Amicus Curiae Brief — Minnesota v. Olson

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Supreme Court, US:

FILED

No, 88-1916 JOSEPH F. SPANIOL, JR.

Jn the Supreme Court of the United States

OCTOBER TERM, 1989

ov)

STATE OF MINNESOTA, PETITIONER

RALPH D. OLSON

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF MINNESOTA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

STEPHEN J. MARZEN

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the defendant had a legitimate expectation

of privacy in the home in which he had spent the previous

night as a guest.

2. Whether exigent circumstances justified the war-

rantless entry of a home to arrest the defendant.

(I)

TABLE OF CONTENTS

Interest of the United States .......................

Neen nen ee cece ccccccces

Argument:

An overnight guest ordinarily does not enjoy

Fourth Amendment rights in his host’s prem-

cee ces ececesccvcscvces

A. To invoke the protection of the Fourth

Amendment with respect to physical

searches of real or personal property, a de-

fendant must prove a right to exclude others

Ne Cece e cece s esses.

B. Overnight guests such as respondent have

no right to exclude others ...............

Exigent circumstances exist whenever a suspect

implicated in a violent crime or thought to be

armed discovers that he has been cornered by

da. sbeeabeessesvecesese

Neen ne ee ecccevecers

TABLE OF AUTHORITIES

Cases:

Berger v. New York, 388 U.S. 41 (1967) ..........

Bose Corp. v. Consumers Union of United States,

Ba MD Pu, GP MUUED 2. cc ccc cece eee

Chupp v. State, 509 N.E.2d 835 (Ind. 1987) ......

Cardwell v. Lewis, 417 U.S. 583 (1974) ..........

Commonwealth v. Tann, 500 Pa. 593, 459 A.2d

Ts ic cee ccc ceececes

Commonwealth v. Wagner, 486 Pa. 548, 406 A.2d

aes ie na ces cweesvcces

Coolidge v. New Hampshire, 403 U.S. 443 (1971)...

(III)

14-

a N=

Cases — Continued: Page

Dorman vy. United States, 435 F.2d 385 (D.C. Cir.

UD nx ces tecawndnchddbue bhuakeeadeseswas 5, 21

Goldman v. United States, 316 U.S. 129 (1942)... 10-11

Hicks v. State, 96 Nev. 82, 605 P.2d 219 (1980) ... 16

Inwood Laboratories, Inc. v. Ives Laboratories,

Rar., GSU. GROG on cc avccedovesvcesss 19

Jones v. United States, 362 U.S. 257 (1960) ....... a. Be

13, 17, 20

Kaiser Aetna v. United States, 444 U.S. 164

Nc kccvckscxsesntans stameaeuaeenneess 11

Katz v. United States, 389 U.S. 347 (1967) ...... 9, 11, 13

Lee v. State, 419 N.E.2d 825 (Ind. App. 1981) .... 16

Llaguno v. Mingey, 763 F.2d 1560 (7th Cir. 1985) . 21

National Treasury Employees Union v. Von Raab,

MB Be er ee 15

New York v. Belton, 453 U.S. 454 (1981) ......... 22

New York v. Class, 475 U.S. 106 (1986) .......... 14

Oliver v. United States, 466 U.S. 170 (1984) ...... 14

Olmstead v. United States, 277 U.S. 438 (1928) ... 11

Payton v. New York, 445 U.S. 573 (1980) ........ 21, 26

People v. Carter, 128 Mich. App. 541, 341 N.W.2d

128 (1983), rev’d, 442 Mich. 938, 369 N.W.2d

SE ko ciSciaba cu Sane caueeiusuubas asus 16

People v. Rodriguez, 69 N.Y .2d 159, 513 N.Y.S.2d

Fk ee OA oo cnc evcbécwnskens 16

People v. Wagner, 104 Mich. App. 169, 304 N.W.

ee Eo oc con eens ec deeecaaektanes 17

Rakas v. Illinois, 439 U.S. 128 (1978) ............ 9, 12,

13, 16, 17, 19, 20

Rawlings v. Kentucky, 448 U.S. 98 (1980) ........ 13

Rios v. United States, 364 U.S. 253 (1960) ........ 13

Salvador v. United States, 505 F.2d 1348 (8th Cir.

EE Ss ccd bch eceucan Pack eee 21

Silverthorne Lumber Co. v. United States, 251 U.S.

EN oC icaweusiues crehiceereereeeee 12

Simmons v. United States, 390 U.S. 377 (1968) .... i0

Cases — Continued:

State v. Adkins, 346 S.E. 2d 762 (W.Va. 1986) ....

State v. Allen, 188 Mont. 135, 612 P.2d 199

SEE Sins aa ckuouwl she éuucedéen tee uawaes

State v. Isom, 196 Mont. 330, 641 P.2d 417

DED deh ile Ganitin eo ots bu a calats Gn 44 de oo alas

State v. Whitehead, 229 Kan. 133, 622 P.2d 665

ES ig gh Oa te I Ps ae eer a

Steagald v. United States, 451 U.S. 204 (1981) ....

Turner v. Safley, 482 U.S. 78 (1987) .............

United States v. Adamo, 742 F.2d 927 (6th Cir.

1984), cert. denied, 469 U.S. 1193 (1985) .......

United States v. Baldacchino, 762 F.2d 170 (ist

Ere. c 4450 Gaocssuccktvacentewaekseans

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

DC nud heh bkusd de seuseuesaue eeeenekuees

United States v. Crespo, 834 F.2d 267 (2d Cir.

1987), cert. denied, 108 S. Ct. 1471 (1988) ......

United States v. Echegoyen, 799 F.2d 1271 (9th

RR oe re eer eae te

United States v. Kulcsar, 586 F.2d 1283 (8th Cir.

SE a dk cob 6 Cas 646 ow hs ae a wie dees sneaks

United States v. Lindsay, 506 F.2d 166 (D.C. Cir.

EN Ne ence on cae eda Cae uae oe

cca eiceces Ciee Cl heeetereneedeinae,

United States vy. Martinez-Gonzalez, 686 F.2d 93

RP ss 6 5 6 cos pee abead boa dee aan

United States v. Meyer, 656 F.2d 979 (Sth Cir.

1981), cert. denied, 465 U.S. 1065 (1984) .......

United States v. Nabors, 761 F.2d 465 (8th Cir.),

cert. denied, 474 U.S. 851 (1985) ..............

United States v. Rackley, 742 F.2d 1266 (11th Cir.

CE dhe k cewksnedus doused ewadb adn adeees

RR rear ina Or ara Snes rn a mare Aa

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

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

21, 24

24, 26

Cases — Continued: Page

United States v. Santana, 427 U.S. 38 (1976) ...... 25

United States v. Shye, 492 F.2d 886 (6th Cir.

