Amicus Curiae Brief — Minnesota v. Olson
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No. 88-1916
IN THE en
Supreme Court of the Gnited States
October Term, 1989
STATE OF MINNESOTA,
Petitioner,
vs.
ROBERT DARREN OLSON,
Respondent.
ON WRIT OF CERTIORARI TO THE
MINNESOTA SUPREME COURT
BRIEF OF THE STATES OF
CONNECTICUT, DELAWARE, INDIANA,
KANSAS, KENTUCKY, MICHIGAN,
MISSISSIPPI, MISSOURI, NEW HAMPSHIRE,
NEW JERSEY, NEW MEXICO, NORTH
CAROLINA, SOUTH CAROLINA, SOUTH
DAKOTA, UTAH, VERMONT, VIRGINIA
AND WYOMING, NATIONAL DISTRICT
ATTORNEYS ASSOCIATION, INC.,
INTERNATIONAL ASSOCIATION OF CHIEFS
OF POLICE, INC., NATIONAL SHERIFFS
ASSOCIATION, INC., AND MINNESOTA
COUNTY ATTORNEYS ASSOCIATION AS
AMICI CURIAE IN SUPPORT OF THE
PETITIONER STATE OF MINNESOTA
(Counsel on inside of cover)
EY SR a RR
224-7631 _ Review Publishing Co., 287 E. 6th St., St. Paul, Minn. 55101 _- 224-7631
JOHN J. KELLY
Chief State’s Attorney
State of Connecticut
CHARLES M. OBERLY lll
Attorney General
State of Delaware
LINLEY E. PEARSON
Attorney General
State of Indiana
ROBERT T. STEPHAN
Attorney Genera!
State of Kansas
FREDERIC J. COWAN
Attorney General
State of Kentucky
FRANK J. KELLEY
Attorney General
State of Michigan
MIKE MOORE
Attorney General
State of Mississippi
WILLIAM L. WEBSTER
Attorney General
State of Missouri
JOHN P. ARNOLD
Attorney General
State of New Hampshire
PETER N. PERRETTI, JR.
Attorney General
State of New Jersey
HAL STRATTON
Attorney General
State of New Mexico
LACY H. THORNBURG
Attorney General
State of North Carolina
T. TRAVIS MEDLOCK
Attorney Genera!
State of South Carolina
ROGER A. TELLINGHUISEN
Attorney General
State of South Dakota
R. PAUL Van DAM
Attorney Genera!
State of Utah
JEFFREY L. AMESTOY
Attorney General
State of Vermont
MARY SUE TERRY
Attorney General
State of Virginia
JOSEPH B. MEYER
Attorney General!
State of Wyoming
JAMES B. EARLY
Special Assistant
Attorney General
State of Minnesota
Attorney for the Minnesota
County Attorneys
Association
*Counsel of Record
200 Ford Building
117 University Avenue
St. Paul, Minnesota 55155
Telephone: (612) 296-8429
Attorneys for Amici Curiae
Of Counsel:
GEORGE D. WEBSTER, ESQ.
International] Association of
Chiefs of Police, Inc.
Of Counsel:
JACK E. YELVERTON, ESQ.
Executive Director
National District Attorneys
Association, Inc.
Of Counsel:
GREGORY U. EVANS, ESQ.
Genera! Counsel
— Sheriffs Association,
ne.
TABLE OF CONTENTS
Table of Authorities
Interest of Amici
Summary of Argument
1. Legitimate Expectation of Privacy
Il. Exigent Circumstances
Argument
I. This Court Should Articulate A List of Factors
For Lower Courts To Consider In Determining
Whether A Guest Has A Legitimate Expectation
Of Privacy In Someone Else’s Home
A. The Factors
B. Discussion Of Factors
Il. Defendant In This Case Had No Legitimate Expec-
tation Of Privacy
III. Police Officers Need Clear Guidance About What
Exigent Circumstances Allow Warrantless Entries
Into A Home To Make A Warrantless Arrest
IV. Sufficient Guidance For Officers Does Not Exist
A. Dorman v. United States Does Not Provide
Sufficient Guidance
B. Other Definitions Also Have Drawbacks
C. LaFave’s Proposal
Page
iii
or fo we wo WW
or
“a on
10
1]
13
14
15
18
Page
V. Amici’s Proposed Definition Of Exigent Circum-
stances Will Satisfy Constitutional Requirements,
And Provide Helpful Guidance For The Police 19
A. This Definition Accurately Articulates Exi-
gent Circumstances That Allow A Warrantless
Arrest In A Home 20
B. The Proposed Definition Provides Specific,
Helpful Guidance For Police Officers 21
The Scope Of “Hot Pursuit”’ 22
D. The “Specific And Articulable Facts” Stan-
dard Of Terry v. Ohio Should Be Used 22
E. The Police Should Not Be Required To Stake
Out A Home While They Obtain A Warrant 24
F. Even If Police Activity Contributes To The
Exigency, A Warrantless Entry And Arrest
Should Be Allowed 25
G. One Type Of Exigency Is Sufficient 26
There Were Exigent Circumstances To Arrest
Defendant 26
Conclusion 27
ii
TABLE OF AUTHORITIES
Cases:
Arkansas v. Sanders,
442 U.S. 753 (1979)
Dorman v. United States,
435 F.2d 385 (D.C. Cir. 1970)
James v. Superior Court,
Page
24
14, 15, 18
87 Cal. App. 3d 985, 151 Cal. Rptr. 270 (1979) 23, 25
Jones v. United States,
362 U.S. 257 (1960)
Johnson v. United States,
333 U.S. 10 (1948)
Ker v. California,
374 U.S. 23 (1963)
Michigan v. Tyler,
436 U.S. 499 (1978)
Miranda v. Arizona,
384 U.S. 436 (1966)
Payton v. New York,
445 U.S. 573 (1980)
People v. Ramey,
16 Cal. 3d 263, 545 P.2d 1333,
127 Cal. Rptr. 629 (1976)
Rakas v. Illinois,
439 U.S. 128 (1978)
Rawlings v. Kentucky,
448 U.S. 98 (1980)
Schmerber v. California,
384 U.S. 757 (1966)
State v. Canby,
252 S.E.2d 164 (W. Va. 1979)
iii
7, 8,11
13, 21
21
13, 14, 22
12
4,5, 11, 12, 17, 24
15, 17, 18, 23
3, 5, 7,13
14, 17
Page
State v. Chavez, 98 N.M. 61, 644 P.2d 1050
(Ct. App. 1982), rev. denied, 98 N.M. 336,
648 P.2d 794 (1982) 22
State v. McNeal,
251 S.E.2d 484 (W. Va. 1978) 24
