Amicus Curiae Brief — Brigham City v. Stuart

(7)

No. 05-502 Pad @

IN THE

Supreme Court of the Anited States

BRIGHAM CITY,

Petitioner,

Vv.

CHARLES W. STUART, SHAYNE R. TAYLOR,

AND SANDRA TAYLOR,

Respondents.

On Writ of Certiorari to the

Utah Supreme Court

BRIEF OF THE

NATIONAL LEAGUE OF CITIES, NATIONAL

CONFERENCE OF STATE LEGISLATURES,

INTERNATIONAL MUNICIPAL LAWYERS

ASSOCIATION, INTERNATIONAL

CITY/COUNTY MANAGEMENT ASSOCIATION,

U.S. CONFERENCE OF MAYORS, AND

NATIONAL ASSOCIATION OF COUNTIES

AS AMICI CURIAE SUPPORTING PETIFIONER

LAWRENCE ROSENTHAL RICHARD RUDA *

CHAPMAN UNIVERSITY Chief Counsel

SCHOOL OF LAW STATE AND LOCAL LEGA

Orange, Calitornia 92866 CENTER

(714) 628-2650 444 North Capitol Street, N.W.

Suite 309

Washington, D.C. 20001

(202) 434-4850

“ Counsel of Record for the

Anuct Curia

Wi SON EPES PRINTING Co , INC (202) 789-0096 - WasHInGION.D C 20001

QUESTION PRESENTED

Whether the Fourth Amendment prohibits police from

entering a residence without a warrant to break up a party that

they have observed through an open window and door

involves assaultive behavior and unlawful underage drink-

ing that the adults within have been unable or unwilling

to control.

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QUESTION PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES... ecececeseseseeeeeeeeeees

I,

THE FOURTH AMENDMENT PERMITS

WARRANTLESS ENTRY OF A _ RESI-

DENCE WHEN THE POLICE REASONA-

BLY BELIEVE THAT IMMEDIATE ENTRY

TP EEMTEES scsnsesenenissinecesisnnicsidiimeentncenien

A. The Fourth Amendment Permits Warrant-

less Entry Of A Residence When It Is

Objectively Reasonable To Act Without

B. A Police Officer’s Assessment Of The

Existence Of Exigent Circumstances Is

Reviewed Under The Fourth Amendment

For Reasonablemess ..................ccccccsssseseseeess

THE DECISION OF BRIGHAM CITY

POLICE OFFICERS TO ACT IMMEDI-

ATELY TO TAKE CONTROL OF THE

SCENE OF ONGOING CRIMES WAS

ey Ei acter sec csdesnensciintsinmenebiesseeveneyevens

A. The Warrantless Entry Was Reasonable .....

B. The Police Lawfully Treated The Crimes

They Observed As Sufficiently Serious To

Justify A Warrantless Entry...............ccceeee

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PPP PRP R REE E EERE EERE EEE PEER EE EERE EEE

AO MN NN

12

14

14

iV

TABLE OF CONTENTS—Continued

C. The Officers Were Not Required To

Explore Other Means Of Restoring Order

Before They Entered The Residence...........

CIITLLALIIRITN cevervenvesescenensevenssimecioensensiseatiisuindsohsmeliae

Page

Vv

TABLE OF AUTHORITIES

Cases Page

Arizona v. Evans, 514 U.S. 1 (1995) oo. ceeeeeeee 9

Atwater v. City of Lago Vista, 532 U.S. 318

TTT iittala daialeaneaiatemenninanbotancnensenenmeenennnenes passim

Board of Educ. of Indep. Sch. Dist. No. 92 v.

Barta, $36 U.S. B22 (BIZ) .cccccccececscccccescccccesseees 25-26

Brinegar v. United States, 338 U.S. 160 (1949)..... 12-13

California v. Acevedo, 500 U.S. 565 (1991) ......... 8

California v. Ciraolo, 476 U.S. 207 (1986)........... 15

City of Chicago v. Morales, 527 U.S. 41 (1999)... 18

Devenpeck v. Alford, 543 U.S. 146 (2004)............ 13

Ginsherg v: New York, 390 U.S. 629 (1968)......... 20

Groh v. Ramirez, 540 U.S. 551 (2004)... eee 9,17

Horton v. California, 496 U.S. 128 (1990) ........... 15

Illinois v. Gates, 462 U.S. 213 (1983)... eee 9,12, 13

Illinois v. Lafayette, 462 U.S. 640 (1983) ............. 26

Illinois v. McArthur, 531 U.S. 326 (2001)............. 11, 24

Illinois v. Rodriguez, 497 U.S. 177 (1990)............ 1]

Johnson v. United States, 333 U.S. 10 (1948)....... 10, 18

Malley v. Briggs, 475 U.S. 335 (1986)............000. 9

Maryland v. Macon, 472 U.S. 463 (1985)............. 15

Maryland vy. Pringle, 540 U.S. 366 (2003)............ 13

Mincey v. Arizona, 437 U.S. 385 (1978) ............0. 16

Minnesota v. Carter, 525 U.S. 83 (1998).......... 15, 18-19

Minnesota v. Olson, 495 U.S. 91 (1990) ............... 12

Michigan v. Tyler, 436 U.S. 499 (1978) 0.00.0... 12

Ohio v. Robinette, 519 U.S. 33 (1996) .0.......... cee 8

Oliver v. United States, 466 U.S. 170 (1984)........ 1S

Ornelas vy. United States, 517 U.S. 690 (1996) ..... 13, 15

Osborne v. Ohio, 495 U.S. 103 (1990)... 20

Payton v. New York, 445 U.S. 573 (1980)......... 10, 11, 18

Pennsylvania v. Mimms, 434 U.S. 106 (1977) ...... 8

Preston vy. United States, 376 U.S. 364 (1964)...... 13

Richards v. Wisconsin, 520 U.S. 385 (1997).......... 23, 24

vi

TABLE OF AUTHORITIES—Continued

Page

‘Schmerber v. California, 384 U.S. 757 (1966)...... 13, 16

South Dakota v. Dole, 483 U.S. 203 (1987).......... 21

Spinelli v. United States, 393 U.S. 410 (1969)...... 9

State v. Ashe, 745 P.2d 1255 (Utah 1987)............. 17

United States v. Banks, 540 U.S. 31 (2003) .......... 23

United States v. Cuaron, 700 F.2d 582 (10th Cir.

a ccniccsesciidaicunniaciliapteiibiatasinsietibiinmabilaailiatiaiatiiaads 17

United States v. Hackett, 638 F.2d 1179 (9th Cir.