I a oc ag Se a 21

United States v. Standridge, 810 F.2d 1034 (11th

Cir.), cert. denied, 481 U.S. 1072 (1987) ....... 21, 24

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

Cir. 1983), cert. denied, 465 U.S. 1036 (1984) ... 26

United States v. Williams, 612 F.2d 735 (3d Cir.

1979), cert. denied, 455 U.S. 934 (1980) ........ 24, 26

Vale v. Louisiana, 399 U.S. 30(1970) ......0..... 25

Vance v. North Carolina, 432 F.2d 984 (4th Cir.

clei elie cave ae deed aces gh eae «640 21

Warden v. Hayden, 387 U.S. 294 (1967) ......... 25

Welsh v. Wisconsin, 466 U.S. 740 (1984) ....... 21, 23, 25

Constitution:

ee ee, Oe on cs ecu eweuweae 1, 7, 8, 9,10,

11, 12, 14, 20, 22, 26

Miscellaneous:

| Annals of Cong. 452 (1789) ................... 10

2 W. Blackstone, Commentaries, ch. 1 .......... 11

Donnino & Girese, Exigent Circumstances for a

Warrantless Home Arrest, 45 Alb. L. Rev. 90

ieee eel eeh ach CAECEOASS EOL CRN O48s 23

Harbaugh & Faust, “Knock on Any Door: — Home

Arrests After Payton and Steagald, 86 Dick. L.

i cD ote ages aad aewaee 8 23

W. LaFave, Search and Seizure (2d ed. 1987):

a Eis ARS Re SRP: Pra Sree ree 23

ee ae Ped ane ak a dels eae nt 26

I aw ae en 23

Jn the Supreme Court of the Bnited States

OCTOBER TERM, 1989

No. 88-1916

STATE OF MINNESOTA, PETITIONER

Vv.

RALPH D. OLSON

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF MINNESOTA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents two questions: whether the Fourth

Amendment protects an overnight guest against an un-

lawful search of his hosts’ home and, if so, whether ex-

igent circumstances justified the warrantless entry into the

home in this case.

Fugitives from justice and other suspects are frequently

found in the homes of others. Accordingly, the United

States has a significant law enforcement interest in the

resolution of the question when, if-ever, house guests can

claim the protection of the Fourth Amendment in the

premises in which they are found. In addition, federal law

enforcement agents must Often arrest criminal suspects

without warrants either in their own homes or the homes

(1)

of others on the basis of exigent circumstances. The

United States therefore has an interest in the Court’s

analysis and conclusion with respect to when cir-

cumstances are sufficiently exigent to permit law enforce-

ment officers to make a warrantless entry into a home to

make an arrest.

STATEMENT

Following a jury trial in the Hennepin County, Min-

nesota, District Court, respondent was convicted on one

count of first degree murder, three counts of armed rob-

bery, and three counts of second degree assault. He was

sentenced to life imprisonment on the murder count and a

total of nine years’ imprisonment on the three armed rob-

bery counts. The second degree assault counts merged into

the armed robbery counts for purposes of sentencing. On

appeal, the Minnesota Supreme Court reversed respon-

dent’s convictions and ordered a new trial. Pet. App.

Al-Al4.

1. Just before 6 a.m. on the morning of July 18, 1987,

a lone gunman robbed a gasoline station in Minneapolis,

Minnesota, and shot and killed the station manager. The

police learned of the robbery almost immediately and

received a description of the robber that seemed to match

Joseph Ecker. Two officers promptly drove to Ecker’s

home. At about 6:15 a.m., just as the officers arrived at

Ecker’s home, a brown Oldsmobile appeared in a nearby

alley. The officers left their squad car, drew their

weapons, and approached the Oldsmobile. The driver of

the Oldsmobile put the car into reverse and rapidly backed

away from the officers. The officers ran back to their

squad car and pursued the Oldsmobile. Pet. App. A2,

A16-Al7.

The driver of the Oldsmobile lost control of the car as

he tried to turn out of the alley. Two persons then jumped

out of the Oldsmobile and ran away on foot. After addi-

tional officers arrived, the police searched Ecker’s house

and captured Ecker inside. Ecker was later identified as

the gasoline station gunman. The other occupant of the

Oldsmobile escaped. The officers then searched the

Oldsmobile. They found a sack of money and a gun that

was later identified as the murder weapon. They also

found a certificate of title to the car containing respon-

dent’s name and a letter addressed to “Roger R. Olson.” In

addition, they found a video movie rental receipt made out

to respondent and dated July 16, 1987, just two days

earlier. The police verified that respondent lived at the ad-

dress listed on the letter. Pet. App. A2, Al7.

Fhe next day, the police received a call from a woman

who said that a man named “Rob” had told several per-

sons that he was the driver of the getaway car in the

gasoline station robbery. The caller added that “Rob” was

planning to leave town soon by bus. She further told the

police that two of the persons “Rob” had told about his in-

volvement in the crime were Louanne and Julie

Bergstrom, who lived at 2406 Fillmore, N.E., in Min-

neapolis. Pet. App. A3, Al7-Al18.

Two detectives went to the house at that address, which

was a duplex. A woman who lived in the lower unit said

that the Bergstroms lived in the upper unit but were not

home. She added that respondent was staying upstairs but

was absent at the moment. She promised to call the police

when respondent returned. Pet. App. A3, Al8.

At approximately 2 p.m. that afternoon, the police

department issued an order to pick up respondent. Thirty

to 45 minutes later, the woman from the lower unit of the

duplex called the police and said that respondent had

returned to the upstairs unit. Once again, officers were

dispatched to that address. Pet. App. A3-A4, Ai8-Al9.

After the officers had taken positions outside the duplex, a

police detective telephoned the upstairs unit and reached

Julie Bergstrom. The detective told her that he wanted

respondent to come outside, whereupon the detective

overheard a male voice whisper, “Tell them I left.”

Bergstrom then told the detective, “Rob left already.” Pet.

App. A4, Al9.

The detective relayed that exchamge to the officers sta-

tioned outside the house. The officers then drew their

weapons and entered the house. They found respondent

hiding in a closet and placed him under arrest. After his

arrest, respondent admitted that he drove the Oldsmobile

getaway car in the robbery. Pet. App. A4, A19.

