830 F.2d 1413 (7th Cir. 1987) ................ 34

United States v. Salvador, 740 F.2d 752 (9th Cir.

1984), cert. denied, 469 U.S. 1196 (1985) 25, 32

United States v. Salvucci,

448 U.S. 83 (198) e 16, 19

United States v. Santana,

427 U.S. 38 (197) 24, 30

United States v. Shye,

492 F.2d 886 (6th Cir. 1974) a =

United States v. Underwood, 717 F.2d 482 (9th Cir.

1983), cert. denied, 465 U.S. 1036 (1984) 17

United States v. Watson,

423 U.S. 411 (197) Ste dks at 35, 36

United States v. Webster,

750 F.2d 307 (5th Cir. 1984) a 32

United States v. Williams, 612 F. 20 735 (3rd Cir.

1979), cert. denied, 445 U.S. 934 (1980) 32

Warden v. Hayden,

387 U.S. 294 (1967) ele

Weddle v. State,

621 P. ad 231 (Wyo. 1980 2085

Welsh v. Wisconsin,

466 U.S. 740 (1984) 24, 26, 27, 29

Constitution, Statutes and Rules:

U.S. Const. Amend. LVR : passim

U.S. Const. Amend. I““ 2, 5, 6

28 U.S.C. 51257 (a) (1989) F 1

49 Minn. Stat. Ann. R. Cr. F. 2 9 4

49 Minn. Stat. Ann. R. Cr. F. 8388 4

Minn. Stat. 5609.05 (1987) . 26

Minn. Stat. 5609. 185 (1987) 8 5

Minn. Stat. §609.222 (1987) 5

Minn. Stat. §609.245 (1987) 5

Miscellaneous Authorities:

2 W.LaFave Search and Seizure

§6.1(f) 595 (2d ed. 1987) 29, 30, 33, 34

Baldassano, Police Created Exigencies: Implications

for the Fourth Amendment,

37 Syracuse L. Rev. 147 (1986)

Exigent Circumstances for Warrantless Home

Arrests, 23 Ariz. L.Rev. 1171 (1981)

Harbaugh & Faust, “Knock on any Door -Home

Arrests After Payton and Steagald,

86 Dick L.Rev. 191 (1982) 29

vii

IN THE

Supreme Court of the United States

October Term, 1989 2

No. 88-1916

STATE OF MINNESOTA,

Petitioner,

vs.

ROBERT DARREN OLSON,

Respondent.

ON WRIT OF CERTIORARI TO THE

MINNESOTA SUPREME COURT

BRIEF FOR PETITIONER

OPINIONS BELOW

The opinion of the Minnesota Supreme Court (J.A.14-27)

is reported at 436 N.W.2d 92 (Minn. 1989). The opinion of the

Hennepin County District Court (J.A.3-13) is unreported.

JURISDICTION

The judgment of the Minnesota Supreme Court was entered

on February 24, 1989. The State filed a timely Petition for

Rehearing on March 6, 1989. The Minnesota Supreme Court’s

summary denial of that Petition for Rehearing (J.A.27) was

filed on March 28, 1989. The petition for a writ of certiorari

was filed within sixty days of the court’s denial of rehearing,

and was granted on October 2, 1989.

The jurisdiction of this Court is invoked under 28 U.S.C.

§1257(a) (1989).

CONSTITUTIONAL PROVISIONS

The Fourth Amendment to the United States Constitution:

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 partic-

ularly describing the place to be searched, and the persons or

things to be seized.

The Due Process Clause of the Fourteenth Amendment to

the United States Constitution:

. . . [Nor shall any State deprive any person of life, lib-

erty, or property, without due process of law .. .”

STATEMENT OF THE CASE

On Saturday morning, July 18, 1987 a lone gunman entered

a gas station in Minneapolis with an automatic weapon. With-

out a word, the man shot the young manager of the store in

the back of the head. Then he robbed the other three employees

of the station at gunpoint. Police were quickly alerted. Be-

cause the description of the robber fit Joseph Ecker, a man

suspected of committing several robberies in the area, police

officers went to Ecker’s home within minutes of the robbery /

murder. A brown Oldsmobile pulled up at Ecker’s home at the

san time as the police car. When the driver saw the squad

car, he put his car in reverse and sped backwards; the car

spun out of control and came to a stop. The driver and one

other male jumped out of the car and fled on foot. Officers

gave chase and quickly arrested Joseph Ecker, the passenger

of the car, inside his home. The other man escaped. Ecker was

later identified as the gunman who entered the station to com-

mit the crime.

Inside the abandoned Oldsmobile police found the stolen

money and the murder weapon, as well as various documents

linking Respondent Robert Darren Olson to the car. They also

found in the car a pellet gun in the shape of a revolver, a

knife, a knife sheath and two empty shoulder holsters for

handguns (R.85, 99; T.224, 341, 345, 369-70).'

Police continued to investigate. On the morning of the next

day, Sunday, police received a tip that a man named “Rob”

was the driver of the getaway car and was planning to leave

town by bus (R.110-12, 129). Police officers were dispatched

to the bus depot (R.129-130). At noon the tipster called again.

She identified herself to Sgt. DeConcini, the investigating

officer, and told him that “Maria,” who lived on Garfield

Avenue N.E., had told her that “Rob” had admitted to her

(Maria) and to “Louann and Julie” at 2406 Fillmore Avenue

N.E. that he was the driver for the gas station robbery and

murder (R.113-14, 122). Police officers went to 2406 Fillmore,

a duplex, to try to verify the tip (R.114, 132, 148-50). They

were unable to find Louann or Julie, but the person living in

the lower portion of the duplex identified herself as Louann’s

mother and verified that Louann and Julie Bergstrom lived

upstairs. She told police that Respondent had been staying

with Louann and Julie for a day or so, but that they were not

home now. She agreed to call police when they returned

(R.114-15, 132-33, 142-44, 147, 148-50).

1“R” refers to the transcript of the pretrial suppression hearing.

This hearing is referred to as a “Rasmussen” hearing because it is

mandated in Minnesota by State er rel. Rasmussen v. Tahash, 272

Minn. 539, 141 N.W.2d 3 (1965). “T” refers to the trial transcript.

2The actual identity of the informant is unknown. The woman

identified herself as “Diana Murphy” and gave an address and

telephone number (R.113). A woman named Diana Humphrey.

whose address and telephone number matched that given by the

tipster, testified that she knew Louann and Julie but that she did

not call the police (R.168-176).

4

At 2:00 p.m., shortly after he received this information,

Sgt. DeConcini issued a “pickup order” for Respondent

(R.115-117, 131; T.430). He did not attempt to get an arrest

warrant (R.129).* He instructed his officers to stay away

from the duplex until he received a call that Respondent had

returned. At approximately 2:45 p.m. the downstairs resident

called and told DeConcini that Respondent and the others had

returned (R.117-18). DeConcini ordered his officers to sur-

round the home. After they arrived, but before they tried to

enter, DeConcini called the home. A woman who identified

herself as “Julie” answered the telephone. DeConcini told her

to tell Respondent to come out of the house, that police were

waiting for him. There was a pause, and then DeConcini

heard a male voice in the background saying, “tell them I

left.” Julie then came back on the phone and said “[Respon-

dent] has left already” (R.118, 124; T.431, 433-34). DeConcini

then directed the officers to enter the house.‘ They found

Rules 2 and 3 of the Minnesota Rules of Criminal Procedure pro-

vide that an arrest warrant must be combined with a criminal

complaint, which requires a county attorney’s signature as well as

judicial approval. 49 Minn.Stat.Ann.R.Cr.P. 2, 3. Sgt. DeConcini

testified he did not attempt to obtain a warrant because it was

Sunday, the county attorney's office was not open, and the tip

gave him reason to believe that Respondent intended to flee

(R.116, 129). He stated he did not know how long it would take

to obtain an arrest warrant/complaint on Sunday in Hennepin

County because he had never tried to obtain one on a weekend

(R.130).