STTTTTTTOcicieihcistcselecncitiincinenicatanteetstaessibuitadeeabicaulidesdetileniiels 17

United States v. Jacobsen, 466 U.S. 109 (1984) ... 19

United States v. Knights, 534 U.S. 112 (2001)...... 8

United States v. Leon, 468 U.S. 897 (1984) .......... 8,9

United States v. Martinez-Fuerte, 428 U.S. 543

SIT versiatdecihcepensiisitidecippitecciiteaimciiiitaadiaiamniiniaanatiniiaiaii 25-26

United States v. Morgan, 744 F.2d 1215 (6th Cir.

PUTT ccinissiinslaieciesiisineapeiniaiiiinitinndnetiiiaianbaiciaitdiaiiitasin 17

United States v. Rabinowitz, 339 U.S. 56 (1950)... 10

United States v. Tarazon, 989 F.2d 1045 (9th Cir.

United States v. Thomas, 893 F.2d 482 (2d Cir.),

vacated on other grounds, 916 F.2d 766 (2d

Tels ati iicdicchicisidinpiniitiliaisieliditlihieiaainctiaiietialaatd 17

United States v. United States District Court, 407

Re ne rn 10

United States v. Ventresca, 380 U.S. 102 (1965)... 9

United States v. Watson, 423 U.S. 411 (1976)...... 18

Vernonia School District 47J v. Acton, 515 U.S.

Be ccntniicditlindaitinindatdeniciebiiiiaitioniaiatieioasis 8

Warden v. Hayden, 387 U.S. 294 (1967)...........0... II

Welsh v. Wisconsin, 466 U.S. 740 (1984) ..19, 20, 21, 22

Whren v. United States, 517 U.S. 806 (1996)........ 13

Wilson v. Arkansas, 514 U.S. 927 (1995).000000.. 23

Vil

TABLE OF AUTHORITIES—Continued

Constitutions, Statutes and Rules Page

Fed. R. Crim. P. 41 (SMA) ...ccccccccccccscccccccccssceseee 17

—) RS RESET eee aoe ear 7

Utah Code Ann. § 32A-1-105(30)...........cceeeeeeeeeees 3

Utah Code Ann. § 32A-12-209(1) ..........cccccceeeeeeee 3

Utah Code Ann. § 32A-12-216(1 )(a) .................... 20

Utah Code Ann. § 32A-12-216(2)................ccceeeees 20

Utah Code Ann. § 76-3-204(2)..........ccccccecceeereeeeees 19

Utah Code Ann. § 76-3-204(3).........cccccccceseseseeeeees 20

Utah Code Ann. § 76-9-102(1)(b)(ili) ................... 19-20

Utah Code Ann. § 76-9-102(3)..............ccccceceeeeeeees 20

Utah Code Ann. § 76-10-2301 ................ccccccceeeeees 19

Utah Code Ann. § 77-23-204(2) (Bender 2000)... 17

Other Authorities ~

Akhil Reed Amar, Fourth Amendment First

Principles, 107 Harv. L. Rev. 757 (1994)......... 8

Committee on Developing a Strategy to Reduce

and Prevent Underage Drinking, National

Research Council and Institute of Medicine,

Reducing Underage Drinking: A Collective

Responsibility (Richard J. Bonnie & Mary

Ellen O'Connell, eds.) (2004)............cceeccceeeeeees 21

Thomas Y. Davies, Recovering the Original

Fourth Amendment, 98 Mich. L. Rev. 547

Ralph Hingson & Donald Kenkel, National

Research Council and Institute of Medicine,

Social, Health, and Economic Consequences

of Underage Drinking, in Committee on De-

veloping a Strategy to Reduce and Prevent

Underage Drinking, National Research Coun-

cil and Institute of Medicine. Reducing

Underage Drinking: A Collective Responsi-

bility (Richard J. Bonnie & Mary Ellen

O'Connell, eds.) 351 (2004)... eeccceeceeteeeeees 21

vill

TABLE OF AUTHORITIES—Continued

Page

Arnold H. Loewy, The Fourth Amendment as a

Device for Protecting the Innocent, 8\ Mich.

iss eR Ue GUE ncteepeineasesisitnccnsendndinndetneniiniatinans 10-11

William J. Stuntz, The Substantive Origins of

Criminal Procedure, 105 Yale L. J. 393

PE icseisiieiccennscaieeinaciichivdciseiatonamianeetebataiidiaiiinn 8

Telford Taylor, Two Studies in Constitutional

Interpretation: Search, Seizure, and Surveil-

lance and Fair Trial and Free Press (1969) ..... 8-9

INTEREST OF THE AMICI CURIAE

Amici are organizations whose members include state,

county, and municipal governments and officials throughout

the United Staes.' State and local governments exercise

primary responsibility for responding to breaches of the peace

and the public expects state and local law enforcement

agencies to respond quickly and effectively to events such

as occurred in this case. Amici accordingly have a strong

interest in preserving the ability of the police to take prompt

and effective action in situations involving ongoing violence

and underage drinking.

This case presents a classic example of the challenges

facing law enforcement officers confronting a breach of the

peace. Responding to a complaint about loud noise at a

residence at 3:00 a.m., police officers encountered a raucous

party in progress involving, among other things, the unlawful

consumption of alcohol by minors. Through an open window

and screen door, the officers saw an intoxicated and violent

juvenile who resisted restraint by four adults and punched one

of the adults in the face. The officers put a halt to the revels

by entering the residence, restoring order, and arresting the

adults for contributing to the delinquency of a minor. The

Utah Supreme Court ruled, however, that the officers violated

the Fourth Amendment because they lacked a warrant to enter

the residence. Affirmance of the judgment below would

leave the police helpless to promptly and effectively put a halt

to a breach of the peace involving ongoing criminal conduct.