2. The trial court denied respondent’s motion to sup-

press his pretrial statement. At the suppression hearing,

respondent testified that (1) he stayed with the Bergstroms

one night; (2) he had no bed and slept on the floor; and (3)

he had not used any closet or dresser in the house, and he

had only one bag of clothes, which he was carrying with

him. Pet. App. Al9. Based on that evidence, the trial

court held that respondent had no reasonable expectation

of privacy in the Bergstroms’ house. Pet. App. A20-A22.

The court therefore concluded that respondent lacked

stangling to challenge the admission of his statement to the

police, even if that statement was the product of an illegal

entry into the Bergstroms’ house. Pet. App. A21.

3. The Minnesota Supreme Court reversed. It first

held that respondent had standing to challenge the police

entry into the premises at 2406 Fillmore. The court held

that respondent had a legitimate expectation of privacy as

a guest in the Bergstroms’ home because he “had permis-

sion to stay at 2406 Fillmore for some indefinite period,”

and because Louanne Bergstrom had testified that re-

spondent “had the right to allow or refuse visitors entry.”

Pet. App. A8. The court drew an analogy between respon-

dent’s situation and that of the defendant in Jones v.

United States, 362 U.S. 257 (1960). The court found suffi-

cient similarity between the circumstances of respondent

and Jones because both defendants had been overnight

guests and had only a few clothes with them during their

respective stays, even though Jones, unlike respondent,

was the solitary occupant of his friend’s apartment and

possessed a key. See 362 U.S. at 259.

The court next turned to the question whether exigent

_ circumstances justified a warrantless entry into the

Bergstroms’ home. To determine whether exigent cir-

cumstances existed, ihe court applied the balancing test

proposed in Dorman yv. United States, 435 F.2d 385,

392-393 (D.C. Cir. 1970) (en banc). As applied by the Min-

nesota Supreme Court, that test calls for the court to

balance the following factors:

(a) whether the offense is a grave offense, particularly

a crime of violence; (b) whether the suspect is

reasonably believed to be armed; (c) whether the

showing of probable cause connecting the defendant

to the offense is more than minimal; (d) whether the

police have strong reasons to believe that the suspect

is in the premise being entered; and (e) whether there

is a likelihood that the suspect will escape if not swift-

ly apprehended.

Pet. App. Al0 n.1.!

Applying the Dorman test to the facts of this case, the

Minnesota Supreme Court concluded that the cir-

cumstances were not sufficiently exigent to justify the war-

' The court of appeals in Dorman actually listed seven factors. In

addition to the five listed by the Minnesota Supreme Court, the re-

maining two factors were whether the entry was made peaceably and

whether the entry was made at night. 435 F.2d at 393.

rantless entry into the Bergstroms’ unit to arrest respon-

dent. Factor (a) was uninformative, according to the

court, because although murder is a grave crime, respon-

dent only drove the getaway car. Factor (b) counseled

weakly against a finding of exigent circumstances, because

the police had already recovered the murder weapon,

which the court concluded meant that respondent was

probably unarmed. Factor (c) also counseled weakly

against a finding of exigent circumstances; the Minnesota

Supreme Court did not reject the trial court’s finding of

probable cause, but it did state that probable cause

depended “in large part on the reliability of the unknown

informant.” Factor (d) favored a finding of exigent cir-

cumstances, because the police had strong reason to

believe that respondent was in the duplex when they

entered it. Factor (e) was apparently the dispositive con-

sideration for the Minnesota Supreme Court: respondent

had not yet left town, the police knew where he was, and

the presence of “[t}]hree or four Minneapolis police

squads” surrounding the house meant that respondent

“was going nowhere.” Pet. App. Al0-Al1.

Under these circumstances, the court held, the police

should have tried to obtain an arrest warrant for respon-

dent before entering the Bergstroms’ home to arrest him.

The court acknowledged that it was not clear that the

police could have obtained an arrest warrant in the hour

between the time the police issued the pick-up order for

respondent (2 p.m.) and the time the police arrived at the

Bergstroms’ house (approximately 3 p.m.). The court

noted, however, that the State did not “suggest[{] that the

warrant could not have been obtained,” and a warrant to

search the Oldsmobile was obtained in two and one half

hours on the previous day “when the urgency to search an

already impounded car was much less.” Pet. App. Al2.

Accordingly, the court concluded that the State failed to

meet its burden to establish exigent circumstances, and the

entry into the Bergstroms’ home was therefore unlawful.

Pet. App. Al3-A14.

SUMMARY OF ARGUMENT

1. The Fourth Amendment did not protect respon-

dent, an overnight guest, from an unlawful entry into the

Bergstroms’ home. In order to mount a Fourth Amend-

ment challenge to a search, the defendant must show that

he had a legitimate expectation of privacy in the property

that was searched. Respondent may not claim a legitimate

expectation of privacy in the Bergstroms’ home because he

had neither a property interest in that home nor an

equivalent non-property interest recognized by social con-

vention. The best measure of respondent’s lack of any

property Or non-property interest sufficient to trigger

Fourth Amendment rights is that respondent did not have

the right to exclude others from the Bergstroms’ home or

from the place in the home where he was found. The fact

that respondent was legitimately on the premises as an in-

vited guest is not sufficient to give him a right to challenge

an entry into the premises; a person who bases his Fourth

Amendment challenge solely on his legitimate presence on

ihe premises is not challenging the invasion of his own

rights, butts in effect challenging the invasion of the rights

ot the third parties whose guest he was.

— |

2. Even if respondent had standing to challenge the

police entry into the Bergstroms’ home, the state court was

wrong In suppressing his post-arrest statements, because

exigent circumstances justified the warrantless entry. The

state court relied on a multi-factor test to find that the

police acted without exigent circumstances. Based on that

lest, the state court concluded that the police should not

have entered the Bergstroms’ house even after respondent

learned that the police were pursuing him and knew where

he was.

The multi-factor test on which the state court relied

lacks sufficient predictability to guide law enforcement of-

ficers in the highly charged setting of a police stake-out. A

simpler and clearer rule would provide better guidance to

police without encroaching on Fourth Amendment in-

terests. In our view, the circumstances should be deemed

exigent when a suspect who is implicated in a serious crime

or who is thought to be armed discovers that he has been

cornered by the police and faces imminent arrest. In that

setting, a delay in arresting the suspect creates risks to the

police, to other persons in the house where the suspect is

staying, and to innocent passers-by. A suspect cornered in

that fashion over a several-hour period may, at the least,

seek to destroy evidence, or he may take hostages, attempt

a break-out, or engage in a shoot-out with the police.

Because of the dangers so often presented in that setting,

the police showld not have to identify a particular risk that

renders the circumstances exigent in a particular case. In-

stead, the police should be entitled to act without delay in

order to defuse an inherently volatile situation before the

danger materializes in the form of injury to persons or loss

of evidence.