There is no dispute that Louann Bergstrom opened the door in

response to the officers’ knock, and the police entered with guns

drawn (R.184-85). In his Brief in Opposition to Petition for Certi-

orari Respondent characterized the police entry as a “storming

of a dwelling” and quoted portions of Julie Bergstrom’'s testimony

at the pretrial hearing in which she claimed to have been mis-

treated by police. Her testimony, however, was not supported by

that of her mother, Julie's boyfriend or the police officers, and the

trial court did not make such a finding of excessive force or mis-

treatment (See R.137-38, 145-46, 182-192, 208-211 and J.A346).

Respondent hiding behind furniture and toys in the back of

a small closet on the third floor attic of the building (R.118,

139-41; T.408-411). He was then arrested, and shortly after

3:00 p.m. police obtained a statement from him, in which he

admitted driving Ecker to and from the crime scene but denied

any involvement in the crime (R. 157-163; T.379-396).°

In August 1987 Respondent and Joseph Ecker were indicted

by a Hennepin County, Minnesota grand jury on charges of

first degree premeditated murder, first degree felony murder,

aggravated robbery and second degree assault.“

At a pretrial hearing Respondent moved to suppress his post

arrest statement on the grounds that his warrantless arrest

violated the Fourth and Fourteenth Amendments of the

United States Constitution. Respondent argued that he had a

legitimate expectation of privacy in the Bergstrom duplex and

therefore the warrantless police entry to arrest him violated

5 Subsequent police investigation revealed that the car used in the

crime belonged to Respondent and that the murder weapon prob-

ably also belonged to Respondent (T.390, 475-500, 50708).

Minnesota Statutes §609.185 (1987) provided in relevant part:

Whoever does any of the following is guilty of murder in the

first degree and shall be sentenced to imprisonment for life:

(1) causes the death of a human being with premeditation and

with intent to effect the death of the person or of another;

- = =

(3) causes the death of a human being with intent to effect the

death of the person or another, while committing or attempt-

ing to commit... aggravated robbery,....

Minnesota Statutes §609.245 (1987) provided as follows:

Whoever, while committing a robbery, is armed with a dangerous

weapon or inflicts bodily harm upon another is guilty of aggra-

vated robbery and may be sentenced to imprisonment for not

more than 20 years or to payment of a fine of not more than

$35,000 or both.

Minnesota Statutes §609.222 (1987) provides as follows:

Whoever assaults another with a dangerous weapon may be sen-

tenced to imprisonment for not more than five years or to pay-

ment of a fine of not more than $10,000, or both.

the principles set forth in Payton v. New York, 445 U.S. 573

(1980) .“ The State argued in response that Respondent lacked

the necessary “standing” to contest the legality of his arrest

and that in any event exigent circumstances justified the

warrantless arrest.

Testimony presented at the hearing revealed the following

facts with respect to Respondent's connection with the duplex

Respondent had been staying with Ecker at Ecker’s home for

at least ten days before the crime; after Respondent’s narrow

escape from police which resulted in Ecker's arrest in his

home, Respondent did not wish to return there (R.220-21).

Although they had not known him long, Julie Bergstrom and

her mother, Louann, agreed to allow Respondent to stay with

them for a day or two in their upper duplex (R.182, 184, 194-

95, 198, 216). At the time of his arrest Respondent had slept

on the floor for one night; also sharing the home that night

was Julie’s boyfriend (R.182, 189, 191, 208-09). Respondent

had no legal interest in the duplex, did not receive mail there

and did not have a key (R.220). Although he kept a few extra

clothes in a bag at the home, he had no closet, dresser, or even

a toothbrush, at the duplex (R.220). Julie Bergstrom testified

that Respondent was free to come and go; however, during

his overnight stay Respondent left the duplex when the other

occupants left and returned only when the other occupants re-

turned (R.183-84, 195, 216-17). The only evidence concerning

7 Respondent also claimed that to the extent the police relied on in-

formation from a “fictitious informant,” they lacked sufficient

probable cause to arrest under the Fourth and Fourteenth Amend-

ments to the United States Constitution. The trial court found that

the information provided by the informant was sufficiently cor-

roborated to justify police reliance, and that the tip, as well as the

other incriminating evidence found in the getaway car, provided

sufficient probable cause for Respondent's arrest (J.A.6, 9-12). On

appeal the Minnesota Supreme Court discussed, but did not reach,

the issue of probable cause to arrest (J.A.17-20).

7

Respondent’s right to allow or refuse entry to visitors was as

follows:

Q. [by defense attorney] And if somebody came over

to see Mr. Olson, did he have your permission to admit

them or refuse to admit them?

A. [by Louann Bergstrom]: I don’t know. It was

never discussed.

Q. Had somebody come over to visit Mr. Olson, would

you have allowed him to decide if that person would visit

with him?

A. If I saw no reason not to.

(R.192). Although Respondent testified he would have given

friends who wished to reach him the Bergstroms’ address and

phone number, there was no evidence that Respondent in fact

did so or received any visitors during his brief stay at the

Bergstroms (R.218, 225-26).

The trial court denied Respondent's motion to suppress,

finding that under these facts, Respondent had no reasonable

expectation of privacy in the duplex and thus had no “stand-

ing” to contest his arrest. The court did not therefore reach

the issue of whether exigent circumstances justified the war-

rantless arrest (J.A.6-9).

On February 11, 1988, after a jury trial, Respondent was

convicted as Ecker’s accomplice of first degree felony murder,

aggravated robbery and second degree assault. Respondent

appealed his conviction to the Minnesota Supreme Court, al-

leging numerous errors, including the legality of his warrant-

less arrest. On February 24, 1989, the Minnesota Supreme

Court, reaching only the issues of the legality of Respondent’s

warrantless arrest and his “standing” to raise the issue, re-

versed Respondent’s conviction and remanded the case for a

new trial (J.A.14-27). The court held that as an overnight

guest with permission to stay for an indefinite period and

some authority to allow or refuse visitors entry, Respondent

had a legitimate expectation of privacy in the duplex (J.A.20-

22).*

The Minnesota Supreme Court then decided that the war-

rantless arrest was not justified by exigent circumstances

because: a) Respondent was not the murderer but rather his

accomplice; b) the police had no reason to believe Respondent

was armed since they had already recovered the murder

weapon; c) Respondent had not yet left town; and d) the

police should have obtained a warrant, either during the hour

while they waited for Respondent's return to the duplex or

while they had the house surrounded (J.A.22-25). Because the

court held that the arrest violated Respondent's federal Fourth

Amendment rights, it suppressed Respondent’s post arrest

statement. The court found that the use of the statement at

trial was not harmless error and remanded the case for a new

trial (J.A.25-27). The State filed a timely Petition for Re-

hearing on March 6, 1989, which was summarily denied by the

Minnesota Supreme Court on March 28, 1989 (J.A.27). Certi-

orari was granted by this Court on October 2, 1989.

* Respondent has consistently argued that he had the authority to

admit or refuse others entry; the State has consistently argued

that the record does not support such a conclusion. The trial court

did not explicitly find lack of authority to control, but such a

finding is implicit in the trial courts order. The Minnesota

Supreme Court implicitly held that the trial court's finding on

this issue was clearly erroneous

9

SUMMARY OF ARGUMENT

A. Legitimate Expectation of Privacy

It is well-settled that one cannot assert the Fourth Amend-

ment privacy rights of another. Alderman v. United States,

394 U.S. 165 (1969). Respondent, therefore, as the proponent

of a motion to suppress, has the burden of establishing not

only that his arrest was illegal but also that he had a legitimate

expectation of privacy in the home in which he was arrested.

Rawlings v. Kentucky, 448 U.S. 98, 104 (1980).