In amici’s view, the Fourth Amendment does not prevent

the police from taking reasonable measures to stop ongoing

' The parties have consented to the filing of this amicus brief and their

letters of consent have been filed with the Clerk of the Court. This brief

was not authored in whole or in part by counsel for a party, and no person

or entity, other than amici or their members, has made a monetary con-

tribution to the preparation or submission of this brief.

2

criminal conduct occurring in the officers’ presence, even if

they must cross the threshold of a residence to do so. Be-

cause of the importance of this issue to amici and their mem-

bers, amici submit this brief to assist the Court in its reso-

lution of this case.

STATEMENT OF THE CASE

At approximately 3:00 a.m. on July 23, 2000, four Brigham

City police officers were directed by a police dispatcher to

proceed to a residence at 1074 Orchard Street in response to a

complaint about loud noise. J.A. 24-25, 27, 44. Officers Jetf

Johnson and Mike DeRyke arrived first, and heard yelling

and commotion emanating from the residence, including

people “yelling stop, stop” and “get off me.” /d. at 28; see

also id, at 25-28. Shortly thereafter, Sergeant Ken Broadhead

and Officer Trent Gunn arrived, and the officers then heard

additional commotion coming from the house that sounded

like an altercation was occurring inside. /d. at 28-29, 64-65.

The four officers walked up to the front of the house to

investigate, and although they could see a beer bottle on the

ledge of the front window, they could not see inside the house

because the front rooms were dark. /d. at 30-32, 47. Officer

Gunn remained in front to secure that egress while the other

officers walked along a driveway toward the rear, continuing

to hear what sounded like a fight going on inside the house.

Id. at 32-35.

The trial court found that in light of what they had heard

and because it was “obvious” that knocking on the front door

would have accomplished nothing, “[i]t was appropriate that

th[e officers] proceed down the driveway along the house to

further investigate.” Pet. App. 47. After walking down the

driveway, the officers looked through a slat fence around the

residence’s back yard, and saw two juveniles drinking beer in

the back yard. J.A. 34-37, 66-67. Under Utah law, it is

unlawful for any person under age 21 to possess or consume

3

alcoholic beverages. See Utah Code Ann. §§ 32A-1-105 (30)

& 32A-12-209(1) (2005). The trial court found that “[a]t that

point, because of the juveniles, there was probable cause for

the officers to enter into the backyard.” Pet. App. 47.

While Sgt. Broadhead detained the juveniles in the back

yard, Officers Johnson and DeRyke walked toward the house.

J.A. 36-38, 50. Through a back window, Officer Johnson

saw four adult males trying to restrain a juvenile, who in turn

was struggling to break free, as the participants to the alter-

cation exchanged threats and obscenities and the adults

ordered the juvenile to calm down, /d. at 38-39, 58, 72. As

Officer Johnson approached the back door, he saw the

juvenile free one of his hands and land a punch, bloodying the

mouth of one of the adults. /d. at 40, 60-61.’ The trial court

specifically found that the officers saw this altercation, in-

cluding the punch. Pet. App. 47.

Officer Johnson stepped inside the back door and “yelled

police,” but could not be heard over the tumult. J.A. 40, 62.

As Officer Johnson continued to yell for order, the occupants

of the house became aware of the officers’ presence and the

fight gradually came to a halt. /d. at 41,62. Officers Johnson

and DeRyke then stepped between the combatants and

handcuffed the juvenile. /d. at 41, 73.

At that point, the occupants in the house began yelling at

the officers, demanding that they leave. /d. at 42, 73, 79.

The verbal altercation inside the house escalated to the point

that Sgt. Broadhead felt it necessary to leave the juveniles

who were in his custody in order to assist Officers Johnson

and De yke inside the house. /d. at 42, Ultimately, the offi-

cers placed the adults under arrest. Pet. App. 35. The adults,

* Although the screen door was shut, the back door of the house was

open and for this reason Officer Johnson was able to see through the door.

J.A. 38-40.

4

now respondents, were charged with contributing to the

delinquency of a minor, disorderly conduct, and intoxication.

Id. at 3.

The trial court granted respondents’ motion to suppress all

evidence obtained as a result of the officers’ entry of the

residence on the ground that it was obtained by an unrea-

sonable search and seizure in violation of the Fourth Amend-

ment. The trial court found

no exigent circumstances sufficient to justify the offi-

cer’s entry into the residence. What he should have

done, as required under the 4th amendment, was knock

on the door. The evidence was that there was a loud,

tumultuous thing going on, and the evidence is that the

occupants probably would not have heard him, but under

the 4th amendment he has an obligation to at least

attempt before entering.

Id. at 47.

On Brigham City’s appeal, the Utah Court of Appeals held

that there was no exigency that justified a warrantless entry of

the residence. See id. at 40-41. Judge Bench dissented,

reasoning that “[i]t is nonsensical to require officers, charged

with keeping the peace, to witness this degree of violence and

take no action until they see it escalate further.” /d. at 44.

The Supreme Court of Utah affirmed. The court first

rejected the need to render emergency aid as a justification

for the warrantless entry, concluding that “[t}he magnitude of

the harm fell short of the serious bodily injury threshold

necessary to access the emergency aid doctrine.” /d. at 14.

The court next found no exigent circumstance justifying the

entry, agreeing with the trial court that the officers violated

the Constitution because they “made no attempt to knock

before entering” even though, as the trial court found, “a

5

knock ‘probably would not have been heard.”” /d. at 20.°

Justice Durrant dissented, concluding that the officers’

responses to the exigent circumstances were reasonable in

light of the finding that they would not have been heard had

they attempted to announce their presence from outside the

residence. /d. at 31-32. Justice Durrant reasoned that “the

Fourth Amendment does not prescribe paralysis when law

enforcement officers are eyewitnesses to an ongoing assault

and immediate intervention is necessary to prevent physical

harm.” /d. at 25-26.