Steagald v. United States,
451 U.S. 204 (1981) 4, 5, 6, 8, 11, 18, 24
Terry v. Ohio,
392 U.S. 1 (1968) 22, 23
United States v. George,
883 F.2d 1407 (9th Cir. 1989) 23
United States v. Haydel,
649 F.2d 1152 (5th Cir., 1981) 9
United States v. Karo,
468 U.S. 705 (1984) 11
United States v. Ross,
456 U.S. 798 (1982) 12
United States v. Salvucci,
448 U.S. 83 (1980) 9
United States v. Santana,
427 U.S. 38 (1976) 13, 14, 21, 22, 25
United States v. Sokolow,
— U.S. ——, 109 S. Ct. 1581 (1989) 23
United States v. Watson,
423 U.S. 411 17
Warden v. Hayden,
387 U.S. 294 (1967) 13, 21, 22
Welsh v. Wisconsin,
466 U.S. 740 (1984) 11, 13, 14, 15, 19, 21, 22
iv
Constitutional Provisions: Page
U.S. Const. Amend. IV 5
Court Rules:
Sup. Ct. R. 36.2 and 36.4 2
Law Reviews:
Donnino and Girese,
Exigent Circumstances for a Warrantless Home
Arrest, 45 Alb. L. Rev. 90 (1980) 12, 13, 14, 15, 16, 24
Harbaugh and Faust,
Knock on Any Door—Home Arrests After Payton
and Steagald, 86 Dick. L. Rev. 191
(1982) 13, 14, 15, 16, 17
Note, 23 Ariz. L. Rev. 1171 (1981) 13, 14, 15
Note, 6 Hamline L. Rev. 191 (1983) 12-13, 13, 15
Note, 13 N.M.L. Rev. 511 (1983) 15, 17, 26
Note, 58 U. Det. J. Urb. L. 545 (1981) 15
Note, 62 U. Det. L. Rev. 319 (1985) 13, 14
Treatise:
W. LaFave, Vol. 2, Search and Seizure,
section 6.1(f) (1987) 12, 15, 17, 18, 19, 24
IN THE
Supreme Court of the Gnited States
October Term, 1989
No. 88-1916
STATE OF MINNESOTA,
Petitioner,
vs.
ROBERT DARREN OLSON,
Respondent.
ON WRIT OF CERTIORARI TO THE
MINNESOTA SUPREME COURT
BRIEF OF THE STATES OF
CONNECTICUT, DELAWARE, INDIANA,
KANSAS, KENTUCKY, MICHIGAN,
MISSISSIPPI, MISSOURI, NEW HAMPSHIRE,
NEW JERSEY, NEW MEXICO, NORTH
CAROLINA, SOUTH CAROLINA, SOUTH
DAKOTA, UTAH, VERMONT, VIRGINIA
AND WYOMING, NATIONAL DISTRICT
ATTORNEYS ASSOCIATION, INC.,
INTERNATIONAL ASSOCIATION OF CHIEFS
OF POLICE, INC., NATIONAL SHERIFFS
ASSOCIATION, INC.. AND MINNESOTA
COUNTY ATTORNEYS ASSOCIATION AS
AMICI CURIAE IN SUPPORT OF THE
PETITIONER STATE OF MINNESOTA
ll
2
INTEREST OF AMICI
This brief is submitted by amici pursuant to Sup. Ct. R. 36.2
and 36.4 in support of the State of Minnesota's petition for a
writ of certiorari.'
The interests of all the amici states are similar. On the
first issue, if this Court articulates an explicit set of factors
clarifying when a guest in another's home has a legitimate
expectation of privacy, it will eliminate the need for prosecu-
tors to revisit continually the same ground in the lower courts.
On the second issue, the articulation by this Court of a clear
definition of exigent circumstances will give the police much
needed guidance about when they can enter a home without a
warrant to make an arrest.
The Nationa! District Attorneys Association, Inc. (NDAA)
is a nonprofit corporation and the sole national organization
representing state and local prosecuting attorneys in America.
Since its founding in 1950, NDAA’s programs of education,
training, publications, and amicus curiae activity have carried
out its guiding purpose of reforming the criminal justice sys-
tem for the benefit of all of our citizens.
The International Association of Chiefs of Police, Inc.
(IACP) is the largest organization of police executives and
line officers in the world, consisting of more than 14,000 mem-
bers in 72 nations. Through its programs of training, publica-
tions, legislative reform and amicus curiae advocacy, it seeks
to make the delivery of vital police services more effective,
while at the same time protecting the rights of all our citizens.
1 Pursuant to Rule 26.2. written consent of the parties to the filing
of the brief by the amici associat ons is being filed at the same
time as this brief. The amici =tates are sponsored by their respec-
tive attorneys general and therefore. pursuant to Rule 36.1. con
sent for them is Not necessars
The National Sheriffs Association, Inc. (NSA) is the largest
organization of sheriffs and jail administrators in America,
consisting of over 40,000 members. It conducts programs of
training, publications, and related educational efforts to raise
the standard of professionalism among the nation’s sheriffs
and jail administrators. While it is interested in the effective
administration of justice in America, it strives to achieve this
while respecting all rights guaranteed under the Constitution.
The Minnesota County Attorneys Association (MCAA) is
the statewide organization representing all felony prosecutors
in Minnesota and has some purposes similar to those of the
NDAA, with a particular focus on the criminal justice system
in Minnesota.
SUMMARY OF ARGUMENT
l. Legitimate Expectation of Privacy.
A legitimate expectation of privacy cannot be determined
by a “bright line” and must be developed on a case-by-case
basis. Rakas v. lilinois, 439 U.S. 128 (1978). Lower courts
have developed their own, often inconsistent factors. This
Court’s guidance is needed to achieve greater consistency.