The Minnesota Supreme Court held that Respondent, who

was arrested after sleeping overnight in the home of an ac-

quaintance, had a legitimate expectation of privacy in that

home. The court came to that conclusion despite the existence

of the following facts: 1) up until the night before his arrest

Respondent had been living with his codefendant ; 2) Respon-

dent did not own or rent the home in which he was arrested

and had no key; 3) Respondent kept no possessions there other

than a change of clothes—not even a toothbrush; and 4) Re-

spondent was never left alone there and had no clear authority

to admit or refuse visitors. Because any right to privacy that

Respondent could possess in the home could be derived only

from his sleeping on the floor there one night with permission

of the owners, the Minnesota Supreme Court’s implicit holding

is that Respondent’s status as an overnight guest is alone

sufficient to demonstrate a privacy interest in a third person’s

home. That holding conflicts with Jones v. United States, 362

U.S. 257 (1960), as interpreted by Rakas v. Illinois, 439 U.S.

128 (1978). Jones held that anyone “legitimately on the prem-

ises where a search occurs has standing“ to challenge the

legality of the search. In Rakas the Court rejected that lan-

guage in Jones, but reaffirmed the Jones result, emphasizing

10

that the defendant in Jones had a privacy interest in his

friend’s apartment because, in addition to his legitimate pres-

ence, he had complete control over it and could exclude others

from it. Since Respondent had no control and no right to ex-

clude in his friend’s home, the Minnesota Supreme Court’s

holding that he nevertheless had a privacy interest there is

merely a restatement of the “legitimately on the premises”

standard which this Court rejected in Rakas.

Moreover, any subjective privacy expectations held by Re-

spondent under the facts of this case were not reasonable.

This case raises the question of what facts must be present

before society can reasonably find privacy expectations in a

second place similar to those in one’s own home. The State

suggests twelve factors which reflect society’s understanding

of what makes a dwelling, even a temporary one, a “home.”

These factors reflect society’s view that merely sleeping over-

night in a place does not create privacy expectations: one must

establish ownership or a relationship to the owner; extensive

use; or some evidence of control over the premises before a

reasonable expectation of privacy will be found.

The practical effect of the Minnesota court’s holding is to

greatly enlarge the class of persons who may invoke the ex-

clusionary rule. There is, however, a substantial social cost

to the invocation of the rule. By allowing felons to use the

Fourth Amendment as a shield to escape apprehension wher-

ever they flee, the Minnesota court’s holding drastically shifts

the vital and delicate balance between privacy rights and

effective law enforcement.

11

B. Exigent Circumstances

Warrantless searches and seizures within the home are un-

reasonable under the Fourth Amendment unless exigent cir-

cumstances create a compelling need for official action and no

time to secure a warrant. Payton v. New York, 445 U.S. 573

(1980) ; Michigan v. Tyler, 436 U.S. 499 (1978). The State

contends that where, as in this case, police have probable

cause to believe a suspect committed a felony and that the

suspect will be located in a particular home, they can arrest

the suspect there without a warrant if a delay to get a warrant

will gravely endanger police officers or others and will result

in the escape of the suspect. If arrest were delayed, a violent

felon could destroy evidence, go into hiding, commit more

crimes, or harm police officers or others. Delay may well allow

the felon to contemplate and prepare an armed confrontation

with police or the taking of a hostage. The Fourth Amendment

does not require police officers to delay if to do so would

gravely endanger their lives or the lives of others. Warden v.

Hayden, 387 U.S. 294, 298-99 (1967).

The police officer’s decision to make a warrantless arrest

was reasonable in this case because: 1) police had probable

cause to believe that Respondent had participated in a violent

felony which involved a firearm ; 2) police believed Respondent

might be armed; 3) Respondent was in hiding and police had

received a tip that he was preparing to flee; 4) police had

probable cause to believe Respondent was in the duplex; and

5) an arrest warrant/complaint required locating a county

attorney, a secretary, and a judge on a Sunday afternoon, a

process which could not have been accomplished quickly, and

certainly not before Respondent returned to the duplex.

In addition, application of the exigent circumstances test

described in Dorman v. United States, 435 F.2d 385, 392-93

12

(D.C. Cir. 1970) compels a finding of exigent circumstances

in this case. Because the Dorman rule, however, is difficult for

police officers to apply in the field, it should be rejected by

this Court in favor of a simpler rule. The Dorman rule can be

distilled to its essentials: an exigency exists when police have

probable cause, knowledge of the suspect’s whereabouts, and

facts indicating that the suspect is dangerous and about to

flee. This distillation, involving judgments that police officers

are forced to make daily, can be more quickly and consistently

applied by police officers than the original rule.

The exigency justifying Respondent’s warrantless arrest

was not destroyed by the officers’ presumed ability to stake

out the duplex while obtaining a warrant. The Minnesota

court’s holding to the contrary ignores the fact that to main-

tain surveillance of the “hideout” of a violent felon is extreme-

ly dangerous to the police, to the defendant, to the other

occupants of the house, and to the public at large. Further-

more, stakeouts are not always effective in preventing escape.

The Minnesota court’s conclusion that a stakeout was re-

quired in this case because Respondent’s arrest was planned“

is erroneous. Far from truly “planned,” Respondent’s arrest

was the culmination of an ongoing, continuous field investiga-

tion. When police obtained both probable cause and knowledge

of Respondent’s possible location, they acted immediately to

arrest because they believed they were faced with an emer-

gency situation. Moreover, even if exigent circumstances did

not exist before police went to the duplex to arrest Respondent,

an exigency arose after they arrived, when a telephone call

into the duplex suggested that Respondent intended to flee

at that moment. See Cardwell v. Lewis, 417 U.S. 583, 595-96

(1974) (An exigency requiring police action may arise at any

time after probable cause is established.).

13

ARGUMENT

I. RESPONDENT HAD NO LEGITIMATE EXPECTATION

OF PRIVACY IN THE HOME IN WHICH HE WAS AR-

RESTED AND THEREFORE CANNOT SEEK TO SUP-

PRESS EVIDENCE OBTAINED AS A RESULT OF HIS

WARRANTLESS ARREST.

This case presents the question of under what circumstances

an overnight guest in a third person’s home has a legitimate

expectation of privacy in that home under the Fourth Amend-

ment. The Minnesota Supreme Court held, in essence, that an

overnight visitor staying for an indefinite period with per-

mission of the owners has a legitimate privacy interest in

that home. The practical effect of the Minnesota court’s hold-

ing is to greatly enlarge the class of persons who may invoke

the exclusionary rule, drastically shifting the delicate balance

between privacy rights and effective law enforcement that

this Court has attempted to strike over the years. Moreover,

the court’s holding contradicts the common sense under-

standing of “home” that citizens and police officers alike

share.

Felons sought by the police frequently do not return to their

homes, but stay briefly with a succession of friends or ac-

quaintances to elude police. Under the Minnesota court’s hold-

ing in this case, wherever a felon hides out overnight, however

briefly, is his “home” for Fourth Amendment purposes, as

long as he has permission to be there. But the Fourth Amend-

ment was not designed to provide sanctuary for citizens wher-

ever they are; it was intended to protect privacy in one’s home.

Merely sleeping in a place for one night does not make it one’s

home. See pp. 19-22, infra. That Respondent was arrested in

someone’s home is less important, for the purposes of the

14

Fourth Amendment, than the extent of Respondent’s actual

privacy interests in that place. See Katz v. United States, 389

U.S. 347, 351 (1967) (“The Fourth Amendment protects peo-

ple, not places.) Under the facts of this case, it was no more

an invasion of Respondent's privacy rights to arrest him in

the Bergstroms’ home than it would have been to arrest him

at a park bench or in an office building where he had slept

the night. If the police violated anyone’s privacy rights by

entering the Bergstroms’ home, they violated the Bergstroms’

rights. To broaden Fourth Amendment protection to persons

like Respondent who have such a tenuous connection to a place

is to virtually eliminate the “standing” requirement.

A. Respondent Can Invoke the Exclusionary Rule Only If

He Establishes that the Warrantless Entry Into the

Duplex to Arrest Him Violated His Own Privacy

Interests.

The essential purpose of the Fourth Amendment is to shield

the citizen from unwarranted intrusions into his privacy.