SUMMARY OF ARGUMENT

While the text of the Fourth Amendment places specific

restrictions on the issuance of warrants, when it addresses

warrantless police action the Amendment prescribes only the

overarching requirement of reasonableness. The text and

history of the Fourth Amendment make plain that its Warrant

Clause was intended to restrict the circumstances under which

a warrant could issue because of the limitations on judicial

review of the execution of a warrant, rather than to create a

rigid presumption against warrantless search and seizure.

To be sure, it is frequently reasonable for the police to seek

a warrant before they enter a residence, where important pri-

vacy interests are at stake, because a warrant ensures inde-

pendent judicial review of the justification for an entry before

it occurs. Nevertheless, there are circumstances when it is

reasonable for the police—especially when, as here, they

observe an assault and other criminal activity occurring

within a residence—to act immediately, without seeking a

‘The precise finding of the trial court regarding the futility of a police

knock was slightly different than the language quoted by the Utah Su

preme Court. See Pet. App. 47 (“The evidence is that there was a loud,

tumultuous thing going on, and the evidence is that the occupants proba-

bly would not have heard him... .”).

6

warrant. In such cases, a warrantless entry of a residence is

subject to judicial review under the Fourth Amendment for

reasonableness.

In this case, the warrantless entry of the residence was

objectively reasonable and therefore did not violate the

Fourth Amendment. It was plain to the officers arriving at

the scene that the proceedings at the residence were out of

the control of the adults within. Although the adults were

attempting to restrain the juvenile who had punched one of

them just seconds before the officers entered the residence,

the police reasonably decided to put a stop to the revels

without the delay inherent in seeking a warrant. The warrant

requirement is imposed in order to minimize the risk of an

unjustified intrusion on the sanctity of the home, but here, in

light of what the officers had seen, the risk of such an

unjustified intrusion was nonexistent. Accordingly, the

Fourth Amendment did not require the officers to desist from

taking control of the scene until they could obtain a warrant.

Nor were the officers constitutionally obligated to attempt

to persuade the occupants of the residence to restore order

from outside the threshold. ‘That option might have been

some sort of least restrictive means of attempting to enforce

the law. The Fourth Amendment does not, however, impose

a “least restrictive means” test that permits the judiciary to

second-guess police conduct with benefit of hindsight. In this

case, the police had a compelling interest in acting imme-

diately to put a halt to the ongoing criminal conduct that

they observed. The police conduct at issue here satisfied

the Fourth Amendment's fundamental requirement of rea-

sonableness.

ARGUMENT

While it places specific restrictions on the issuance of

warrants, the Fourth Amendment imposes only one require-

ment on police acting without a warrant—reasonableness.

7

There is no rigid rule requiring a warrant before the threshold

of a residence is crossed; it is reasonable to dispense with the

requirement of a warrant when the police need to take imme-

diate action. In particular, when the police have an objec-

tively reasonable belief that they must enter a residence

without the delays associated with obtaining a warrant in

order to put a stop to an ongoing breach of the peace and

other criminal conduct, they may do so consistent with the

Fourth Amendment. When, as here, the circumstances make

clear that a warrantless entry into a residence is objectively

reasonable, there is no requirement that peace officers desist

from enforcing the law and restoring order until they obtain a

warrant or pursue some alternative course of action that is

arguably less intrusive on privacy interests. The judgment of

the Supreme Court of Utah should therefore be reversed.

I. THE FOURTH AMENDMENT PERMITS

WARRANTLESS ENTRY OF A RESIDENCE

WHEN THE POLICE REASONABLY BELIEVE

THAT IMMEDIATE ENTRY IS NECESSARY.

A. The Fourth Amendment Permits Warrantless

Entry Of A Residence When It Is Objectively

Reasonable To Act Without Delay.

The Fourth Amendment's text contains specific rules

govening warrants, but the only requirement for police

search or seizure decisions made on the scene is that they be

reasonable. The Amendment provides:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

U.S. Const. amend. IV. Accordingly, while warrants must

satisfy specific rules involving probable cause, oath or atfir-

8

mation, and particularity, when it comes to warrantless police

activity, the Fourth Amendment prohibits only “unreasonable

searches and seizures.” Thus, as this Court has explained in

the context of warrantless search and seizure, “[t]he touch-

stone of the Fourth Amendment is reasonableness.” United

States v. Knights, 534 U.S. 112, 118 (2001). Accord, e.g.,

Ohio v. Robinette, 519 U.S. 33, 39 (1996); Pennsylvania vy.

Mimms, 434 U.S. 106, 108-09 (1977).

The Fourth Amendment’s more stringent standards govern-

ing the issuance and use of warrants were deliberate. The

Framers were especially concerned about warrants because

they insulated a resulting search and seizure from judicial

review:

[T]he warrant was a means of insulating officials from

personal liability assessed by colonial juries. An officer

who searched or seized without a warrant did so at his

own risk; he would be liable for trespass, including

exemplary damages, unless the jury found that his action

was “reasonable.” If, however, the officer acted pursu-

ant to a proper warrant, he would be absolutely immune.

By restricting the issuance of warrants, the Framers

endeavored to preserve the jury’s role in regulating

searches and seizures.

California v. Acevedo, 500 U.S. 565, 581-82 (1991) (Scalia,

J., concurring in the judgment) (citations omitted).

* See also Vernoma School District 47J v. Acton, 515 U.S. 646, 669-7 |

(1995) (O’Connor, J., dissenting); United States v. Leon, 468 U.S. 897,

970-72 (1984) (Stevens, J., dissenting). Despite some differences among

them on details, the leading scholars of the Fourth Amendment share the

view that the Warrant Clause was primarily a response to concerns about

the unique potential for abuse of power granted by a warrant. See, ee,

Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev.