Amici suggest ten factors that may apply in cases where a
guest challenges a warrantless entry into someone else’s
house. Among the more significant factors are: (1) ability to
exclude others from the property: (2) possession of a key;
and (3) whether the accused has been allowed to stay in the
house alone.
ll. Exigent Circumstances.
In order to arrest a suspect, the police may make a war-
rantless entry into his home or into a third party’s home if
4
there are exigent circumstances. Payton v. New York, 445
U.S. 573 (1980); Steagald v. United States, 451 U.S. 204
(1981). Exigent circumstances were not present in either
Payton or Steagald and this Court left the initial application
of the exigent circumstances exception to the lower courts.
Police officers in the field need a definite, easily under-
stood definition of exigent circumstances so that they know
when they can make a warrantless entry. Amici’s suggested
definition is: (1) hot pursuit, or, (2) specific and articulable
facts justifying a belief that (a) the suspect is dangerous, or
(b) he may escape, or (c) evidence may be lost. The definition
does not explicitly require considering whether the delay in
getting a warrant poses a risk that danger, flight, or evidence
loss may occur. However, this is unnecessary since, by the
very nature of these risks, they will exist and pose a risk as
soon as the officer becomes aware of their possible presence.
The risk will exist at the time the officer decides whether to
make a warrantless entry or obtain a warrant and thus neces-
sarily exists during the delay that would be caused by getting
a warrant.
If there are exigent circumstances, the police should not
be required to stake out a house and wait for a warrant.
ARGUMENT
1. THIS COURT SHOULD ARTICULATE A LIST OF FAC-
TORS FOR LOWER COURTS TO CONSIDER IN DETER-
MINING WHETHER A GUEST HAS A LEGITIMATE
EXPECTATION OF PRIVACY IN SOMEONE ELSE’S
HOME.
The Fourth Amendment to the United States Constitution
provides that “the right of the people to be secure in their
persons, houses, papers and effects, against unreasonable
searches and seizures, shall not be violated... .”" The Fourth
Amendment secures the rights of people in their own houses,
not in the houses of others. Therefore, a guest cannot chal-
lenge a warrantless entry into another’s home unless he has
a legitimate expectation of privacy there.
Rakas v. Illinois, 489 U.S. 128 (1978) rejected the “bright
line” rule of “legitimately on the premises” and held that the
question of wher a guest has a legitimate expectation of
privacy must be developed by a case-by-case analysis. See
discussion at 439 U.S. 144-48.* In the ensuing decade, the
lower courts used different factors, accorded the factors dif-
ferent significance, and even attempted to articulate new
“bright line” rules. See amici brief in support of petition for
certiorari at 5-10. Amici respectfully submit that this Court
-For example, officers do not need a bright line. Absent exigent
circumstances. consent or a warrant, thev should not enter a home
to arrest a guest anyway, even if the guest lacks a legitimate
expectation of privacy. Like vise. if the officers are doubtful
about whether the house is the suspect's “home.” so that an arrest
warfant under Payton (445 U.S. at 6024383) instead of a search
warrant under Steaga’d (Rehnquist. J.. dissenting. 451 U.S. at 231)
wou d suffice. they can. in the absence of any exigency, simply
obtain a search warrant
should articulate a list of factors that should be considered by
the lower courts in determining whether a guest has a legiti-
mate expectation of privacy.
A. The Factors.
Amici suggest the following factors are appropriate ones
to consider :
(1) the ability or right to exclude other persons from the
premises ;
(2) possession of a key to the premises;
(3) the type of guest that the accused is;
(4) partially paying some of the owner's expenses:
(5) whether the accused was allowed to stay at the premises
alone;
(6) the accused's historical (or prior) use of the premises,
including the length and frequency of any visits and whether
his presence was uninterrupted or sporadic ;
(7) the extent of the accused's freedom to use the premises,
including whether there were any restrictions on rooms he
had access to, or any restrictions on his use of the house's
equipment or appliances ;
(8) what personal effects of the accused were at the prem-
ises, how long they had been there, whether they were just
stored there or whether the accused had access to use them on
an ongoing basis, and whether they represented most or al!
of his worldly possessions or just a few miscellaneous items:
(9) the precautions taken by the accused to develop and
maintain his privacy in the premises;
(10) the accused's objective expectation of privacy and the
reasonableness of that expectation.
B. Discussion Of Factors.
1. Ability to Exclude Others. As this Court said in Rakas:
One of the main rights attaching to property is the right
to exclude others, see W. Blackstone, Commentaries Book
2, ch. 1, and one who owns or lawfully possesses or con-
trols property will in all likelihood have a legitimate
expectation of privacy by virtue of this right to exclude.
439 U.S. at 144, n. 12. If one can exclude all others, one’s
expected level of privacy is significant.
The ability to exclude others, however, should not be con-
fused with the ability of the guest to entertain his own guests.
The ability to admit others does not add to privacy. If any-
thing, it diminishes privacy.
2. Possession of Key. Rakas observed that the accused in
Jones v. United States, 362 U.S. 257 (1960) clearly had a legit-
imate expectation of privacy in his friend’s apartment. Rakas
noted that, among other things, Jones had a key to the apart-
ment that he let himself in with. See 439 U.S. at 149. Owners*
have keys: mere guests do not. Possession of a key allows one
to come and go as one pleases. It lets the guest exclude others
when the owner is not present. However, if a guest does not
possess a key, his comings ard goings are often dictated by
the schedule of the house’s owner.
3. Type of Guest. Guests range from a salesman to an adult
child who has been temporarily iiving in his parents’ house
for a few months. Persons not actually living there, such as
tradesmen, dinner guests or party guests, would have little
likelihood of any privacy expectation. And someone not living
there who did have an expectation, such as the accused in
® “Owner” in this discussion ‘at 7 to 11) includes leasors, renters
and similar persons
Jones, would need to have many of the other factors support-
ing this expectation. ,
4. Helping with Expenses. A guest is unlikely to have any
ownership interest in the property. However, if he helps the
owner pay items such as the utility bills, rent, or mortgage
payments, this could help support an expectation of privacy.
5. Staying Alone in the House. The accused in Jones, who
had a legitimate expectation of privacy, was allowed exten-
sive use of the apartment while the owner was away. When the
owner allows the guest to remain in the house alone, this not
only affords the guest the privacy normally associated with
solitude, but also is an indication that the guest is more like
“one of the family” than a casual guest.