Freedom from intrusion into the home is the archetype of the

privacy protection secured by the Fourth Amendment. Payton

v. New York, 445 U.S. 573, 587, 588 n.26, 590 (1980). The

principal method developed by the Court to protect Fourth —

Amendment rights is the exclusionary rule. The rule deters

future arbitrary government intrusions of privacy by prevent-

ing the government from using the fruits of its illegal conduct

against the person whose rights it violated.

The exclusionary rule, however, while protecting Fourth

Amendment rights, also has a counterbalancing social cost:

when it is applied, “relevant and reliable evidence is kept from

the trier of fact and the search for truth at trial is deflected.”

Rakas v. lilinois, 489 U.S. 128, 137 (1978). This results in

some guilty persons going free, causing public outrage and

— —

15

distrust of the criminal justice system. Because of this sub-

stantial] social cost, there must be limits on the invocation of

the rule; the individual’s constitutionally protected interest in

privacy must be balanced with the public interest in effective

law enforcement. O’Connor v. Ortega, 480 U.S. 709, 719-20

(1987). One way of striking this balance is the well-settled

principle that one cannot assert the Fourth Amendment pri-

vacy rights of another. As the court explained in Alderman v.

United States, 394 U.S. 165, 174-75 (1969) :

There is no necessity to exclude evidence against one de-

fendant in order to protect the rights of another. No

rights of the victim of an illegal search are at stake when

the evidence is offered against some other party. The

victim can and very probably will object for himself when

and if it becomes important for him to do so... The

deterrent values of preventing the incrimination of those

whose rights the police have violated have been consid-

~ ered sufficient to justify the suppression of probative

evidence even though the case against the defendant is

weakened or destroyed. But we are not convinced that

the additional benefits of extending the exclusionary rule

to other defendants would justify further encroachment

upon public interest in prosecuting those accused of

crime and having them acquitted or convicted on the

basis of all the evidence which exposes the truth.

The proponent of a motion to suppress, therefore, has the

burden of estabiishing that his own Fourth Amendment rights

were violated by the challenged search or seizure. Rawlings

v. Kentucky, 448 US. 98, 104-05 (1980); Rakas v. Illinois,

439 U.S. 128, 130-31, n.1 (1978). Respondent must demon-

strate not only that the arrest was illegal but also that he had

a “legitimate expectation of privacy” in the upper duplex in

16

which he was arrested. United States v. Salvucci, 448 U.S. 83,

92 (1980) ; Rawlings v. Kentucky, 448 U.S. at 104.*

B. Respondent Did not Overcome his Burden of Demon-

strating a Legitimate Expectation of Privacy in the

Duplex in Which He was Arrested.

1. Respondent has no legitimate expectation of privacy

under prior decisions of this court.

The record establishes that Respondent did not own or rent

the duplex. He was not related to its owners. He did not

possess a key. He did not receive mail or visitors there. He

had never used the premises before. He kept no possessions

there other than a change of clothes. He was never left alone

in the duplex. His authority to admit or refuse visitors was

never discussed or tested. Any right to privacy that Respon-

dent could possess in the duplex could be derived only from

his sleeping on the floor there one night with permission of

the owners. Although some lower courts hold, at least im-

plicitly, that a defendant's status as an overnight guest is

alone sufficient to demonstrate a privacy interest in a third

person’s home, prior decisions by this Court compel a dif-

ferent result.

* Whether or not the police conduct in this case was outrageous

pertains to the issue of the legality of the arrest and not to the

“standing” issue. See Rawlings v. Kentucky, 448 U.S. at 112 (Black

mun, J., concurring). (“It remains possible for a defendant to

prove that his legitimate interest of privacy was invaded, and yet

fail to prove that the police acted illegally in doing so. And it is

equally possible for a defendant to prove that the police acted

illegally, and yet fail to prove that his own privacy interest was

affected.”).

'* See United States v. McIntosh, 857 F 2d 466 (8th Cir. 1988); United

States v. Echegoyen, 799 F.2d 1271 (9th Cir. 1986); United States

17

In Jones v. United States, 362 U.S. 257 (1960) this Court

held that anyone legitimately on the premises where a search

occurs has “standing” to challenge the legality of the search.

This Court significantly narrowed the Jones holding, however,

in Rakas v. Illinois, 439 U.S. 128 (1978) :

We think that Jones on its facts merely stands for the

unremarkable proposition that a person can have a legally

sufficient interest in a place other than his own home so

that the Fourth Amendment protects him from unrea-

sonable governmental! intrusion into that place.

439 U.S. at 142. The Court held that the correct inquiry was

whether the challenger has a legitimate expectation of privacy

in the area invaded. The Court nevertheless affirmed the

Jones result, holding that Jones did have a legitimate expecta-

tion of privacy in the apartment searched. Crucial to that deci-

sion was the fact that the owner of the apartment was away

and that Jon@p had a key to the apartment. He could there-

fore come and go at will, and freely admit and exclude others

“Jones had complete dominion and control over the apartment

and could exclude others from it.” Rakas, 439 U.S. at 149.

In holding that Respondent had a legitimate expectation of

privacy in the duplex, the Minnesota Supreme Court relied on

Jones, stating that “this case is quite similar to Jones”

wv. Underwood, 717 F.2d 482 (9th Cir. 1983), cert. denied, 465 US.

1036 (1984). See also State v. Elderts, 62 Hawaii 495, 617 Pad 89

(1980) (Since defendant was given permission by tenant to enter

apartment, defendant had reasonable expectation of privacy

there.).

1! See also Rawlings v. Kentucky, 448 US. at 112 (Blackmun, J. con-

curring) (“In my view, the ‘right to exclude’ often may be a

principal determinant in the establishment of a legitimate Fourth

Amendment interest

18

(J.A.21). At first glance this case and Jones seem factually

similar: Respondent and Jones were both overnight guests

who carried with them only a change of clothes. There are,

however, important factual differences between this case and

Jones which the Minnesota Supreme Court overlooked. These

factual differences demonstrate that Respondent had far less

control over his friend’s home than did Jones:

a) Respondent was never left alone in the duplex. The rec-

ord indicates that he left the duplex when the other occupants

of the dwelling left. He returned only when they returned.

b) Respondent presented no evidence that he had the right

to refuse entry to others, and the evidence with respect to

admitting entry to others was qualified and vague (See

R.192).'?

c) Respondent presented no evidence that he had a key to

the duplex, a fact which is extremely important, although not

determinative. When a host gives his guest a key to his house,

he says, in effect, “my home is your home” the guest can then

come and go at will, exclude others, and completely control the

premises, at least as long as the owner is absent. Because

Respondent’s connection with, and control of, the premises

was minimal, a careful application of Rakas compels a finding

that Respondent lacked a reasonable expectation of privacy in

the duplex. The Minnesota court’s holding to the contrary is

12 The State contends that the Minnesota Supreme Court's conclu-

sion regarding Respondent's right to admit or exclude others is

clearly erroneous because it was not supported by the record.

Furthermore, even if the record were subject to conflicting inter-

pretations, it is the State's position that Respondent did not over.

come his burden of proof on this issue. Concerning the Defendant's

burden of proof, see Rawlings Kentucky, 448 US. at 104; Rakas

*. Inis 439 US. at 130-131, n.1.

19

merely a restaternent of the “legitimately on the premises”

standard which this Court rejected in Rakas.'*

2. An analysis of the totality of the circumstances,

including Respondent's lack of ownership, and his

lack of extensive control of the premises, demon-

strates that Respondent had no reasonable expecta-

tion of privacy in the duplex.

The Fourth Amendment is designed to protect people's pri-

vacy rights in their possessions and their homes. Yet one can

have a legally sufficient interest in a place other than one’s

own home so t! at the Fourth Amendment protects his privacy

there. Rakas v. Illinois, 489 U.S. at 142. When an individual

18 Respondent must show that he had a legitimate expectation of

privacy in the area searched. This Court has not indicated, how.

ever, whether, in an arrest situation, the “area searched” is the

entire premises or is limited to the immediate area in which the

person was arrested. In the context of search and seizure of

property, however, this Court has indicated that the defendant

must show a privacy interest in the immediate area searched.