ARGUMENT

1. AN OVERNIGHT GUEST ORDINARILY DOES NOT EN-

JOY FOURTH AMENDMENT RIGHTS IN HIS HOST’'S

PREMISES

A. To Invoke The Protection Of The Fourth Amendment With

Respect To Physical Searches Of Real Or Personal Property, A

Defendant Must Prove He Had A Right To Exclude Others

From The Premises

In Rakas v. Illinois, 439 U.S. 128, 143 (1978), this Court

held that the “capacity to claim the protection of the

Fourth Amendment depends * * * upon whether the per-

son who claims the protection of the Amendment has a

legitimate expectation of privacy in the invaded place.”

That test, derived from Katz v. United States, 389 U.S.

347, 353 (1967), requires that a defendant have a subjec-

tive expectation of privacy that society recognizes as

reasonable. Rakas, 439 U.S. at 143-144 n.12; Katz, 389

U.S. at 361 (Harlan, J., concurring). The requirement that

a defendant have a legitimate expectation of privacy

follows from the principle that Fourth Amendment rights

are personal in nature: “A person who is aggrieved by an

illegal search and seizure only through the introduction of

damaging evidence secured by a search of a third person’s

premises or property has not had any of Ais Fourth

Amendment rights infringed.” 439 U.S. at 134 (emphasis

added). Thus, Rakas disapproved the reasoning of Jones

v. United States, 362 U.S. 257, 267 (1960), which had

allowed anyone “legitimately on the premises” to contest a

search or seizure, because that standard allowed defend-

ants to assert the Fourth Amendment rights of third par-

ties. The legitimately-on-the-premises standard

would permit a casual visitor who has never seen, or

been permitted to visit, the basement of another's

house to object to a search of the basement if the

visitor happened to be in the kitchen of the house at

the time of the search. Likewise, a casual visitor who

walks into a house one minute before a search of the

house commences and leaves one minute after the

search ends would be able to contest the legality of the

search. The first visitor would have absolutely no in-

terest or legitimate expectation of privacy in the base-

ment, the second would have none in the house, and it

advances no purpose served by the Fourth Amend-

ment to permit either of them to object to the

lawfulness of the search.

439 U.S. at 142.

The first clause of the Fourth Amendment makes clear

that the Amendment focused principally on the protection

of interests in property. The clause states that the Amend-

ment protects “(t}he right of the people to be secure in

their persons, houses, papers, and effects, against

unreasonable searches and seizures * * * *.”? As applied

to physical searches of real or personal property, that

language suggests that ordinarily a defendant must have a

property interest in the place or thing that is searched in

order to have a right to object to the search. See Simmons

v. United States, 390 U.S. 377, 389-390 (1968); Goldman

2 As originally drafted by James Madison, the emphasis on proper-

ty rights was even clearer. The draft amendment safeguarded “([t)}he

rights of the people to be secured in their persons|,] their houses, their

papers, and their other property, trom all unreasonable searches and

seizures * * * *.” | Annals of Cong. 452 (1789) (emphasis added). The

version of the amendment reported by the Committee of Eleven

deleted the repetitious use of the possessive “their,” and narrowed the

phrase “other property” to “effects.” /d. at 783. The Committee of

Three split the amendment into two clauses, one securing the people's

liberty from unreasonable searches and seizures and a second

regulating the use of warrants. But the Framers’ intention to protect

property rights is evident at every stage of the drafting process.

v. United States, 316 U.S. 129, 134-136 (1942); Olmstead

v. United States, 277 U.S. 438, 464-466 (1928). To have a

property interest in particular premises generally means

that the owner enjoys the right to exclude others from the

premises. For of all the rights attaching to property,

perhaps the most important is the right to exclude others.

Kaiser Aetna v. United States, 444 U.S. 164, 179-180

(1979) (“the ‘right to exclude’ * * * [is] universally held to

be a fundamental element of the property right”). See 2 W.

Blackstone, Commentaries, ch. 1. Thus, “one who owns

or lawfully possesses or controls property will in all

likelihood have a legitimate expectation of privacy by vir-

tue of this right to exclude.” Rakas, 439 U.S. at 144 n.12.

In Katz v. United States, this Court rejected the conten-

tion that the Fourth Amendment “limits only searches and

seizures of tangible property” and extended the Constitu-

tion’s protection to persons who have a legitimate expecta-

tion of privacy in a particular place or thing. 389 U.S. at

352-353; id. at 361 (Harlan, J., concurring). The Court in

Katz did not attempt to define with precision when per-

sons can be said to have a legitimate expectation of

privacy, and the Court has not subsequently embraced any

single test for making that determination. We submit that,

at least in the case of physical searches of real or personal

property, a person who does not have a recognized legal

interest in property may invoke the protection of the

Fourth Amendment with respect to that property only if

he enjoys the distinguishing feature and chief quality of

the property rights that are explicitly protected by the

Amendment —the right to exclude others. Thus, in order

for a person to have a protected Fourth Amendment in-

terest in a particular place, he must have a right to exclude

others from that place, either by “reference to concepts of

real or personal property law,” or by virtue of “under-

Standings that are recognized and permitted by society.”

Rakas, 439 U.S. at 144 n.12.

The “right to exclude” test is consistent with this Court’s

Fourth Amendment decisions. In Katz, for example, the

Court held that a defendant who placed a telephone call in

an enclosed booth had a legitimate expectation of privacy.

389 U.S. at 352-353, 359. The “critical fact,” id. at 361

(Harlan, J., concurring), on which that privacy expecta-

tion rested was the defendant’s reasonable assumption that

when he closed the door behind him —thereby excluding

others from his conversation — he would not be overheard:

One who occupies [a telephone booth], shuts the door

behind him, and pays the toll that permits him to

place a call is surely entitled to assume that the words

he utters into the mouthpiece will not be broadcast to

the world. To read the Constitution more narrowly is

to ignore the vital role that the public telephone has

come to play in private communication.

Id. at 352 (opinion of Court). Although the defendant in

Katz may not have had a possessory interest in the

telephone booth for purposes of state property law, he had

a right to exclude others for the duration of his telephone

call as a matter of social custom and convention, and for

that reason had a legitimate expectation of privacy.

The same right-to-exclude theme runs through the ex-

amples of other legitimate expectations of privacy pro-

vided by the Katz Court. The Court remarked that “[n]o

less than an individual in a business office, in a friend’s

apartment, or in a taxicab, a person in a telephone booth

may rely upon the protection of the Fourth Amendment.”