6. Prior Use of Premises. When a guest has actually been
living in the house, the length and continuity of his presence
may indicate whether he is analogous to a regular tenant in-
stead of a mere guest. See (in another context) Steagald r.
United States, (Rehnquist, J., dissenting) 451 U.S. 204, 230-31
(1981):
If a suspect has been living in a particular dwelling for
any significant period, say a few days, it can certainly be
considered his “home” for Fousth Amendment purposes.
... [and] the police could enter the premises with only
an arrest warrant.
(In Steagald, however, the minimum of four days that the
DEA agents believed Lyons had been staying in Steagald’s
residence—see 451 U.S. at 206—was not sufficient to make it
Lyon's “home.”)
7. Restrictions. If the guest is not allowed access to cer-
tain areas of the house, or is not permitted to do things such
as help himself to the contents of the refrigerator, his expec-
tation of privacy is not very high.
8. Personal Effects. A guest who has moved in lock, stock
and barrel differs from one who remains overnight with nary
a toothbrush. While the number of one’s worldly possessions
has nothing to do with a legitimate expectation of privacy,
their location indicates whether the premises is equivalent to
one’s own home.
9. Precautions to Maintain Privacy. Precautions taken by
a guest to maintain his privacy may depend upon how much
freedom the owner allows him. Attempts to maintain privacy
may be prevented by the owner, and thereby lower a guest's
expectation of privacy.
10. Objective Expectation of Privacy. Sometimes offhand
comments by the suspect (such as complaining about the fact
that the owner will not give him a key, doesn’t trust him in
the house alone, and limits his time in the bathroom) could all
be objective manifestations of a lack of any subjective expecta-
tion of privacy.
Some courts have suggested that the ownership, use or con-
trol of seized property should be a factor in deciding whether
the person has a legitimate expectation of privacy. E.g.,
United States v. Haydel, 649 F.2d 1152 (5th Cir., 1981). How-
ever, it should not be a factor in determining a privacy expec-
tation in another’s home.‘ For example, defendants A and B
could both be guests under identical circumstances and use
and keep identical personal property on the premises. That
being the case, the seizure of A’s, but not B’s, property should
not make any difference in determining whether either had a
legitimate expectation of privacy in the premises.
4Mere ownership. possession or use of seized prvuperty. does not
necessarily mean that the person has a legitimate expectation of
privacy. Rawlings vr. Kentucky. 18 U.S. OS (1980); United States
vr. Salvucci, 448 U.S. 83, 92 C1980).
10
An accused who has no privacy expectation in another's
home may have a privacy expectation in personal property
(such as a briefcase) that he has with him, just the same as
if he were carrying the briefcase in a public place or in open
fields. But the seizure of the briefcase should not give the
accused a legitimate expectation of privacy in another’s home,
any more than it would give him an expectation of privacy in
an open field or in a public place.
Il. DEFENDANT IN THIS CASE HAD NO LEGITIMATE
EXPECTATION OF PRIVACY.
The record in this case affords an opportunity to apply the
above factors in a concrete situation.
1. Defendant had no ability to exclude anyone, since the
matter was never discussed. 2. He had no key. 3. Defendant
was a very temporary guest who was sleeping on the floor.
(The real reason for his presence was of course that he was
hiding from the police.) 4. He was not helping with the rent
payments. 5 and 7. It is unclear whether he was allowed the
run of the house or not, but it is clear that he was never
allowed to stay there alone. 6. He had only stayed there one
night and had slept on the floor. 8. He had only a change of
clothes with him and not even a toothbrush. 9. It does not
appear that he took any precautions to protect his privacy.
10. There is no indication that defendant believed he had any
privacy interest in the Bergstrom’s duplex. In short, he had
no legitimate expectation of privacy.
Deciding this case is clear cut and does not require any bal-
ancing or ranking of the factors. However, the more those
factors have in common with ownership, the more importance
they should have. These would include: (1) the ability to ex-
clude, (2) the possession of a key, (3) being allowed to be in
11
the premises alone, (4) having unrestricted use of the prem-
ises, (5) living in the premises for a significant, uninterrupted
length of time, and (6) maintaining (and using) at the resi-
dence a significant portion of one’s worldly goods would be
such factors. The first three of them would, consistent with
Jones, be among the more important.
Finally, if a guest has a legitimate expectation of privacy,
he will in some respects be comparable to a resident member
of the family and may be able to consent to a search of the
premises. See United States v. Karo, 468 U.S. 705, 724 (1984)
(O’Connor, J., concurring). It could also result in an arrest
warrant for the accused, instead of a search warrant for the
premises, sufficing to justify a nonconsent, nonexigent entry
to arrest the guest. See Steagald v. United States, (Rehnquist,
J., dissenting) 451 U.S. at 230-31. Thus, extending Fourth
Amendment protection to a guest may concommitantly dimin-
ish the degree of privacy accorded the owner.
Ill. POLICE OFFICERS NEED CLEAR GUIDANCE ABOUT
WHAT EXIGENT CIRCUMSTANCES ALLOW WAR-
RANTLESS ENTRIES INTO A HOME TO MAKE A
WARRANTLESS ARREST.
Payton v. New York, 445 U.S. 573 (1980) held that, absent
exigent circumstances, the Fourth Amendment prohibits war-
rantless arrests of a suspect in his own home. Payton left “‘to
the lower courts the initial application of the exigent-circum-
stances exception.” Welsh v. Wisconsin, 466 U.S. 740, 749
(1984).
Mr. Justice White’s dissent in Payton predicted that as a
result of that case:
The policeman on his beat must now make subtle dis-
criminations that perplex even judges in their chambers.
12
Further, police officers will often face the difficult
task of deciding whether the circumstances are sufficient-
ly exigent to justify their entry to arrest without a war-
rant. This is a decision that must be made quickly in the
most trying of circumstances. If the officers mistakenly
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 mistakenly 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.
445 U.S. at 618-19. An explicit definition, easily understood by
police officers, is needed to cure this situation.
Officers should have guidance about exigent circumstances
that has the same degree of certainty that custodial interroga-
tion and warrantless searches of vehicles do. See Miranda v.