See United States v. Salvucci, 448 U.S. at % (remanding to a

low the defendants the opportunity to establish “that they had

a legitimate expectation of privacy in the areas of [defendant's]

mother’s home where the goods were seized.”); Rawlings v. Ken.

tucky, 448 U.S. at 104 (Defendant must show he had a legitimate

expectation of privacy in Cox's purse); Rakas v. Illinois, 439 U.S.

ait 148 (Defendants must show that they had “a legitimate expec-

tation of privacy in the particular areas of the automobile

searched”). This Court has also stated that “an entry to arrest

and an entry to search for and to seize property implicate the

same interest in preserving the privacy and the sanctity of the

home, and justify the same level of constitutional protection.”

Payton v. New York, 445 U.S. at 588. If Respondent must show a

privacy interest in the immediate area, his claim must fail; what-

ever expectation of privacy Respondent may have had in the

areas he used during his overnight stay, Respondent made no

showing that he had any privacy interest in the small third

floor storage closet in which he was found and arrested.

is away from his home, he may treat some other place—a

motel room, a room in his parents’ home or in the home of a

friend, for example—enough like a home that it will be deemed

such for the purposes of the Fourth Amendment's protection

of privacy. But his subjective expectation of privacy in a

particular place is not sufficient to invoke the Fourth Amend-

ment unless that expectation is one that society is prepared

to recognize as objectively reasonable. California v. Green-

wood, 486 U.S. ——., 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988) ;

Rakas v. Illinois, 439 U.S. at 143-44, n.12 (Legitimation of

expectations of privacy by law must have a source outside of

the Fourth Amendment, either by reference to concepts of

real or personal property law or to understandings that are

recognized and permitted by society). Accord Smith v. Mary-

land, 442 U.S. 735, 740 (1979). This case raises the question

of what facts must be present before society can reasonably

find privacy expectations in a second place similar to those

in one’s own home. The State submits that merely sleeping

overnight there is not enough to create those privacy expecta-

tions. A defendant must establish ownership or a relationship

to the owner; extensive use; or some evidence of control over

the premises before a legitimate expectation of privacy can be

found.

In determining legitimate expectations of privacy this Court

has rejected a “bright line” rule in favor of case by case analy-

sis. Rakas v. Illinois, 489 U.S. at 144-48. The Court has had

little opportunity, however, to set forth the factors which

would help establish a legitimate expectation of privacy. Low-

er courts have applied several factors, but without guidance

from this Court, have reached inconsistent and sometimes

incongruous results. See State’s Petition for a Writ of Cer-

tiorari, pp. 14-17 and Brief of Amici Curiae in Support of

Petition for Writ of Certiorari, pp. 5-8.

21

The State submits that the privacy expectations of an over-

night visitor are reasonable when some combination of the

following independent factors are present

a) the visitor has some property rights in the dwelling;

b) the visitor is related by bigod or marriage to the owner

or lessor of the dwelling .

c) the visitor receives mail at the dwelling or has his name

on the door;

d) the visitor has a key to the dwelling;

e) the visitor maintains regular or continuous presence in

the dwelling, especially sleeping there regularly

f) the visitor contributes to the upkeep of the dwelling,

either monetarily or otherwise ;

g) the visitor has been present at the dwelling for a sub-

stantial length of time prior to arrest;

h) the visitor stores his clothes or other possessions in the

dwelling ;

i) the visitor has been granted by the owner exclusive use

of a particular area of the dwelling:

j) the visitor has the right to exclude other persons from

the dwelling ;

k) the visitor is allowed to remain in the dwelling when the

owner is absent

) the visitor has taken precautions to develop and maintain

his privacy in the dwelling.

These factors reflect society's (including police officers’)

understanding of what makes a dwelling, even a temporary

one, a “home.” Some factors may be determinative in a partic-

ular case others are not. While each case will present a differ-

ent mix of factors, the ultimate question remains “whether

one’s claim to privacy from government intrusion is reason-

able in light of all the surrounding circumstances Rakas »

Iinois, 489 U.S. at 152 (Powell, J., concurring).

None of the factors enumerated above were present in the

instant case, and therefore any expectation of privacy Re-

spondent had in the Berxstroms duplex was not reasonable.

For ten days before the crime Respondent’s home was Eck-

er's apartment. Had police entered that home illegally, Re

spondent’s privacy rights would have been violated. In order

to elude police, however, Respondent slept one night on the

floor in the home of an acquaintance. Even if police had en-

tered that home illegally, Respondent's privacy rights were

not violated because his connection to, and control of, the

place was so tenuous. To hold that Respondent had no legiti-

mate expectation of privacy in the Bergstroms’ home will not

destroy the privacy rights of felons in their homes. It will,

however, prevent felons from using the Fourth Amendment as

a shield to escape apprehension wherever they flee.

u. DEFENDANTS WARRANTLESS ARREST WAS REA-

SONABLE UNDER THE FOURTH AMENDMENT BE-

CAUSE IT WAS JUSTIFIED BY EXIGENT CIRCUM-

STANCES.

This case presents the following questions

a) whether, under the exigent circumstances exception to

the warrant requirement, police may make a warrantless entry

of a dwelling to arrest a defendant who police have probable

cause to believe is an accomplice to an armed robbery and

murder, and who police believe is in hiding and may be pre-

paring to flee; and

b) if so, whether the exigency justifying immediate entry

is destroyed by the officers’ presumed ability to stake out the

defendant's home while obtaining a warrant. These questions,

part of the broader issue of how to define the exigent circum-

stances necessary to justify a warrantless police entry of a

home to make an arrest, have not yet been decided by this

Court.

The Minnesota Supreme Court held that Respondent’s war-

rantless arrest was not justified by exigent circumstances be-

cause: 1) Respondent was not the murderer but rather his

accomplice; 2) the police had no reason to believe Respondent

was armed since they had already recovered the murder wea-

pon; 3) Respondent had not yet left town; and 4) the police

could have obtained a warrant, either during the hour while

they waited for Respondent’s return to the duplex or while

they had the house surrounded (J.A.22-25). The Minnesota

court specifically held that exigent circumstances did not exist

to justify Respondent’s warrantless arrest because officers

could have continued to stake out the house while trying to

obtain a warrant (J.A.23-25). The Minnesota court’s decision

is based on faulty reasoning and is wrong as a matter of public

policy.

The State contends that where, as in this case, police have

probable cause to believe that a suspect committed a felony

and also have probable cause to believe the suspect will be

located in a particular home, they can arrest the suspect there

without a warrant if they have specific and articulable facts

that a delay to get a warrant will gravely endanger police offi-

cers or other persons and wil! result in the escape of the

suspect. When these facts are present, the police need not stake

out the suspect’s home while obtaining a warrant. Such a

holding appropriately balances Fourth Amendment privacy

rights against the need for effective law enforcement and

protection of the public; it is therefore consistent with exist-

ing Fourth Amendment law. Moreover, it is a common sense

approach to warrantless home entries which is easily under-

stood and applied by police officers in the field.

24

A. Police May Make a Warrantless Entry to Arrest When

They Can Demonstrate an Urgent Need to Do So.

The Fourth Amendment proscribes “unreasonable” searches

and seizures. In order to assess the reasonableness of a search

or seizure, this Court has balanced the governmental interest

which allegedly justifies official intrusion against the inva-

sion of privacy that the search or seizure entails. Terry v.

Ohio, 392 U.S. 1, 21 (1968). Because of the sanctity of the

home, warrantless searches and seizures within the home, ab-

sent probable cause and exigent circumstances, are presump-

tively unreasonable. Payton v. New York, 445 U.S. 573 (1980).