389 U.S. at 352. In the case cited in the margin to illustrate

the first example, Silverthorne Lumber Co. v. United

States, 251 U.S. 385 (1920), the defendants were father

and son and owned the company, id. at 390; by virtue of

their ownership interest, the Silverthornes had the un-

doubted right to exclude others from the plant and

grounds and therefore enjoyed a legitimate expectation of

privacy in their business office. Likewise, in the case cited

to illustrate the second example, Jones v. United States,

supra, “Jones had complete dominion and control over the

apartment” and, “[e]xcept with respect to his friend” who

rented the apartment and was away on a five-day trip at

the time, Jones “could exclude others from it.” Rakas, 439

U.S. at 149. Finally, in the case cited to illustrate the third

example, Rios v. United States, 364 U.S. 253, 262 n.6

(1960), the Court observed that “[a]n occupied taxicab is

not to be compared to * * * a vacated hotel room, Abel v.

United States, 362 U.S. 217 [(1960)]” (where the hotel

management has the “exclusive right to its possession,”

362 U.S. at 241), but is presumably to be likened to an oc-

cupied hotel room (which is a “temporarily private place

whose momentary occupants’ expectations of freedom

from intrusion are recognized as reasonable.” Katz, 389

U.S. at 361 (Harlan, J., concurring)). The common deno-

minator among the Court’s examples is a right to exclude

others, whether that right is conferred by state property

law or by shared social understandings.

Since Katz, this Court has continued to recognize that

the right to exclude is a key element in determining

whether an individual has a legitimate expectation of

privacy in a particular object or place. In Rakas v. Illinois,

439 U.S. at 149, the Court noted that unlike the de-

fendents in Jones and Katz, the defendants in Rakas had

no right to exclude others from the areas of the

automobile where the incriminating evidence was seized.

Similarly, in Rawlings v. Kentucky, 448 U.S. 98, 105-106

(1980), the Court pointed to the defendant’s lack of any

right to exclude others from access to an acquaintance’s

purse in explaining why the defendant could not be deem-

ed to have a legitimate expectation of privacy in the purse.

To be sure, the “right to exclude” does not provide a

simple, bright-line rule that can resolve every case. In

some cases, a right to exclude may not be enough to ensure

the protection of the Fourth Amendment. It is well-

settled, for example, that the Fourth Amendment does not

protect against entry into “open fields,” even if the owner

of the fields has a right under local law to exclude

trespassers. See Oliver v. United States, 466 U.S. 170,

177-181, 183-184 (1984). The same may be true for other

invasions of property rights that are de minimis in nature

and therefore not considered “searches” under Fourth

Amendment law even though the owner of the property

may have a technical legal right against trespass. See, e.g.,

New York v. Class, 475 U.S. 106 (1986) (opening of

automobile door to see inspection sticker not a “search”);

Cardwell v. Lewis, 417 U.S. 583, 591-592 (1974) (plurality

opinion) (taking paint scrapings from automobile not a

“search” under the circumstances). As another example, a

friend who is asked to watch a homeowner’s house for a

brief period of time while the owner is away may have a

right to exclude others from the premises, but may not

have a legitimate expectation of privacy under state prop-

erty law or shared social conventions. Nonetheless, we

submit that the “right to exclude” test serves as a useful

guideline for most cases involving searches of real and per-

sonal property, and at least where a right to exclude is ab-

sent, Fourth Amendment protections should not be found

to apply.?

* While we believe that the “right to exclude” test is a useful device

for analyzing physical searches of real and personal property, it is not

as useful in determining whether other kinds of invasions, such as the

interception of conversations, Berger v. New York, 388 U.S. 41

B. Overnight Guests Such As Respondent Have No Right To Ex-

clude Others

1. In most circumstances, an overnight guest such as

respondent will lack a right to exclude others and for that

reason will have no legitimate expectation of privacy in the

host’s home. To begin with, overnight guests —like casual

visitors —have no legitimate expectation of privacy con-

ferred by property law because they neither own nor

possess the host’s house under state property law. Social

conventions similarly do not support an expectation of

privacy for a guest in most areas of the host’s home. When

a guest is invited into a home, the host waives his right to

eject the guest as a trespasser; the host does not delegate to

his guest his right to eject others as trespassers. For exam-

ple, a defendant could not object if the host held a party to

which he invited some neighbors who happened to be

police officers. Nor could the guest object if the host con-

sented to the police officers’ entry. Generally speaking,

guests have no right to exclude others from shared areas of

the house (like the kitchen, dining room, living room, and

bathrooms) or from areas of the home reserved for the

host’s exclusive use (such as the host’s bedroom).* Cf.

(1967), or the taking of urine samples for drug testing, National

Treasury Employees Union v. Von Raab, 109 S. Ct. 1384 (1989), con-

stitute “searches” within the meaning of the Fourth Amendment

4 See, e.g., United States v. Nabors, 761 F.2d 465, 468-470 (8th

Cir.) (defendant who was merely present at time of search had no

legitimate expectation of privacy), cert. denied, 474 U.S. 851 (1985);

United States v. Adamo, 742 F.2d 927, 947-948 (6th Cir. 1984) (guest

at birthday party had no legitimate expectation of privacy to contest

search of apartment), cert. denied, 469 U.S. 1193 (1985); United

States v. Robinson, 698 F.2d 448, 454-455 (D.C. Cir. 1983) (mere

guest had no legitimate expectation of privacy); United States v.

Meyer, 656 F.2d 979, 980-982 (Sth Cir. 1981) (defendants lacked

legitimate expectation of privacy to contest “illegal warrantless search

of the bathroom cabinet”—“a room they do not allege to have

entered”), cert. denied, 465 U.S. 1065 (1984); Chupp v. State, 509

N.E.2d 835, 838 (Ind. 1987) (visitor to house lacked legitimate expec-

Rakas, 439 U.S. at 148-149. At most, overnight guests

have the right to exclude others from the guest

bedroom —an area that the host usually surrenders to his

visitor for the duration of his stay and with respect to

which social convention recognizes that the host can be

said to delegate his right to exclude others.°

tation of privacy to contest search of another visitor’s bag because he

“had no control over the premises”); Lee v. State, 419 N.E.2d 825, 828

(Ind. App. 1981) (defendant lacked legitimate expectation of privacy

as Overnight guest in house trailer); People v. Carter, 128 Mich. App.

541, 547, 341 N.W.2d 128, 132 (1983) (per curiam) (defendant had no

expectation of privacy in bathroom he was using at the time of the

search because he was “merely a transient visitor” who “only occa-

sionally spent the night there”), rev’d on other grounds, 422 Mich.

938, 369 N.W.2d 852 (1985); Hicks v. State, 96 Nev. 82, 83, 605 P.2d

219, 220 (1980) (defendant who was present in apartment lacked

legitimate expectation of privacy to contest search); People v.