Arizona, 384 U.S. 436 (1966) and United States v. Ross, 456
U.S. 798 (1982). As Professor LaFave has observed:
The ultimate purpose of all Fourth Amendment standards
is not to keep probative evidence out of criminal trials,
but rather to keep police practices within constitutional
limits, and this purpose is not served by a rule which
cannot be applied correctly with a fair degree of consis-
tency by well-intentioned police officers.
W. LaFave, Vol. 2, Search and Seizure, 599 (1987); quoted
with approval in Donnino and Girese, Exigent Circumstances
for a Warrantless Home Arrest, 45 Alb. L. Rev. 90, 112 (1980).
Donnino and Girese, and at least one other commentator,
have opined that exigent circumstances cannot be determined
by a bright line. 45 Alb. L. Rev. at 115; Note, 6 Hamline L.
13
Rev. 191, 207 (1983). However, both irrelevantly rely on
Mr. Justice Powell’s concurring opinion in Rakas v. Illinois,
439 U.S. 128, 155-56 (1978), which questioned the efficacy of
a bright line for a legitimate expectation of privacy, but did
not question the efficacy of a bright line for exigent circum-
stances.
IV. SUFFICIENT GUIDANCE FOR OFFICERS DOES NOT
EXIST.
It appears to be generally acknowledged that exigent cir-
cumstances are present in the four following types of situa-
tions, although not all of them have been explicitly adopted
by this Court:
(1) Hot pursuit: United States v. Santana, 427 U.S. 38
(1976); Welsh v. Wisconsin, 466 U.S. at 750; Steagald v.
United States, 451 U.S. 204, 221 (1981); Michigan v. Tyler,
436 U.S. 499, 509 (1978); see also, Donnino and Girese, 45
Alb. L. Rev. at 94-95; Note, 23 Ariz. L. Rev. 1171, 1175 (1981);
Note, 62 U. Det. L. Rev. 319, 322 (1985); Note, 6 Hamline L.
Rev. at 200 (1983).
(2) Suspect poses danger to officers or citizens: Warden
v. Hayden, 387 U.S. 294, 298-99 (1967); see also, Harbaugh
and Faust, Knock on Any Door—Home Arrests after Payton
and Steagald, 86 Dick. L. Rev. 191, 222, 231 (1982): Donnino
and Girese, 45 Alb. L. Rev. at 96; 23 Ariz. L. Rev. at 1180;
62 U. Det. L. Rev. at 323.
(3) Suspect is likely to escape or avoid arrest: Johnson v.
United States, 333 U.S. 10, 15 (1948); see also, Donnino and
Girese, 45 Alb. L. Rev. at 96; Harbaugh and Faust, 86 Dick.
L. Rev. at 222, 232; 23 Ariz. L. Rev. at 1182; 62 U. Det. L.
Rev. at 322.
14
(4) There is a likelihood that evidence will be lost or de-
stroyed: Welsh v. Wisconsin, 466 U.S. at 750; Michigan v.
Tyler, 436 U.S. at 509; Schmerber v. California, 384 U.S. 757,
770 (1966); Santana (Stevens, J., concurring), 427 U.S. at
44; Santana (Marshall, J., dissenting), 427 U.S. at 45-48; see
also, Donnino and Girese, 45 Alb. L. Rev. at 96; Harbaugh and
Faust, 86 Dick. L. Rev. at 223 and 232; 23 Ariz. L. Rev. at
1177; 62 U. Det. L. Rev. at 322-23.
The challenge is to articulate these exigencies in a form
that can be easily used by officers on the street.
A. Dorman v. United States Does Not Provide Sufficient
Guidance.
Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970), in
upholding a warrantless entry to arrest on exigent circum-
stances, considered a list of seven factors. These seven factors
were:
(1) a grave offense is involved, particularly one that is a
crime of violence;
(2) the suspect is reasonably believed to be armed;
(3) there is more than the minimum amount of probable
cause ;
(4) strong reason to believe the suspect is in the premises;
(5) a likelihood the suspect will escape if not swiftly ap-
prehended ;
(6) the entry was made peaceably : and
(7) t!.e time of day at which the entry is made.
435 F.2d at 392-93.
Dorman has been widely cited and followed in the lower
courts although some have expressed reservations. E.g., Don-
nino and Girese, 45 Alb. L. Rev. at 100, n. 49, and at 106.
15
Welsh v. Wisconsin said that “[w]ithout approving all of the
factors,” Dorman was “a leading federal case defining exigent
circumstances.” 466 U.S. at 751-52.
On the other hand, LaFave says:
It is thus appropriate to ask whether the Dorman rule is
too sophisticated to be so applied [by police officers on
the scene], requiring as it does the making of on-the-spot
decisions by a complicated weighing and balancing of a
multitude of imprecise factors.
LaFave, 2 Search and Seizure at 599-600. For example, how
can an officer decide when one-half of the factors favor the
state and one-half favor the accused. See LaFave, 2 Search
and Seizure at 600. Many other commentators have cited
LaFave and agree with him. Donnino and Girese, 45 Alb. L.
Rev. at 104; Harbaugh and Faust, 86 Dick. L. Rev. at 224-25;
23 Ariz. L. Rev. at 1174; 6 Hamline L. Rev. at 203; Note, 13
N.M.L. Rev. 511, 521 (1983); and 58-U. Det. J. Urb. L. 545,
555 (1981).
B. Other Definitions Also Have Drawbacks.
Although Dorman is the best known, other methods, includ-
ing the following definitions, have also been suggested for
determining whether exigent circumstances are present:
In this context, “exigent circumstances” means an
emergency situation requiring swift action to prevent
imminent danger to life or serious damage to property,
or to forestall the imminent escape of a suspect or destruc-
tion of evidence.
People v. Ramey, 16 Cal. 3d 263, 276, 545 P.2d 1333, 1341, 127
Cai. Rptr. 629, 637 (1976).
16
[E]xigent circumstances . . . exist when a reasonably
prudent man in the circumstances would be warranted in
the belief that delay incident to securing the warrant
would pose a significant risk of danger to life or property,
of the escape of the suspect, or of the destruction of
evidence.
Donnino and Girese, 45 Alb. L. Rev. at 114.