The Court in Payton declined to decide what type of emer-

gency or “exigent circumstances” would justify a warrantless

home entry to arrest or search. Id. at 583. Although the police

bear a heavy burden when attempting to demonstrate an ur-

gent need that might justify warrantless searches or arrests,

Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984), this Court

has recognized several such emergency conditions. See, e.g.

Mincey v. Arizona, 437 U.S. 385 (1978) (search of homicide

scene for victims and the killer) ; Michigan v. Tyler, 436 U.S.

499 (1978) (ongoing fire) ; United States v. Santana, 427 U.S.

38 (1976) (hot pursuit of a fleeing felon) ; Warden v. Hayden,

387 U.S. 294 (1967) (hot pursuit of fleeing felon and possibil-

ity of violence to police and others) ; Schmerber v. California,

384 U.S. 757 (1966) (destruction of evidence); Ker v. Cali-

fornia, 374 U.S. 23 (1963) (potential for flight of felon and

destruction of evidence). In short, “a warrantless entry by

criminal law enforcement officials may be legal when there

is compelling need for official action and no time to secure a

warrant.” Michigan v. Tyler, 436 U.S. at 509.

B. Respondent’s Warrantless Arrest Was Justified Because

Police Had Reason to Believe Delay to Obtain a Warrant

Would Have Endangered Police Officers and Resulted

in Respondent’s Escape.

This Court has not specifically decided whether the possi-

bility of flight of a felon believed to be dangerous is an exigent

circumstance justifying a warrantless arrest.'* From the point

of view of the police officer in the field, the necessity for

quick action under these circumstances is as great as in the

true “hot pursuit” situation: if arrest were delayed, a danger-

ous felon could well destroy evidence, go into hiding, commit

more crimes, or harm police officers or others. Delay may well

allow the felon to contemplate and prepare an armed con-

frontation with police or the taking of a hostage. (This danger

to the police and the public is discussed more fully at pp. 31-34,

infra.) Prompt action is even more imperative where, as in

this case, the suspect is already in hiding because of the

suspect’s mobility; in many cases once the tip as to the sus-

pect’s whereabouts gets cold, so does the police investigation.

The following facts demonstrate the reasonableness of the

police action in this case:

14 Lower courts have generally found that the possibility of a dan-

gerous felon’s escape or the possibility of violence are exigent

circumstances making a warrantless arrest reasonable. See, e..

United States v. Cattouse, 846 F.2d 144 (2d Cir. 1988); United

States v. Davis, 785 F.2d 610 (8th Cir. 1986); United States v.

Salvador, 740 F.2d 752 (9th Cir. 1984), cert. denied, 469 U.S. 1196

(1985); United States v. Acevedo, 627 F.2d 68 (7th Cir. 1980);

United States v. Campbell, 581 F.2d 22 (2d Cir. 1978); United States

v. Flickinger, 573 F.2d 1349 (9th Cir. 1978); United States v. Don-

aldson, 606 F. Supp. 325 (D. Conn. 1985); Gaylor v. State, 284 Ark.

215, 681 S.W.2d 348 (1984); State v. Chavez, 98 N.M. 61, 644 P.2d

1050 (1982); Weddle v. State, 621 P.2d 231 (Wyo. 1980); State v.

Elderts, 62 Hawaii 495, 617 P.2d 89 (1980); People v. Abney, 81

In. 2d 159, 407 N.E.2d 543 (1980).

1) The offense involved was murder, the gravest possible

offense. In Welsh v. Wisconsin, 466 U.S. at 753, this Court

held that the gravity of the underlying offense is an extremely

important factor to be considered in deciding whether exigent

circumstances exist.

2) Respondent was a dangerous felon, despite the fact that

he was not the one who pulled the trigger. The police sus-

pected Ecker of committing a series of armed robberies. They

had probable cause to believe that Respondent aided Ecker in

the commission of this robbery/murder. Their experience in

the field led them to believe that Respondent probably also

participated in the planning of the offense. To the extent that

the co-defendant approves of, and assists in, the commission

of a serious, violent offense, a policeman in the field is justi-

fied in believing the co-defendant to be just as dangerous as

the one who pulled the trigger. Of course, each co-defendant

is criminally liable for all of the criminal acts committed dur-

ing the crime. See, e.g. Minn. Stat. §609.05 (1987).

3) The police had reason to believe Respondent might be

armed even though the weapon used by co-defendant Ecker

was recovered. Belief that Respondent might be armed was

reasonable for the following reasons: a) found in Respondent's

car were the murder weapon and two empty shoulder holsters

for handguns, as well as a pellet gun and a knife; b) Respon-

dent had ample opportunity after his escape from police to

obtain a firearm; and c) the offense which Respondent helped

commit was armed robbery and murder. The reasonableness

of the officer’s determination of exigent circumstances, like

his determination of probable cause, depends on the informa-

tion available to him at the time the decision to proceed is

made. Texas v. Brown, 460 U.S. 730, 742 (1983). That no gun

was found at Respondent’s arrest does not, therefore, make the

officer’s belief that he was armed unreasonable.

27

4) The police had reason to believe Respondent may be pre-

paring to flee, supported by the following facts: a) Respon-

dent had successfully fled police once and was in hiding; b)

police had received information that he might flee again; c)

Respondent’s statement to Julie Bergstrom, “tell them I left,”

could be reasonably construed by officers as a statement of

Respondent’s present intent to flee at that moment; and d)

the seriousness of the offense and the fact that the Respondent

was aware that the co-defendant had been arrested makes

flight more likely. See Welsh v. Wisconsin, 466 U.S. at 759

(White, J., dissenting) (“The seriousness of the offense with

which a suspect may be charged also bears on the likelihood

that he will flee and escape apprehension if not arrested im-

mediately.”’).

5) Although there is no evidence in the record to indicate

how long it would have taken police to obtain an arrest

warrant,'* it is clear that a warrant could not have been

15 Following is the sole evidence as to this point in the record:

Q. [By defense counsel]: Officer, I assume in the course of

your twenty years as a police officer you have secured arrest

warrants and arrested individuals based on warrants, is that

correct?

A. IBy Sergeant DeConcini): Yes, I have.

And you are aware that when this process is followed that

a judge actually has to physically review the warrant and de-

termine if it's proper to arrest somebody, is that correct?

A. That is correct.

And approximately how long—if there is some urgency

involved, the process can be expedited, can’t it?

A. Yes and no.

Q. Well, you could secure one within a couple hours under

normal circumstances, couldn't you?

A. Under normal circumstances, Monday through Friday,

from 8:00 a.m. to 4:00 p.m., yes.

Q. Have you ever secured an arrest warrant on a weekend?

A. No.

Q. Have you ever tried?

A. No.

(R.129-80).

obtained quickly, and certainly not before Respondent re-

turned to the duplex. An arrest warrant in Minnesota, unlike

a search warrant, must be combined with a criminal com-

nlaint, which requires the signature and approval of both a

county attorney and a judge. Therefore, in addition to locating

a judge, police must locate a county attorney, who must then

review all the police reports, decide whether to issue the

murder complaint, and have the documents typed and filed.

This process takes substantial time during the work week:

when the complaint is sought on the weekend the time re-

quired is greater still.

Police had probable cause to believe that Respondent had

participated in a violent felony using a firearm. They believed

he might be armed. They believed he was hiding from police

and was preparing to flee. They also had probable cause to

believe he was in the duplex. Under these circumstances, war-

rantless entry to arrest was justified by the probability that

the substantial delay involved in getting an arrest warrant

would result in Respondent's escape and the endangerment of

police officers and others.

16 The State submits that whether exigent circumstances exist should

not depend on the time required to obtain a warrant. An emer-

gency is an emergency, regardiess of the time needed to obtain

a warrant.

17 It could be argued that the police could have avoided a warrant-

less home entry by waiting outside the duplex in an unmarked

squad car and arresting Respondent outside the home when he

returned. However, since police believed Respondent was armed,

such a plan posed a grave risk of danger to police and neighbors

if a shootout on the street of a residential neighborhood ensued.