757, 764-81 (1994): Thomas Y. Davies, Recovering the Original Fourth

Amendment, 98 Mich. L. Rev. 547, 619-69 (2000); William J. Stuntz, The

Substantive Origins of Crominal Procedure, \OS Yale LJ. 393, 396-411

(1995). Telford Taylor, Two Studies in Constitutional Interpretation

9

These concerns about the warrant as a means of insulating

search and seizure from judicial review remain relevant

today. While the police are no longer afforded absolute

immunity from liability when executing a warrant, see Malley

v. Briggs, 475 U.S. 335, 340-41 (1986), the scope of judicial

review of warrants is significantly circumscribed. When a

warrant issues, it is settled that the “magistrate’s ‘determina-

tion of probable cause should be paid great deference by

reviewing courts.’” //linois v. Gates, 462 U.S. 213, 236

(1983) (quoting Spinelli v. United States, 393 U.S. 410, 419

(1969)). Accordingly, “in a doubtful or marginal case a

search under a warrant may be sustainable where without one

it would fall.” United States v. Ventresca, 380 U.S. 102, 106

(1965). Moreover, the rule barring the use of evidence

obtained in violation of the Fourth Amendment is inapplica-

ble to evidence obtained in reasonable reliance on a warrant.

See, ¢.g., Arizona v. Evans, 514 U.S. 1, 10-15 (1995); Leon,

468 U.S. at 922-25. In light of the enormous authority

granted by a warrant, this Court properly insists on compli-

ance with the specific requirements of the Warrant Clause

before it will treat a document as deserving of the special

status of a properly authorized warrant. See, e.g., Groh v.

Ramirez, 540 U.S. 551, 557-58 (2004).

The Warrant Clause, however, is by its terms inapplicable

to warrantless search and seizure. Warrantless police conduct

is subject to unfettered judicial review; under the Fourth

Amendment’s first clause, warrantless police action is evalu-

ated for reasonableness. Because warrantless search and

seizure is subject to full and independent judicial review,

there is no textual, historical, or policy justification for sub-

jecting it to any standard of review more searching than

reasonableness.

Search, Seizure, and Surveillance and Fair Trial and Free Press \9-46

(1969).

10

To be sure, the absence of a warrant informs an assessment

of whether a search is constitutionally reasonable. Payton vy.

New York, 445 U.S. 573 (1980), which held that a warrantless

arrest of an individual within his home ordinarily violates the

Fourth Amendment, stated that “searches and seizures inside

a home without a warrant are presumptively unreasonable.”

Id. at 586. The Court reasoned that “the ‘physical entry of the

home is the chief evil against which the wording of the

Fourth Amendment is directed.’. . . [T]he warrant procedure

minimizes the danger of needless intrusions of that sort.” /d.

at 585-86 (citations and footnote omitted) (quoting United

States v. United States District Court, 407 U.S. 297, 313

(1972) (footnote omitted)).

Elaborating, the Court quoted Justice Jackson's famous

explanation of the warrant requirement:

The point of the Fourth Amendment, which often is

not grasped by zealous officers, is not that it denies law

enforcement the support of the usual inferences which

reasonable men draw from evidence. Its protection

consists in requiring that those inferences be drawn by a

neutral and detached magistrate instead of being judged

by the officer engaged in the often competitive enter-

prise of ferreting out crime.

Id. at 586 n.24 (quoting Johnson v. United States, 333 U.S.

10, 13-14 (1948)). Thus, the preference for warrants is a

means of achieving constitutional reasonableness by protect-

ing the innocent against unwarranted invasions of particularly

important privacy interests. Cf. United States v. Rabinowitz,

339 U.S. 56, 82 (1950) (Frankfurter, J., dissenting) (“[TJhe

founders of this country subordinated police action to legal

restraints, not in order to convenience the guilty but to protect

the innocent.”).”

‘s . .

One commentator put it this way:

|W hy has the Court invalidated so many searches and seizures that

have produced evidence of crime? In many cases, the answer is that

A warrantless entry into a home, however, is not always

constitutionally unreasonable. As this Court has explained,

“(t]he ordinary requirement of a warrant is sometimes sup-

planted by other elements that render an unconsented search

‘reasonable.’ //linois v. Rodriguez, 497 U.S. 177, 185 (1990).

Thus, “circumstances may render a warrantless search or

seizure reasonable.” //linois v. McArthur, 531 U.S. 326, 330

(2001). The presence of exigent circumstances necessitating

immediate entry into a residence is one example in which it is

constitutionally reasonable to enter a home without waiting

for the issuance of a warrant. See, e.g.. Warden v. Hayden,

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

In Hayden, for example, the Court held that police could

enter a residence in pursuit of an armed robber who had gone

into the house minutes earlier, reasoning that “|s}peed here

was essential.” 387 U.S. at 299. Similarly, it is settled that

the Fourth Amendment permits a warrantless entry into a

at the time of the search there was an insufficient probability of

finding the evidence to justify the risk that an innocent person may

be subject to the search. In legal jargon, the Court says that the

police lacked probable cause. In other cases, the potential bias of

the decisionmaker, be it a policeman or an attorney general, has

caused the Court to invalidate a search or seizure. The Court has

reasoned that unless a neutral and detached magistrate makes the

judgment to allow the search or seizure, there is an unjustitiably

high risk that one “engaged in the often competitive enterprise of

ferreting out crime” will subject an wmocent person to a search of

seizure.

Amold H. Loewy, The Fourth Amendment ay a Device for Protecting

the Innocent, 81 Mich. L. Rev. 1229, 1229-30 (1983) (footnotes omitted)

(quoting Johnson, 333 U.S. at 14).

"In Payton itself, the Court was careful to note that it had no occasion

in that case “to consider the sor of emergency or dangerous situation,

described im our causes as ‘exigent circumstances,” that would justify a

warrantless entry into a home for the purpose of ether arrest or search.”