[Exigent circumstances exist when] the officer (a)
has probable cause to believe that a delay to procure an
appropriate warrant will gravely endanger the officer
or another person, or result in the destruction or removal
of evidence or the escape of the suspected felon, and (b)
enters or attempts to enter the home where the person is
believed to be in a reasonable manner within the time it
would have taken him to procure an appropriate warrant
under the then existing circumstances.
Harbaugh and Faust, 86 Dick. L. Rev. at 226. Each definition
limits exigent circumstances to danger, flight or loss of evi-
dence. However, other elements in the definitions make them
unsuitable as guidance for police officers.
The Donnino and Girese and the Harbaugh and Faust def-
initions emphasize the delay incident to securing a warrant.
This has the effect of subordinating and very likely obscuring
the significance of the suspect’s dangerousness, likelihood of
escape or destruction of evidence.
Focusing on the delay incident to securing a warrant is un-
necessary. Yet the definitions implicitly suggest to officers
that the delay must somehow be responsible for creating the
risk.
The articulation of this element in the definition may also
cause officers to believe they must predict with precision both
17
the amount of time it will take to find a judge to sign a war-
rant and also just exactly what the suspect will do while the
officer is away obtaining a warrant. In fact, Harbaugh and
Faust would require a belief that the suspect definitely will
escape or destroy evidence.
Moreover, the type of individual involved is usually unpre-
dictable. This unpredictability, in fact, may often contribute
to the exigency of the situation.
Harbaugh and Faust also recommend that, even if there are
exigent circumstances, warrantless entries should be per-
mitted only from the time officers obtain probable cause until
the time that it would normally take to obtain a warrant. 86
Dick. L. Rev. at 226-27. In effect, this proposal requires an
officer to interrupt his investigation immediately after he
obtains probable cause and apply for a warrant. This proposal
should not be adupted.
First, officers are not required to obtain an arrest warrant
and arrest a suspect as soon as they obtain probable cause. See,
.g., United States v. Watson, 423 U.S. 411, 431, 449 (Powell,
J., concurring and Marshall, J., dissenting) ; LaFave, 2 Search
and Seizure at 170.
Second, it would require an officer to interrupt his inves-
tigation and possibly miss opportunities to locate additional
witnesses or evidence. This is not favored. See Schmerber v.
California: “Particularly ... where time had to be taken . . .
to investigate. . ., there was no time to seek out a magistrate
and secure a warrant.” 384 U.S. at 770-71. See also, Payton
v. New York, (White, J., dissenting) at 445 U.S. 619; and
LaFave, 2 Search and Seizure, at 608.
Ramey says that its definition, which is endorsed at 13
N_M_L. Rev. 524, is not a litmus test for the presence of exi-
gent circumstances. 16 Cal. 3d at 276, 545 P.2d at 1341, 127
18
Cal. Rptr. at 637. As such, it fails to provide sufficient guid-
ance for officers.
Unlike Donnino and Girese and Harbaugh and Faust,
Ramey’'s definition does not explicitly mention the risk posed
by the delay of obtaining the warrant, but it does require a
showing that the danger, flight or destruction of evidence is
imminent. Danger, flight and destruction of evidence are, by
their very nature, imminent. Using “imminent” in the defini-
tion implies that these events must somehow be even more
imminent than they usually are and may confuse officers and
the lower courts.
The same could be said about Ramey’'s inclusion of “swift
action” and “emergency situation” in addition to “imminent.”
Certainly any action to prevent an imminent danger will nec-
essarily be swift. Therefore, including “swift” in the defini-
tion implies that it must be even swifter. “Emergency situa-
tion” possibly implies that there must be even more of an
emergency than, for example, a danger to life. At best, it is
redundant, circular, and confusing, since exigent circum-
stances are, by definition, an emergency.
C. LaFave’s Proposal.
LaFave suggests that “a solution is most likely to be found
by distinguishing the truly ‘planned’ arrest from the arrest
which is made in the course of an ongoing investigation in
the field.” LaFave, 2 Search and Seizure at 600. The approach
makes sense. LaFave’s “field arrest” would often occur when
the risk of flight or destruction of evidence is at its greatest.
A good example is Dorman, in which the officers “engaged
steadily and systematically in the identification and pursuit
of the criminal suspects.” Dorman, 435 F.2d at 394.
If LaFave’s approach is adopted, officers would need a
“bright line” between a planned arrest and an arrest in the
field, such as the following: If the police decide to arrest a
suspect, and promptly arrest him, it would be a “field arrest.”
However, it would be “planned” if they postponed the arrest
because it was not urgent and could be done later. LaFave
would also allow a warrantless arrest in the “planned arrest”
situation if an exigency subsequently arose. See LaFave, 2
Search and Seizure at 601.
Unfortunately, it appears possible that some “field arrests”
may be “routine arrests.” If LaFave’s approach would not
satisfy the Fourth Amendment under all circumstances, its
value to officers would diminish.
Vv. AMICTS PROPOSED DEFINITION OF EXIGENT CIR-
CUMSTANCES WILL SATISFY CONSTITUTIONAL RE-
QUIREMENTS, AND PROVIDE HELPFUL GUIDANCE
FOR THE POLICE.
Amici suggest that the following definition of exigent cir-
cumstances should be used and applied by this Court:
Except as limited by Welsh v. Wisconsin, police officers
may make a warrantless arrest of a suspect in his or
another's home when any of the following are present:
1. There is hot pursuit.
or
2. An officer is aware of specific and articulable facts
justifying a belief that:
a. A suspect is a danger to life, may injure someone,
or may cause serious damage to property.
or
b. A suspect may flee or avoid arrest.
or
c. Evidence may be lost, removed or destroyed.
A. This Definition Accurately Articulates Exigent Circum-
stances That Allow A Warrantiless Arrest In A Home.
1. The definition is based upon the well-established doc-
trines of exigent circumstances discussed swpra at 13-14. How-
ever, unlike many of the authorities and commentators cited
there, the proposed definition’s three grounds of danger,
escape and destruction of evidence do not explicitly articulate
any requirement that the delay incident to obtaining a war-
rant would pose a significant risk. That requirement was not
included in order to provide better guidance for police offi-
cers. And, as demonstrated by the following discussion, its
inclusion was not necessary to satisfy the requirements of the
Fourth Amendment.