Moreover, the risk of Respondent's escape under that plan was

great since Respondent had, only the day before, demonstrated an

ability to outrun severa! police officers. These risks could not be

eliminated; dispatching a large number of policemen to the area

might minimize the risk, but such a move would great y deplete

police resources and might just as likely escalate possible violence

or prevent Respondent's return altogether.

C. Under the Dorman Analysis, Respondent's Warrantless

Arrest was Proper; the Dorman Analysis, However,

Should be Rejected by this Court.

Many lower courts, including the Minnesota Supreme Court,

use the so-called Dorman factors, either exclusively or as part

of a flexible “totality of the circumstances” test, in determin-

ing whether exigent circumstances exist to justify a warrant-

less arrest. These factors, enumerated in Dorman v. United

States, 435 F.2d 385, 392-93 (D.C.Cir. 1970), include the fol-

lowing: a) the gravity of the offense and whether the crime

was a violent one; b) whether the suspect is believed to be

armed; c) whether there is a clear showing of probable cause

to believe the suspect committed the crime; d) whether the

police have strong reason to believe that the suspect is in the

premises being entered; e) whether there is a likelihood the

suspect will escape if not swiftly apprehended ; and f) whether

the entry to arrest was peaceful. This Court has declined to

approve or disapprove ot the Dorman analysis, except to adopt

the first factor, the gravity of the offense, as important in

determining exigent circumstances. Welsh v. Wisconsin, 466

U.S. at 751-752. The Dorman analysis has been widely criti-

cized as being impractical, inflexible and outdated. See, e.g.,

2 W.LaFave Search and Seizure §6.1(f) 595, 599-600 (2d ed.

1987); Baldassano, Police Created Exigencies: Implications

for the Feurth Amendment, 37 Syracuse L.Rev. 147, 154-156

(1986); Harbaugh & Faust, “Knock on any Door”—Home

Arrests After Payton and Steagaid, 86 Dick L.Rev. 191, 224-

25 (1982); Note, Exigent Circumstances for Warrantless

Home Arrests, 23 Ariz. L.Rev. 1171, 1173-75 (1981).

Application of the Dorman analysis to the facts of this case

compels a finding of exigent circumstances: The crime was a

grave, violent one; Respondent was believed to be armed;

police had probable cause to believe Respondent committed

the crime and to believe he was in the duplex police had good

reason to believe Respondent might flee; and the entry to

arrest was peaceful. Nevertheless, the State submits that the

Dorman analysis should be rejected by this Court. Not only

are some of the factors now invalid or obsolete, but a check-

list of numerous factors is virtually impossible for a police

officer to evaluate on the spot. The factors can be difficult to

assess individually, and the difficulty is compounded by the

fact that the Dorman court did not indicate how the factors

were to be weighed, and what the result would be if some,

but not all, of the factors were present. This rule does not

enable well-intentioned police officers to decide quickly wheth-

er exigent circumstances exist, and is therefore unworkable.

% Police knocked on the door, which was answered by Louann Berg

strom (R.184-85).

1* The defendant in Santana was not armed Nor has this Court ex

plicitly required a higher quantum of probable cause or a peaceful

entry in its cases discussing exigent circumstances.

20 See 2 W.LaFave, Search and Seizure, §6.1(f) at 600

For example, take the situation presented by United States

Lindsay: the court, after a careful and elaborate evaluation of

“all the circumstances surrounding the entry,” was able to con-

clude that the first, second and sixth Dorman factors were pres-

ent, that the third and fourth factors were not present, that the

arguments on both sides concerning the fifth factor were “of

equal weight,” and that the seventh factor was a washout (as it

will ordinarily be, since it “works in more than one direction”)

Even assuming the police were able to resolve each of these

seven issues in a like manner while they were outside the

premises, does this tell them that a warrantless entry may be

made or that it may not be made’? Though Lindsay holds that a

warrantiess entry is unconstitutional on such facts, it is to be

doubted that an “fficer could have reached that conclusion with

confidence on the sis of Dorman, just as it is to be doubted

that Lindsay affords a basis for him to decide a case involv ng

a somewhat different mix of factors (footnotes omitted!

31

A judicial application of the Dorman “rule” will, in general,

result in a finding of exigency where police have probable

cause, knowledge of the suspect’s whereabouts, and facts in-

dicating that the suspect is dangerous and about to flee. Re-

stating the Dorman rule in this simpler way eliminates the

need for lengthy discussion and weighing of numerous factors,

while yet retaining Dorman’s essential requirements. The re-

quirements that remain after this distillation of the Dorman

rule involve judgments that police officers are forced to make

daily. Therefore, officers can apply the distilled rule more

quickly and more consistently than the original rule.

D. Under the Circumstances of this Case Police Were not

Required to Stake Out the Duplex While Seeking «

Warrant.

The Minnesota Supreme Court held that the warrantless

arrest was unconstitutional because the officers had sur-

rounded the duplex and could have continued to stake out the

house while trying to obtain a warrant. The court’s holding is

contrary to public safety and common sense. The court's asser-

tion ignores the reality that to maintain surveillance of the

“hideout” of a felon connected with an armed robbery and

murder is extremely dangerous to the police, to the defendant,

to the other occupants of the house, and to the public at large.

Had the police maintained a stakeout at the duplex for the

several hours required to obtain a murder complaint (or even

a search warrant), Respondent, who knew he was involved in

a robbery /murder, and that police were outside, may well have

become desperate to escape. The stakeout would give him time

to explore his options, including an armed shootout with the

police or the taking of a hostage from within. A desperate

Respondent may well have turned on his acquaintances, decid-

ing perhaps that one of the Bergstroms must have reported

his whereabouts to police. Meanwhile, the presence of numer-

ous squad cars in a populated area not only disrupts local

activities, but may well draw curious bystanders to the area

where they could be harmed by the defendant's likely resis-

tance to arrest. “The Fourth Amendment does not require

police officers to delay in the course of an investigation if

to do so would gravely endanger their lives or the lives of

others,” Warden v. Hayden, 387 U.S. 294, 298-99 (1967).

Moreover, stakeouts are not always effective in preventing

escape. For examples of stakeouts that did not work, see

United States v. Cattouse, 846 F.2d 144, 147-48 (2d Cir. 1988) ;

United States v. Donaldson, 606 F Supp. 325, 332 (D. Conn.

1985).

For these reasons several lower courts have held that a

police stakeout is not required under facts similar to those in

the instant case. See United States v. Salvador, 740 F.2d 762

(9th Cir. 1984), cert. denied 469 U.S. 1196 (1985); United

States v. Webster, 750 F.2d 307 (5th Cir. 1984) ; United States

v. Williams, 612 F.2d 735, 739 (3rd Cir. 1979), cert. denied

445 U.S. 934 (1980) (“[A])n immediate response by entry was

necessary to prevent the occurrence of contingencies which

would have made appellant's capt re alive and without harm

to the police or others impossible, or at least, unlikely; le,

that appellant would barricade himself in the residence and

engage in a shootout or attempt an armed escape with or with-

out hostages.”) ; United States v. Campbell, 681 F.2d 22 (2nd

Cir. 1978); United States v. Brightwell, 563 F.2d 569 (3rd

Cir. 1977), cert. denied 489 U.S. 849 (1978) ; United States v.

McLaughlin, 525 F.2d 517, 621 (9th Cir. 1976), cert. denied,

427 U.S. 904 (1976) ("The officers .. could take their

chances with respect to the destruction of the evidence, obtain

reinforcements, and settle in for several hours of siege while

awaiting the arrival of the warrant, or move quickly to arrest

the occupants and to secure the premises and the evidence

while awaiting the arrival of the warrant. We cannot accept

the view that the Fourth Amendment requires that the offi-

cers pursue the former course. To do so would ignore the

legitimate interests of the neighbors whose surroundings

should not be impressed with a state of siege, innocent persons

who might be injured accidentally as a consequence of a large

number of armed and mobile men, and the interest of the

general public in efficient law enforcement and certain pun-

ishment for wrongdoers.”); United States v. Shye, 492 F.2d

886, 892 (6th Cir. 1974) (“Although there was little likeli-

hood of escape, due to the presence of so many officers, there

was, nevertheless, a substantial likelihood of bloodshed or

an impending siege if quick action were not taken.); State v.