445 U.S. at 583.

12

burning building to extinguish a fire and “to remain in a

building for a reasonable time to investigate the cause of a

blaze after it has been extinguished.” Michigan v. Tyler, 436

U.S. 499, 510 (1978) (footnote omitted). That is because an

“immediate investigation” of a fire’s origin may assist “to

prevent its recurrence, as through the detection of continuing

dangers,” and “to preserve evidence from intentional or acci-

dental destruction.” /d. Thus, a warrantless search may

be constitutionally reasonable when circumstances call for

prompt action without the delays inherent in securing a

warrant.

It remains to consider the standards under which a police

officer is permitted to conclude that exigent circumstances

justify a warrantless entry into a residence. It is to that

question that we next turn.

B. A Police Officer’s Assessment Of The Existence

Of Exigent Circumstances Is Reviewed Under

The Fourth Amendment For Reasonableness.

Because this case is not governed by the Warrant Clause,

the officers’ decision that the exigencies they confronted

justified a warrantless entry is properly reviewed for reason-

ubleness. To be sure, when it comes to exigent circum-

stances, the standard of constitutional reasonableness gener-

ally requires that the police have probable cause to believe

that an exigency justifying a warrantless entry is present.

See Minnesota v. Olson, 495 U.S. 91. 100 (1990). Probable

cause, however, is neither a technical nor a rigid standard; to

the contrary. it embodies the standard of reasonableness. As

this Court has explained, “‘[i]n dealing with probable cause.

_ as the very name implies, we deal with probabilities.

These are not technical: they are the factual and practical

considerations of everyday life on which reasonable and

prudent men, not legal technicians, act.” Gates, 462 U.S. at

231 (ellipsis in original) (quoting Brinegar v. United States,

13

338 U.S. 160, 175 (1949)). Accord, ¢.g., Maryland v. Pringle,

540 U.S. 366, 370 (2003) (quoting Gates, 462 U.S. at 231);

Ornelas v. United States, 517 U.S. 690, 695 (1996) (same).

For example, in Schmerber v. California, 384 U.S. 757

(1966), the Court held that a police officer could require an

individual whom he had probable cause to believe had un-

lawfully driven a vehicle while intoxicated to provide a blood

sample because “[t}he officer . . . might reasonably have

believed that he was confronted with an emergency, in which

the delay necessary to obtain a warrant, under the circum-

stances, threatened ‘the destruction of evidence.”” /d. at 770

(quoting Preston v. United States, 376 U.S. 364, 367 (1964)).

The Court reasoned that inasmuch as “the percentage of

alcohol in the blood begins to diminish shortly after drinking

stops . . . there was no time to seek out a magistrate and

secure a warrant.” /d. at 770-71.

Thus, a police officer’s reasonable belief that he is con-

fronting an exigency is sufficient to establish constitutional

reasonableness. The reasonableness of police action within

the meaning of the Fourth Amendment is assessed under an

objective standard, without reference to the actual motiva-

tions of the officers on the scene. See. e.g... Devenpeck v.

Alford, 543 U.S. 146, 153 (2004); Whren v. United States,

517 U.S. 806, 812-13 (1996). As the Court explained in

Ornelas,

The principal components of a determination of reason-

able suspicion or probable cause will be the events which

occurred leading up to the stop or search, and

then the decision whether these historical facts, viewed

from the standpoint of an objectively reasonable police

officer, amount to reasonable suspicion or to probable

Cause,

517 U.S. at 696. Accordingly, because in this cause an ob-

yectively reasonable officer would have believed that there

was a sufficiently serious cxigency to warrant an immediate

14

entry into the residence rather than delaying until a warrant

could be obtained, the warrantless entry of the residence was

constitutional.

Il. THE DECISION OF BRIGHAM CITY POLICE

OFFICERS TO ACT IMMEDIATELY TO TAKE

CONTROL OF THE SCENE OF ONGOING

CRIMES WAS REASONABLE.

The Brigham City police officers did not exceed the

bounds of constitutional reasonableness when they crossed

the threshold of 1074 Orchard Street without a warrant. The

party at that location was out of control, and the police

reasonably took control of the situation rather than pleading

with the occupants from outside the threshold or waiting for

the issuance of a warrant. In light of what the officers had

already seen from outside the residence, a warrantless entry

posed no risk of an unjustifiable invasion of privacy, and was

an objectively reasonable means of restoring order and keep-

ing the peace. Accordingly, it did not violate the Fourth

Amendment.

A. The Warrantless Entry Was Reasonable.

As a consequence of their observations from outside the

house, the police officers on the scene reasonably concluded

that a beer bash of considerable proportions was underway.

Officer Johnson testified that in circumstances like these, he

had observed as many as 20 or 30 underage drinkers trying to

flee a residence as the police approached. J.A. 25. The trial

court found that the noise coming from the residence was so

loud that the officers reasonably concluded that seeking entry

from the front door would have been impracticable, that they

could not have been heard even when they were in the back

yard just outside the kitchen, and that the revels at the

i)

residence included both underage drinking and assaultive

behavior. See Pet. App. 46-47.’

To be sure, the trial court also found “no exigent circum-

stances sufficient to justify the officer's entry into the resi-

dence.” /d. at 47." Read most favorably to respondents,

perhaps that finding suggests that the officers might have

believed that the adults present were able to restrain the

juvenile who had just punched one of them and that a war-

rantless entry was not justified on the ground that either the

juvenile or the injured adult was “in need of immediate aid.”

"The lower courts did not find that the officers’ entry into the back-

yard or their observation of the struggle going on inside the house while in

the backyard violated the Fourth Amendment, nor did respondents press

that position in the courts below. Indeed, the Utah Supreme Court stated

that the officers’ observations from outside of the residence “are not at

issue.” Pet. App. 9. Inasmuch as the officers were able to see into the

backyard through the slats of the fence while standing i a location that

was easily accessible to the public, it 1s apparent that respondents had no

reasonable expectation of privacy in the backyard that would entitle them

to mvoke Fourth Amendment protections. See. e.¢.. Califorma v

Ciraolo, 476 U.S. 207, 211-15 (1986); Maryland v Macon, 472 U.S. 463,

469 (1985). See also Minnesota v Carter, 525 U.S. 83, 103-06 (1998)

(Breyer, J.. concurring in the judgment). Moreover, under the Fourth

Amendment, the authorities may enter property in which there is no

reasonable expectation of privacy, even if their conduct amounts to a

technical trespass. See Olwer v. United States, 466 U.S. 170 (1984).