If the police believe a suspect is dangerous, they believe he
is dangerous then and there. They do not believe that he is
presently gentle and passive and poses no threat until some
time in the future. The suspect is like boiling water that may
burn someone at any minute, not like water that has just been
put on the stove and has yet to come to a boil.
Likewise, if a suspect wishes to escape or destroy evidence,
those actions must, by their very nature, be accomplished
rapidly if they are to be effective. Therefore, defendants nor-
mally flee or destroy evidence as soon as they perceive the
necessity of it and can conceive a plan to accomplish it.
For example, if an officer believes that a suspect is a danger
to life, that danger exists at the very moment the officer enters
the home without a warrant. If the danger exists then, «
fortiori the danger would exist during the delay necessary to
obtain a warrant. If the officer had decided to seek a warrant,
it would have been with the knowledge that the danger could
erupt before he was able to type the first word on the warrant
application.
2. The proposed definition is consistent with exigent cir-
cumstances decisions by this Court. Johnson v. United States,
333 U.S. 10 (1948) ruled that the search of the defendant's
home in a residential hotel violated the Fourth Amendment
because “no suspect was fleeing or likely to take flight” and
“no evidence or contraband was threatened with removal! or
destruction.” 333 U.S. at 15. Nor was there hot pursuit or any
danger. The proposed definition would reach the same result:
no exigent circumstances.
Warden v. Hayden held that there were exigent circum-
stances. Applying the proposed definition to Warden would
have the same result because exigent circumstances of danger,
escape, and loss of evidence were all present. (Loss of identifi-
cation evidence was a ground because only a speedy search
“could have insured that Hayden was the only man present” in
the house to which the male armed robber had fl.d just min-
utes before. 387 U.S. at 299.)
Ker ve. California, 374 U.S. 23 (1963), United States rv. San-
tana and Welsh v. Wisconsin would also have reached the
same results if the proposed definition would have been used.
B. The Proposed Definition Provides Specific, Helpful
Cuidance For Police Officers.
The four different. independent grounds should be relative-
ly easy to remember. All are logical and grounded in common
sense: for example, if a suspect is on the verge of fleeing, it
makes sense to arrest him immediately.
Since the definition does not require an officer to speculate
either about how long it might have taken to get a warrant
or about what the suspect would do in the meantime, it allows
them to base their decision upon known facta rather than
upon attempting to predict the future. See else, discussion
supra at 16-17
The Welsh caveat in the proposed definition will require
case-by-case determinations for extremely minor offenses.
However, that adds nothing to the analysis that Welsh cur-
rently requires. *
C. The Scope Of “Hot Pursuit.”
A hot pursuit “means some sort of a chase, but it need not
be an extended hue and cry ‘in and about [the] public
streets.” ” l nited States vr. Santane, 427 U.S. at 43.
Therefore, warrantless entries “in the nature of a hot pur-
suit” but in which there is no chase are not covered by hot
pursuit in the proposed definition. (See State vr. Chavez, 98
N.M. 61, 64, 644 P.2d 1050, 1053 (Ct. App. 1982), rer. denied,
98 N.M. 336, 648 P.2d 794 (1982)). However, if it is a non-
routine arrest, it is probably covered by another ground of
the proposed definition, such as flight or destruction of evi-
dence. A good example is Warden vr. Hayden, briefly discussed
supre at 21, which has been mentioned in passing as a hot
pursuit case. See Michigan ec. Tyler, 436 U.S. at 509.
D. The “Specific And Articulable Pacts” Standard of Terry
t. Ohio Should Be Used.
This Court has apparently never ruled on whether officers
need «pecific and articulable facts. under Terry vr. Ohio, 392
U.S. 1 (1968), or the higher standard of probable cause, that
exigent circumstances are present. Welsh rv. Wisconsin,
» Welsh will necessitate a casein «ase evaluation of the seriousness
of particular crimes a difficult task for which officers and courts
are peeorly exquipye ws Tscwrnee Wiete. |. dissent ng:
PATS at Hl
likwever ' , * ob e« reber : “ ' a
23
(White, J., dissenting) mentioned “probable cause to believe
that the delay involved in procuring an arrest warrant will
gravely endanger the officer ... .”” 466 U.S. at 759. (Emphasis
added.) However, the specific and articulable facts standard of
Terry v. Ohio is sufficient. First, the police would still need
probable cause that the suspect had committed the crime in
order to arrest him. Second, the use of the Terry rv. Ohio
language is limited and applies to three specific types of
emergencies (danger, flight, and destruction of evidence) and
to no others.
The specific and articulable facts should, of course, include
knowledge gained by the officer in previous cases. See United
States v. Sokolow, —— U.S. -—, 109 S. Ct. 1581 (1989).
The officer's belief should be evaluated only on the basis
of information that was available to him. E.g., Ramey, 16 Cal.
3d at 276, 545 P.2d at 1341, 127 Cal. Rptr. at 637.°
Some courts have held that there cannot be exigent cir-
cumstances unless “the officers reasonably believe that [the
accused] either knew or was in substantial danger of learning
of his imminent capture.” Lnited States v. George, 883 F.2d
1407, 1414 (9th Cir. 1989). This should not be required. First,
officers are unlikely to be privy to what a suspect knows.
Second, a suspect who has recently committed a crime may
flee or destroy evidence regardless of whether he thinks the
police suspect him. In fact, this is precisely the sort of possi-
bility that is present in those situations that are “in the nature
of (but not quite) hot pursuit,” which are discussed supra at
22.
* James v. Superior Court. 87 Cal. App. 3d 85. 151 Cal. Rptr. 270
(1979). on the other hand. held that there were not ex gent cir-
cumstances because the defendant was askep Hiowever. the off!
cers did not know this. ‘Moreover. ome can wake up. even in the
middle of the night. and f.ee or destroy evidence
24
E. The Police Should Not Be Required To Stake Out A
Home While They Obtain A Warrant.
Some courts have held that, instead of entering a house
without a warrant to make an arrest, the officer should guard
or “stake out” the house until a warrant can be obtained. E.g.,
State v. McNeal, 251 S.E.2d 484 (W. Va. 1978), (discussed by
Donnino and Girese at 45 Alb. L. Rev. 108-09).