Rodriguez, 69 N.Y .2d 159, 164, 513 N.Y.S.2d 75, 78, 505 N.E.2d 586,

589 (1987) (defendant sleeping alone in apartment lacked legitimate

expectation of privacy because he “was a transient who had no indicia

of legitimate or recognizable connection to the apartment where he

was arrested or any relevant thing in that apartment,” which belonged

to his drug supplier); Commonwealth v. Tann, 500 Pa. 593, 459 A.2d

322, 325 (1983) (defendant had no legitimate expectation of privacy

when present only for a social visit for 10-15 minutes). But see United

Srates v. Echegoyen, 799 F.2d 1271, 1277 (9th Cir. 1986) (defendant

had a legitimate expectation of privacy because he was present at time

of search and “was an invited overnight guest”); State v. Adkins, 346

S.E.2d 762, 766 (W.Va. 1986) (defendant had a legitimate expectation

of privacy because he was present at time of search and “was more

then a casual visitor”).

* See, e.g., United States v. Rackley, 742 F.2d 1266, 1270 (11th Cir.

1984) (house guests had legitimate expectation of privacy, if at all,

limited to guest bedroom where they stayed and not in other parts of

premises where evidence found).

Although an overnight guest generally lacks a legitimate

expectation of privacy in most areas of his host’s home,

particular types of guests may well have a legitimate ex-

pectation of privacy in some circumstances. First, where

state property law gives a possessory interest to a guest,

the guest has a legitimate expectation of privac,. A hotel

guest, for example, has a legitimate expectation of privacy

in his hotel room for that reason.® In addition, social con-

ventions can bestow an expectation of privacy. A house

sitter who is given temporary possession of an apartment

or home for more than a brief period of time has a

legitimate expectation of privacy in the premises.’ Jones v.

United States, supra, illustrates that point. “Jones had a

legitimate expectation of privacy in the premises he was

using * * * even though his ‘interest’ in those premises

might not have been a recognized property interest at com-

mon law.” Rakas, 439 U.S. 143. The reason was that dur-

ing his friend’s absence, Jones “had complete dominion

and control over the apartment and could exclude others

from it.” Jd. at 149. For similar reasons, a host’s long-

term, live-in companion may share the host’s right to ex-

clude others.®

6 See, e.g., United States v. Lyons, 706 F.2d 321, 326-329 (D.C.

Cir. 1983) (occupant of hotel room has a legitimate expectation of

privacy because room is “tendered for his sole use during this stay in

the city”).

’ See, e.g., State v. Isom, 196 Mont. 330, 338, 641 P.2d 417, 42!

(1982) (defendant had a legitimate expectation of privacy because he

“was the sole occupant of the residence at the time of the search and

had control and dominion over it to the exclusion of others”).

* See, e.g., People v. Wagner, 104 Mich. App. 169, 175, 304 N.W.2d

$17, 520 (1981) (defendant had legitimate expectation of privacy

because he had moved into his girlfriend’s townhouse, had been there

an indefinite time, and kept his clothes there); State v. Whitehead, 229

Kan. 133, 137, 622 P.2d 665, 669 (1981) (defendant had legitimate ex-

pectation of privacy because he “lived there with Ms. Presley on an

2. Respondent had no right to exclude others from

either the Bergstroms’ residence as a whole or the shared

bedroom on whose floor he had slept the previous night.

To be sure, the Minnesota Supreme Court found that

respondent had a “right to allow or refuse visitors entry”

and that respondent had “permission to stay at 2406

Fillmore for some indefinite period.” Pet. App. A8. But

the factual predicate on which the court based its conclu-

sion that respondent had a right to exclude others is so em-

phemeral that it could be satisfied in virtually every case.

The court based its finding on the testimony of Louanne

Bergstrom. Pet. App. A8. Ms. Bergstrom’s testimony,

however, concerned respondent’s authority to admit or ex-

clude his guests, not the Bergstroms’, and even on that

point, the testimony was equivocal:

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

over to see [respondent], did he have your permission

to admit them or refuse to admit them?

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

never discussed.

Q. Had somebody come over to visit [respondetit],

would you have allowed him to decide if that person

would visit with him?

A. If Il saw no reason not to.

Pet. 7 (quoting R. 192).%

irregular basis”); State v. Allen, 188 Mont. 135, 141, 612 P.2d 199.

202 (1980) (defendant had legitimate expectation of privacy in apart-

ment because he “shared it with his girl friend and except with respect

to her had complete dominion and control over the apartment and

could exclude others from it”).

* The court’s “finding” that Olson had the right to excludeothers

from the Bergstroms’ home is not a factual finding binding on this

Court. Because the state court’s conclusion that Olson had the

The colloquy between respondent’s attorney and

Louaane Bergstrom fails to discharge respondent’s burden

to prove that he had a right to exclude others from the

Bergstroms’ home. See Rakas, 439 U.S. 131 n.1. There ts

no testimony to suggest that respondent had the right to

exclude from the premises other guests who might have

been admitted by the Bergstroms (such as the police);

respondent therefore lacked a legitimate expectation of

privacy in the premises as a whole. Even if respondent’s

legitimate expectation of privacy turned on his right to ad-

mit or exclude Ais own guests — which it does not — the col-

loquy reveals that respondent had a right to exclude only if

his host “saw no reason not to” contradict his decision. A

“right” conditioned on the approval of another, however,

is no right at all; any guest has a “right” to admit or ex-

clude others as long as the exercise of that “right” is consis-

tent with the host’s own desires.

More fundamentally, the question whether respondent

had the right to exclude others from the Bergstroms’ house

should be determined not by any express authorization

given by Louanne Bergstrom, but by respondent’s actual

use of the premises in light of shared social conventions.

In this case, there is no evidence that respondent in fact

had the right to exclude others from the Bergstroms’

home, and that fact, in view of the societal understanding

that overnight guests usually do not have the right to ex-

clude others from the common areas of the house,

establishes that respondent cannot contest the police of-

right to exclude others presupposes application of the correct legal

standard (e.g., whether the right need encompass only Olson's guests

or the Bergstroms’ as well), it is a mixed finding of law and fact to

which no special deference is due. See Turner v. Safley, 482 U.S. 78,

93-94 n.* (1987); Bose Corp. v. Consumers Union of United States,

Inc., 466 U.S. 485, 501 (1984); Inwood Laboratories, Inc. v. Ives

Laboratories, Inc., 456 U.S. 844, 855 n. 15 (1982).

ficers’ entry into the Bergstroms’ home. The contrary rule

would allow legitimate expectations of privacy to be

created by unilateral oral assignment rather than property

interests grounded in state law or shared social customs. '°

Nor did respondent have a right to exclude others, in-

cluding the police, from the bedroom closet in which he

was found. Respondent was not found in a bedroom given

by Louanne Bergstrom for respondent’s exclusive use. To

the contrary, respondent slept for a single night on the

floor of the bedroom and shared those quarters with one

or more of the Bergstroms. In no sense did respondent ac-

quire privacy interests in the bedroom by virtue of the very

brief and casual use he made of it.