Similarly, the Fourth Amendment permits the police to act on what they

see in plain view from a location where they have a right to be because

such observations compromise no legitimate expectation of privacy. See,

¢ x... Horton v California, 496 U.S. 128 (1990). Nothing tn the findings

Suggests that any legitimate expectation of privacy held by any of the

respondents was infringed by the police entry into the backyard of by the

observations the police made prior to their entry into the home.

* The trial court’s conclusion on this point is not entitled to deferential

review. This Court undertakes independent review of the justification for

police conduct under the Fourth Amendment, deferring only to the trial

court’s determination of purely historical facts. See Ornelas, 517 US. at

696-700.

16

Mincey v. Arizona, 437 U.S. 385, 392 (1978). But that does

not mean that the officers lacked an objectively reasonable

belief that immediate police action was necessary to restore

order.

The officers on the scene had ample reason to believe that

the adults at 1074 Orchard Street could not be trusted to

handle the situation with which they were confronted. Those

adults were permitting unlawful underage drinking that had

already produced at least one predictable result—a physical

altercation between one juvenile and four adults. See J.A. 35.

If the police had remained outside the residence until they

procured a warrant, the unlawful activities within might well

have continued and even escalated.

Moreover, even if, as the lower courts evidently believed,

the police could have halted the unlawful activities within by

pleading for order from outside the house, the delay inherent

in obtaining a warrant would have risked the destruction of

evidence, as in Schmerber.” See 384 U.S. at 770. It would

also have created a risk that the individuals inside the house

could have fled while a warrant was being sought. See J.A.

25, 45, 48, 49. Indeed, some of these suspects might have

driven away from the residence, creating a further risk that

impaired individuals might drive while intoxicated. Taking

control of the scene and physical custody of the perpetrators

was the course of action best tailored to restore order, prevent

further unlawful conduct, and minimize risk of harm.

Futhermore, in assessing the justification for a warrantless

entry, the officers could reasonably consider that it takes

substantial time to obtain a warrant. The most expeditious

means of obtaining a warrant is by telephone, which requires

* Although the record does not indicate whether any blood or breath

tests were performed, at the time the officers entered the residence they

could not know whether there might be a necessity for the prompt ad-

ministration of such tests.

17

no written application, Under Utah law, an officer can obtain

a telephonic warrant by contacting a state magistrate and

providing the magistrate with “sworn oral testimony” that

must be “recorded and transcribed.” Utah Code Ann. § 77-

23-204(2) (Bender 2000). The officer must also read the

proposed warrant verbatim to the magistrate, who must then

consider whether changes should be made before authorizing

the officer to sign the magistrate’s name to the warrant. See

id. Federal law contains similar rules governing telephonic

warrants. See Fed. R. Crim, P. 41(d)(3)(A).

These requirements are hardly excessive; they are likely

compelled by the Warrant Clause’s oath or affirmation and

particularity requirements. See, e.g., Groh, 540 U.S. at 557-

58. But given the need for precision in both the oral warrant

application and the draft warrant itself, composing even a

telephonic warrant application is not simple; the Utah Su-

preme Court has acknowledged that this process “can take

significant time.” State v. Ashe, 745 P.2d 1255, 1268 (Utah

1987). The case law suggests that obtaining a telephonic

search warrant can take from thirty minutes to two hours.

See, ¢.g., United States v. Tarazon, 989 F.2d 1045, 1050 (9th

Cir. 1993) (thirty minutes insufficient); United States vy.

Thomas, 893 F.2d 482, 485 (2d Cir.) (at least two hours

required in New York), vacated on other grounds, 916 F.2d

766 (2d Cir. 1990); United States v. Cuaron, 700 F.2d 582,

590 (10th Cir. 1983) (thirty minutes insufficient); United

States v. Hackett, 638 F.2d 1179, 1183 (9th Cir. 1980) (twenty

to thirty minutes insufficient); United States v. Morgan, 744

F.2d 1215, 1222 (6th Cir. 1985) (thirty minutes sufficient).

And in this case the delay inherent in obtaining a warrant

would only be increased by the need to locate and rouse a

magistrate at 3:00 a.m.

Under these circumstances, it was reasonable for the offi-

cers to conclude that the best course of action was for them to

enter the residence, take control of the scene, and place those

18

whom they had observed violate various state criminal laws

in custody. The officers had ample reason not to leave the

adults who had already let the party get out of control in

charge of the premises until a warrant could be obtained.

Immediate entry also avoided the potentially substantial

delays necessary to obtain a warrant, while ensuring that un-

lawful underage drinking and assaultive behavior would

immediately stop and that no suspects would be able to flee.

And by acting immediately, the officers exercised a preroga-

tive the law has traditionally recognized to restore order by

making warrantless arrests for offenses committed in their

presence. See Atwater vy. City of Lago Vista, 532 U.S. 318,

329-32, 342-45 (2001); United States v. Watson, 423 U.S.

411, 418 (1976). See also City of Chicago v. Morales, 527

U.S. 41, 106-09 (1999) (Thomas, J., dissenting).

Most important, under the circumstances of this case the

rationale for a warrant vanishes. As we explain above, a

warrant is presumptively required for an entry into a resi-

dence in order to “minimize[{] the danger of needless intru-

sions” into the privacy of the home by requiring that the

pertinent “‘inferences be drawn by a neutral and detached

magistrate instead of being judged by the officer engaged in

the often competitive enterprise of ferreting out crime.’”