Girard, 276 Or. 611, 5615, 565 P.2d 445, 447 (1976) (“Defen-

dant argued that the two officers could have ‘surrounded’ the

house to avoid escape while they waited for reinforcements.

That involves a large measure of speculation, depending upon

a variety of factors relating to the feasibility of ‘surrounding’

the house or otherwise preventing escape, including the size

of the house, the number of exits, the proximity of the house

to cover for a person bent on escape, visibility, ete. In the

exigencies of the moment, the officers could not reasonably

be expected to put ‘ine weights in the scale in weighing

the chances of securing the house or of losing their quarry.”)

See aleo 2 W. LaFave, Search and Seizure, § 6.1(f), at

606-06 (“Not infrequently, a prompt entry to arrest is

called for in order to minimize the risk that someone will be

injured or killed. Sometimes the risk is to another person

who is also in the premises to be entered, such as an under-

cover agent or informant, a possible hostage, or an individual

the person to be arrested knows has cooperated with the

police. Delay may also increase the risk of harm to persons

outside the premises. The passage of time may enhance the

ability of those inside to make an effective forcible resistance

when the police ultimately make their entry to arrest. And if

the police are required to stake out the premises while a

warrant is obtained, this may cause curious bystanders to

gather in the immediate vicinity, where they might well be

harmed in the event of forcible resistance to the police

entry).

It has been suggested that the question of whether or not

the police must stake out the premises to obtain a warrant

should depend on whether the arrest was planned in advance,

in which case a warrant is required unless exigent circum-

stances exist before police go out into the field; or whether it

was made in the course of an ongoing investigation in the

field, in which case a warrantless arrest is presumptively

legal. 2 W.LaFave, Search and Seizure §6.1(f) at 600-602.

The Minnesota Supreme Court, relying on this distinction,

characterized the arrest as “planned” because police made a

decision to arrest Respondent when he returned to the duplex,

and no warrant was sought during the 45 minutes between

that decision and the actual arrest. Respondent's arrest, how-

ever, was not a truly “planned” arrest, where police, after

completing their field investigation, decide to arrest the de-

fendant hours, days or weeks later at some convenient time.

(See, %, the facts surrounding the arrests of Payton and

2! But cf. United States v. Patino, 830 F.2d 1413 (7th Cir. 1987);

United States v. Alvarez, 810 F.2d 879 (9th Cir. 1987); United

States v. Adams, 621 F.2d 41 (ist Cir 1980); People v. Atkinson,

116 Muc d 771, 456 N.¥.2d 328 (19082); and State wv. Peller, 287 Or

255, 508 P 2d G84 (1979) (Courts decide warrantiess entry was not

justified by exigent circumstances under facts of case, courts sug

gest that police should have staked out the premises until a war

rant could be obtained)

Riddick in Payton v. New York, 445 U.S. 573 (1980).) Re-

spondent’s arrest was the culmination of an ongoing, con-

tinuous field investigation into the identity and present loca-

tion of Ecker’s co-defendant. At 2:00 p.m. Sergeant DeConcini

received the information corroborating the informant's tip.

He then believed that Respondent was probably Ecker’s co-

defendant and that he may be returning to the duplex. At that

time Sergeant DeConcini felt he had probable cause to arrest

Respondent, and he issued the “pickup order.” He did not

“plan” to arrest Respondent at the duplex while he may have

hoped to arrest Respondent soon at that address, Sergeant

DeConcini did not know for certain whether, and when, Re-

spondent would return to the duplex. When Sergeant DeCon-

cini issued his “pickup order,” he intended to arrest Respon-

dent wherever he could be found—on the street, in the bus

depot, at the duplex, or someplace else. A warrant was not

required to arrest Respondent on the street or in the bus

depot or other public place, [/nited States v. Watson, 423 US.

411 (1976) only if Respondent were found in a private home

might a warrant be necessary.*’ Sergeant DeConcini did not

obtain a warrant to cover this possibility because he knew a

great deal of time would be required to obtain one and he

believed he was faced with an emergency situation the neces-

sity of arresting a felon who was involved in a murder and

was in hiding, vefore he could flee the city or harm anyone

else

Moreover, even if exigent circumstances did not exist before

police surrounded the duplex, the necessity for quick police

action arose after police arrived at the home. An exigency

requiring police action may arise at any time after probable

22 Sergeant DeConcini did not believe that Respondent had any pri

vacy expectations in the Bergstroms home, all the facts he pos

sessed indicated otherwise

cause is established. See Cardwell v Lewis, 417 U.S. 583, 595-

96 (1974) (“Assuming that probable cause previously existed,

we know of no case or principle that suggests that the right to

search on probable cause and the reasonableness of seizing a

car under exigent circumstances are foreclosed if a warrant

was not obtained at the first practicable moment. . The

exigency may arise at any time, and the fact that the police

might have obtained a warrant earlier does not negate the

possibility of a current situation s necessitating prompt police

action) Before entering the duplex, police telephoned and

asked Respondent to come out by doing so police were able

both to confirm that Respondent was in the duplex and to give

Respondent an opportunity to come out of the duplex, either

to give himself up peaceably or to further the police investiga-

tion by explaining his innocence However, when police heard

a male, presumably Respondent, instruct “Julie” to “tell them

1 left.” police could reasonably have decided that Respondent

intended to flee. under the facts of this case, police were then

justified in entering immediately to prevent Respondent's

escape

This case clearly demonstrates many of the difficulties

faced by police officers in the field, which were described by

Justice White in his dissenting opinion in Payton v. New York,

445 U.S. at 618-619:

The policeman on his beat must now make subtle dis-

criminations that perplex even judges in their chambers.

As Mr. Justice Powell noted, concurring in United States

„ Watson, supra, police will sometimes delay making an

arrest, even after probable cause is established. in order

to be sure that they have enough evidence to convict.

Then, if they suddenly have to arrest, they run the risk

that the subsequent exigency will not excuse their prior

37

failure to obtain a warrant. This problem cannot effec-

tively be cured by obtaining a warrant as soon as probable

cause is established because of the chance that the war-

rant will go stale before the arrest is made.

Further, police officers will often face the difficult

task of deciding whether the circumstances are suffi-

ciently exigent to justify their entry to arrest without a

warrant. This is a decision that must be made quickly in

the most trying of circumstances. If the officers mis-

takenly decide that the circumstances are exigent, the

arrest will be invalid and any evidence seized incident to

the arrest or in plain view will be excluded at trial. On

the other hand, if the officers mistaxenly determine that

exigent circumstances are lacking, they may refrain from

making the arrest, thus creating the possibility that a

dangerous criminal will escape into the community. The

police could reduce the likelihood of escape by staking out

all possible exits until the circumstances become clearly

exigent or a warrant is obtained. But the costs of such a

stakeout seem excessive in an era of rising crime and

scarce police resources.

The primary reason for the warrant requirement is to inter-

pose a “neutral and detached magistra ” between the citizen

and the possibly overzealous police officer. But when, as in

this case, the officer faces an emergency requiring immediate

action to prevent possible death or injury, the warrant re-

quirement must yield. To hold otherwise is to tilt the equilib-

rium between privacy rights and public safety.

CONCLUSION

The judgment of the Minnesota Supreme Court should be

reversed.

Respectfully submitted,

HUBERT H. HUMPHREY, III

Minnesota Attorney General

102 State Capital

St. Paul, MN 55155

THOMAS L. JOHNSON

Hennepin County Attorney

ANNE E. PEEK

Asst. Hennepin County

Attorney

Attorney of Record

ELIZABETH D. MORAN

Associate Attorney

Hennepin County Attorney’s

Office

C-2000 Government Center

Minneapolis, MN 55487

Phone: (612) 348-4550

Attorneys for Petitioner

November, 1989