Without a right to exclude others, respondent’s expecta-

tion of privacy rested, according to the Minnesota

Supreme Court, on the open-ended duration of his stay.

But that fact says no more than that respondent was

legitimately on the premises at the time the police arrested

him. It therefore bears a fatal resemblance to the test for

Fourth Amendment standing declared in Jones v. United

States, 362 U.S. at 267, and overruled in Rakas v. Illinois,

439 U.S. at 142, because it created “too broad a gauge for

measurement of Fourth Amendment rights.” Because

respondent lacked a right to exclude others from the

Bergstroms’ home and the bedroom closet within, he could

not contest the legality of the police officers’ search of

either place.

homeowner presiding over a meeting of narcotics dealers could kick

off the transactions by announcing that “I delegate to everyone pres-

ent the right to exclude others, particularly the police, from my

house.” Cf. Rakas, 439 U.S. at 167 (White, J., dissenting).

ll. EXIGENT CIRCUMSTANCES EXIST WHENEVER A

SUSPECT IMPLICATED IN A VIOLENT CRIME OR

THOUGHT TO BE ARMED DISCOVERS THAT HE HAS

BEEN CORNERED BY POLICE

It is well recognized that probable cause and exigent cir-

cumstances can support a warrantless arrest inside a

home. See Welsh v. Wisconsin, 466 U.S. 740, 749 & n.11

(1984); Steagald v. United States, 451 U.S. 204, 211

(1981); Payton v. New York, 445 U.S. 573, 583 (1980);

Coolidge v. New Hampshire, 403 U.S. 443, 477-478

(1971). What is less clear is what standard should be used

to determine whether the circumstances are sufficiently ex-

igent to permit a warrantless entry.

1. In holding that the circumstances in this case did not

sufficiently justify the warrantless entry into the

Bergstroms’ home, the Minnesota Supreme Court used a

multi-factor test first proposed in Dorman v. United States,

435 F.2d 385, 392-393 (D.C. Cir. 1970) (en banc). That test

looks to the following factors in determining exigency: the

gravity of the offense, the possibility that the suspect is

armed, the degree of probable cause, the probability that

the suspect is on the premises, the likelihood of escape, the

circumstances of the entry, and the time of the entry.

Although Dorman has been widely followed,'' the ex-

perience of the lower courts in applying the Dorman test

'' See, e.g., United States v. Crespo, 834 F.2d 267, 270 (2d Cir.

1987), cert. denied, 108 S. Ct. 1471 (1988); United States v. Stan-

dridge, 810 F.2d 1034, 1037 (11th Cir.) (per curiam), cert. denied, 481

U.S. 1072 (1987); United States v. Baldacchino, 762 F.2d 170, 176-177

(ist Cir. 1985); United States v. Martinez-Gonzalez, 686 F.2d 93,

100-102 (2d Cir. 1982); United States vy. Kulcsar, 586 F.2d 1283, 1287

(8th Cir, 1978); United States v. Campbell, $81 F.2d 22, 26 (2d Cir.

1978); United States v. Shye, 492 F.2d 886, 891-892 (6th Cir. 1974);

Salvador vy. United States, $05 F.2d 1348, 1351-1352 (8th Cir. 1974);

Vance v. North Carolina, 432 F.2d 984, 990-991 (4th Cir. 1970). See

generally Welsh v. Wisconsin, 466 U.S. at 751. But see Liaguno vy.

Mingey, 763 F.2d 1560, 1564 (7th Cir. 1985) (en banc) (rejecting Dor-

man’s “checklist-type analysis” in tavor of reasonableness inquiry).

reveals that it fails what should be its principal purpose: to

guide police officers seeking to stay within constitutional

bounds. See New York v. Belton, 453 U.S. 454, 458

(1981). The Dorman test simply describes some of the con-

siderations bearing on the decision whether exigent cir-

cumstances are present in a particular case and leaves it at

that. It fails to resolve any case in which the seven factors

point in more than one direction. This case furnishes a

perfect illustration of the problem. In favor of a finding of

exigent circumstances, the Minnesota Supreme Court

found that the police had strong reason to believe that

respondent was on the premises. Against a finding of ex-

igent circumstances, the state court found that respondent

did not have the murder weapon, that there was not strong

probable cause to implicate him in the robbery/murder,'?

and that the likelihood of respondent’s escape was

minimal because the police had the premises surrounded.

The court thought that the gravity of the crime was

unilluminating because respondent was suspected only of

driving the getaway car.

One can, of course, quarrel with the Minnesota

Supreme Court’s application of the Dorman factors in this

case. Although the police had recovered the murder

weapon from the Oldsmobile, the search of that car had

uncovered two holsters, and no other handgun was found.

Pet. App. A33. The police could therefore reasonably

have supposed that respondent was armed. Moreover, as

'? The Minnesota Supreme Court did not review the trial court's

finding of probable cause because it concluded that the warrantless

entry into the Bergstroms’ house violated the Fourth Amendment

without regard to whether the police had probable cause to link

respondent to the crime. Pet. App. A7. That issue would be open on

remand in the event that this Court reverses the judgment of the Min-

nesota Supreme Court.

the driver of a getaway car involved in an armed robbery

and murder, the charges respondent faced were very

serious (as respondent’s ultimate convictions and sentence

prove). They gave respondent every reason to resist cap-

ture or to flee, as he had done once when stopped by the

police in the Oldsmobile and as the anonymous tipster

warned that he planned to do again.

The problem, however, lies not just with the state

court’s application of the Dorman test to the facts of this

case but with the Dorman test itseif. That test simply can-

not resolve cases in which the factors point in more than

one direction— which is not a rare occurrence. See, eé.g.,

United States v. Lindsay, 506 F.2d 166, 171-172 (D.C. Cir.

1974); Commonwealth v. Wagner, 486 Pa. 548, 557-588,

406 A.2d 1026, 1031 (1979). The test thus lacks descriptive

power —i.e., the capacity to explain judicial decisions.