However, a stake out does not prevent the defendant from
destroying evidence inside the house. Nor does it necessarily
make him any less of a danger. As LaFave points out, a stake
out can increase the risk to a hostage, undercover agent or
informant who is inside. It also gives the suspect_more time to
prepare a violent resistance. See 2 Search and Seizure at 605-
06.
A stake out leaves the rest of the public that much more
unprotected. As observed in Steagald v. United States (Rehn-
quist, J., dissenting) 451 U.S. at 225-26,
[W]hile “[t]he police could reduce the likelihood of escape
by staking out all possible exits ... the cost of such a
stake-out seems excessive in an era of rising crime and
scarce police resources.” Payton v. New York, supra at
619, 100 S. Ct. at 1397 (White, J., dissenting).
The Fourth Amendment does not require the police to secure
a car and wait for a search warrant. See Arkansas v. Sanders,
442 U.S. 753, 765, n. 14 (1979). When there are exigent cir-
cumstances, it would make even less sense to require police to
attempt to surround and seal off a home while they send one
of their number to obtain a warrant. See Donnino and Girese,
45 Alb. L. Rev. at 112, n. 111.
Payton applies only to routine arrests. If a stake out is
necessary, it is not a routine arrest.
25
F. Even If Police Activity Contributes To The Exigency,
A Warrantless Entry And Arrest Should Be Allowed.
Officers should not be required to obtain a warrant as a
hedge against the possibility that an exigency may arise in the
future. See discussion supra at 16-18. Some cases, however,
have held that, when police activity is responsible for the exi-
gency, a warrantless entry should not be allowed. See United
States v. Santana, (Marshall, J., dissenting) 427 U.S. at
45-49 ; State v. Canby, 252 S.E.2d 164 (W. Va. 1979) ; James v.
Superior Court, 87 Cal. App. 3d 985, 151 Cal. Rptr. 270 (1979).
For examn'e, it is not uncommon for police to interview
friends and relatives of suspects. If one of them decides to
warn the suspect, the suspect should not be able, for example,
to destroy evidence unimpeded while the police are powerless
to enter. See Canby. Nor should police be discouraged from
checking to see if a suspect is in his motel room. See James. If
it turns out he is not there, valuable time will be lost that
could have been used to find out where he actually was.
Some cases would apply this rule only if an officer delib-
erately fomented an exigency to save the time and bother of
a warrant. See Santana, (Marshall, J., dissenting) 427 U.S.
at 48-49. While this limited approach is more justifiable than
the foregoing unrestricted one, there is little likelihood of any
such police practice being widespread. No prudent officer
would try it because, warrantless entry or not, he could well
end up with no evidence and a dangerous criminal at large.
In the final analysis, it must be remembered that it is the
suspect, the crimes he committed, his other activities, and his
propensities, not the police, that create the exigency.
26
G. One Type Of Exigency Is Sufficient.
One commentator has suggested that more than one type of
exigency should be present before the police can make a war-
rantless arrest. 13 N.M.L. Rev. at 515. This suggestion should
be rejected. For example, a drug dealer who is about to flush
his contraband into the sewer is not a danger. And, after he
flushed it, he would not need to flee.
H. There Were Exigent Circumstances To Arrest Defen-
dant.
Applying the proposed definition to the facts of this case is
a straightforward matter—as well it should be if the defini-
tion is to help guide the police. First, the officers had specific
and articulable facts to support a belief that defendant was
dangerous: he was the getaway driver in a robbery murder:
the robbery was part of a string of robberies; and it was likely
thet defendant was armed. (Even though the murder weapon
had been seized, criminals frequently have more than one
gun.)
In addition, the officers had specific and articulable facts
to support a belief that defendant might flee or avoid arrest:
defendant fled when the police stopped his car: defendant
precipitously abandoned his own home and was hiding out at
the Bergstroms; and the police had a tip that he was planning
to leave town.
“yr
2%
CONCLUSION
This Court should articulate the factors to consider in de-
termining whether a guest has a legitimate expectation of
privacy in someone else’s home. It should also articulate a def-
inition of exigent circumstances that can be easily understood
and applied by the officers in the field. Applying respectively
the factors and definition suggested by amici requires that the
decision of the Minnesota Supreme Court be reversed.
Respectfully submitted,
JOHN J. KELLY
Chief State’s Attorney
State of Connecticut
CHARLES M. OBERLY III
Attorney Genera!
State of Delaware
LINLEY E. PEARSON
Attorney General
State of Indiana
ROBERT T. STEPHAN
Attorney General
State of Kansas
FREDERIC J. COWAN
Attorney General
State of Kentucky
FRANK J. KELLEY
Attorney General
State of Michigan
MIKE MOORE
Attorney General
State of Mississippi
WILLIAM L. WEBSTER
Attorney General
State of Missouri
JOHN P. ARNOLD
Attorney General
State of New Hampshire
PETER N. PERRETTI, JR.
Attorney General
State of New Jersey
(Counsel continued on next page)
HAL STRATTON
Attorney General!
State of New Mexico
LACY H. THORNBURG
Attorney Genera!
State of North Carolina
T. TRAVIS MEDLOCK
Attorney Genera!
State of South Carolina
ROGER A. TELLINGHUISEN
Attorney General
State of South Dakota
R. PAUL Van DAM
Attorney General
State of Utah
JEFFREY L. AMESTOY
Attorney General
State of Vermont
MARY SUE TERRY
Attorney General
State of Virginia
JOSEPH B. MEYER
Attorney General
State of Wyoming
JAMES B. EARLY
Special Assistant
Attorney Genera)
State of Minnesota
Attorney for the Minnesota
County Attorneys
Association
*Counsel of Record
200 Ford Building
117 University Avenue
St. Paul, Minnesota 55155
Telephone: (612) 296-8429
Attorneys for Amici Curiae
Of Counsel -
GEORGE D. WEBSTER, ESQ.
International Association of
Chiefs of Police, Inc.
Of Counsel:
JACK E. YELVERTON, ESQ.
Executive Director,
National District Attorneys
Association, Inc.
Of Counsel:
GREGORY U. EVANS, ESQ.
General Counsel
National Sheriffs Association,
Inc.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.