More importantly, the Dorman test lacks prescriptive

power —i.e., the ability to predict in advance of a judicial

decision whether the circumstances are sufficiently exigent

to justify the police in proceeding without a warrant. See

Welsh, 446 U.S. at 761-762 (White, J., dissenting). As

Professor LaFave correctly observes, the Dorman test re-

quires “the making of on-the-spot decisions by a cor.

plicated weighing and balancing of a multitude of im-

precise factors” and is therefore “too sophisticated” to be

applied “correctly with a fair degree of consistency by

well-intentioned police officers.” 2 W. LaFave, Search and

Seizure § 6.1(f), at 599-600 (2d ed. 1987)."?

'S Accord, Donnino & Girese, Exigent Circumstances for a War-

rantless Home Arrest, 45 Alb. L. Rev. 90, 99-106 (1980); Harbaugh &

Faust, “Anock on Any Door”—Home Arrests After Payton and

Steagald, 86 Dick. L. Rev. 191, 225 (1982); Note, 1978 U. Il. L.F.

655, 678.

2. Although we do not propose a universal test for

determining the existence of exigent circumstances, con-

siderable certainty would be provided in an important area

by a rule that circumstances are exigent whenever a suspect

implicated in a violent crime or thought to be armed

discovers that he has been cornered by the police. In that

circumstance, the only alternative to an immediate war-

rantless entry and arrest of the suspect is for some officers

to stake out the premises while others attempt to obtain a

warrant.

If a fugitive suspected of perpetrating a violent crime

discovers that he is the target of a stake-out, the police

face a serious risk of evidence destruction, hostage-taking,

or a shoot-out endangering themselves and innocent

passersby. The appearance of police officers confirms to

the suspect that the police have discovered “both his iden-

tity and his address.” United States v. Crespo, 834 F.2d at

271. Their appearance creates a likelihood that “evidence

might be destroyed if they [do] not enter the apartment

swiftly.” /bid. “More importantly, any delay increase[s]

the risk that innocent members of the public might be in-

jured if [the suspect] attempt[{s] to leave.” United States v.

Standridge, 810 F.2d at 1037; United States v. Salvador,

740 F.2d 752, 758 (9th Cir. 1984), cert. denied, 469 U.S.

1196 (1985). “It [is] safer to arrest [the suspect] immediate-

ly * * * than to wait for a warrant, and to risk a gun battle

erupting in the halls, stairs, lobby or other public area”

should the suspect try to escape. United States v. Stan-

dridge, 810 F.2d at 1037. For those reasons, courts should

not “second-guess th[e] tactical decision [of the police on

the scene] to deny the suspect the advantages that delay to

procure a warrant would have presented.” United States v.

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

445 U.S. 934 (1980).

In this case, the police surrounding the Bergstroms’

house knew that respondent had overheard the detective’s

telephone call to Julie Bergstrom and that respondent was

therefore tipped off that the police were pursuing respond-

ent and knew his whereabouts. The police were also aware

that respondent was implicated in a violent crime and

might well be armed. In addition, upon realizing that the

police had surrounded the house, respondent could have

taken one of the Bergstroms hostage in an attempt to

make good his escape. Alternatively, he could have bar-

ricaded himself in the Bergstroms’ upper unit and engaged

in a shoot-out with police. Of course, if respondent

possessed any evidence implicating him in the gasoline sta-

tion robbery and murder, any delay would have given

respondent an opportunity to destroy it.

The police should not have to assume those risks. “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, 298-299 (1967). Nor must police

stand idly by when they have a “realistic expectation that

any delay would result in destruction of evidence.” United

States v. Santana, 427 U.S. 38, 43 (1976). See Welsh v.

Wisconsin, 466 U.S. at 754; Vale v. Louisiana, 399 U.S.

30, 35 (1970).

The police decisions to dispatch officers to the scene and

to call Julie Bergstrom cannot be criticized as attempts to

create a situation in which exigent circumstances would re-

quire the police to effect a warrantless entry to arrest

respondent. The informant’s tip, which suggested that

respondent intended to flee, justified the dispatch of

police officers to the Bergstroms’ house. Once there, the

police were certainly justified in attempting to lure re-

spondent outside to effect a warrantless arrest Outside the

Bergstroms’ home. The alternative—staking out an un-

familiar building with an unknown number of exits and

thereby immobilizing significant and limited police

resources —is unreasonable. See Payton v. New York, 445

U.S. at 619 (White, J., dissenting) (“[T]he costs of such a

stakeout seem excessive in an era of rising crime and scarce

police resources.”).'4

Nor would it have been sufficient for the police to ob-

tain a warrant for respondent’s arrest, as the Minnesota

Supreme Court seemed to assume. Quite apart from the

question whether a warrant could have been obtained in

one hour on a Sunday afternoon, an arrest warrant would

not have authorized the entry into the Bergstroms’ house

to arrest respondent. See Steagald v. United States, supra.

If the police officers needed a warrant to enter, they

needed a search warrant.'* Before the officers overheard

respondent whispering to Julie Bergstrom, the only

evidence they had that respondent was staying with the

Bergstroms was the statement of the Bergstroms’ down-

'* In any event, it was unlikely that the continued presence of

“[t}hree or four Minneapolis police squads” would long have gone un-

noticed by respondent or curious neighbors. Pet. App. A10-A11. It is

well known that a covert stake-out is difficult to implement and main-

tain. See United States v. Salvador, 740 F.2d at 758; United States v.

Williams, 612 F.2d at 739.

'S It is an Open question whether a defendant in respondent's posi-

tion could get evidence suppressed if the police enter the premises of a

third party to arrest the defendant, when they have only an arrest war-

rant for the defendant and not a search warrant for the premises.

Compare United States v. Underwood, 717 F.2d 482, 483-485 (9th

Cir. 1983) (no suppression), cert. denied, 465 U.S. 1036 (1984), with

id. at 486-492 (Skopil, J., dissenting) (suppression required); 4 W.

Lakave, Search and Seizure § 11.3(b), at 297-298 (2d ed. 1987). What

is NOt subject to question, however, is that an unconsented entry under

those circumstances would violate the Bergstroms’ rights. If the Min-

neapolis police wished to avoid violating anyone’s rights under the

Fourth Amendment, and the circumstances were not exigent, they

would not enter the Bergstroms’ house with only an arrest warrant.

stairs neighbor, which might well have been insufficient to

justify a search warrant for the Bergstroms’ home. The ac-

tion the police took was therefore reasonable, and they did

not forgo any readily available line of investigation that

could have avoided the warrantless entry to effect re-

spondent’s arrest.

CONCLUSION

For the foregoing reasons, the judgment of the Supreme

Court of Minnesota should be reversed.

Respectfully submitted.