Payton, 445 U.S. at 586 & n.24 (quoting Johnson, 333 U.S.

ut 14). Here the officers were not required to draw any

inferences; they were confronted with blatantly unlawful con-

duct occurring within their plain view. Permitting a warrant-

less entry under these circumstances creates no meaningful

risk of a “needless” intrusion on the privacy of the home; but

requiring a warrant would place obstacles in the way of

officers trying to restore order and enforce the law. Surely

the Fourth Amendment's practical and commonsense stan-

dard of reasonableness does not require a warrant when the

authorities” observations have made it clear that a warrantless

search and seizure would not compromise any legitimate

expectation of privacy. Cf. Minnesota v. Carter, 525 U.S. 83,

19

105-06 (1998) (Breyer, J., concurring in the judgment)

(warrantless observation of drug activity inside apartment

through gap in drawn blinds was constitutionally reasonable );

United States v. Jacobsen, 466 U.S. 109, 118-21 (1984)

(federal agents’ warrantless opening of parcel and removal

and examination of white powder that Federal Express

employees had already inspected and described to them

infringed no protected expectation of privacy).

B. The Police Lawfully Treated The Crimes They

Observed As Sufficiently Serious To Justify A

Warrantless Entry.

The Utah Supreme Court expressed concern that the mag-

nitude of the harm threatened by the events at issuc in this

cuse was not sufficient to support a warrantless entry of a

residence. See Pet. App. 14, 17-18. Indeed, in Welsh v.

Wisconsin, 466 U.S. 740 (1984), this Court held that “appli-

cation of the exigent-circumstances exception in the context

of a home entry should rarely be sanctioned when there ts

probable cause to believe that only a minor offense . . . has

been committed.” /d. at 753. On that basis, the Court con-

cluded that a warrantless entry of a residence to arrest a

suspected drunk driver who had recently arrived home in an

apparently intoxicated state violated the Fourth Amendment.

Id. Welsh distinguished Schmerber on the ground that

“Wisconsin has chosen to classify the first offense for driving

while intoxicated as a noncriminal, civil forfeiture offense for

which no imprisonment is possible.” /d. at 754.

In this case, by contrast, the offense at issue—contributing

to the delinquency of a minor—is punishable under Utah law

by up to six months imprisonment. See Utah Code Ann.

§§ 76-3-204(2) & 76-10-2301 (West 2005)."" Thus, Welsh

10) og . .

Phe other offenses that supported respondents’ arrests were also jail-

able. Disorderly conduct, which is detined to include “mak|{ing| unrea-

sonable noises in a private place which can be heard in a public place.”

20

provides no support for the decision below. What is more,

unlike Welsh, this case involves conduct that threatens the

welfare of minors, and that fact implicates important state

interests that favor immediate police intervention. It is well

settled that the States have a compelling interest in protecting

the well-being of minors. See, e.¢g., Osborne v. Ohio, 495

U.S. 103, 109-10 (1990); Ginsberg v. New York, 390 U.S.

629, 640 (1968). In Welsh, however, no comparable and

ongoing threat to the welfare of minors or others was present.

To the contrary, the Court stressed that because Welsh had

“already arrived home, and had abandoned his car at the

scene of the accident, there was little remaining threat to the

public safety.” 466 U.S. at 753.

In this Case, just prior to the warrantless entry minors were

drinking alcohol and the adults had lost control of events. A

warrantless entry here ensured that underage drinking was

halted and that a violent and possibly intoxicated minor could

be safely returned to his parents by the authorities. Moreover,

the officers had already observed several criminal offenses,

and, as noted above, the law has long recognized the pro-

priety of peace officers making warrantless arrests for

offenses committed in their presence. See Anwater, 532 U.S.

at 336-40. These important governmental interests—prevent-

ing underage drinking, protecting minors, and restoring pub-

lic order—were not present in Welsh.

Utah Code Ann. § 76-9-102(1 )(b)(iti) (2005), “is a class C misdemeanor if

the offense continues after a request by a person to desist.” /d. § 76-9-

102(3). The punishment for a class C misdemeanor includes a term of

imprisonment not exceeding ninety days. /d § 76-3-204(3). And under

Utah law, “|a] person may not permit any other person to become intoxi-

cated or any intoxicated person to consume any alcoholic beverage in:

any premises of which the person is the owner, tenant, or occupant... .”

Utah Code Ann. § 32A-12-2 1601 )a) (2005). A violation of this prohibi-

tion is aclass C misdemeanor. /d § 32A-12-216(2).

2]

—

The State of Utah is entitled to treat the conduct at issue in

this case as a sufficiently serious offense to justify a war-

rantless entry. Underage drinking is a major public health

problem. For example, while representing only seven percent

of licensed drivers, persons under age 21 represent thirteen

percent of those involved in fatal traffic accidents “who had

been drinking.”” Committee on Developing a Strategy to Re-

duce and Prevent Underage Drinking, National Research

Council and Institute of Medicine, Reducing Underage

Drinking: A Collective Responsibility 60 (Richard J. Bonnie

& Mary Ellen O'Connell eds., 2004).'' The consumption of

alcohol also impairs judgment and increases the risk of

violent and other risk-taking behavior. See id. at 58-65."

In light of the magnitude of the societal problems posed

by underage drinking, surely it qualifies as a sufficiently

serious problem to justify a warrantless entry under exigent

circumstances.

Finally, to the extent Welsh is relied upon to support the

judgment below, the soundness of that decision is open to

question. In Welsh, Justice Brennan wrote for the Court that

Wisconsin's classification of driving while intoxicated as a

nonjailable offense was “the best indication of the State’s

interest in precipitating an arrest.” 466 U.S. at 754. More

'' Indeed, its concern about underage drinking led Congress to enact

the National Minimum Drinking Age Act which made the States’ receipt

of federal highway funding conditional upon setting a minimum drinking

age of 21. See South Dakota vy Dole, 483 U.S. 203, 208-09 (1987).

2 “1 A Hicohol jis} reported to be involved in 36 percent of homicides,

12 percent of male suicides, and & percent of female suicides involving

people under 21-—a total of about 1,500 homicides and 300 suicides in

2000." Reducing Underage Drinking, supra, at 61. Alcohol use among

youths is strongly correlated with violence, suicidal behaviors, use of

illegal drugs, and sexually risky behaviors. See Ralph Hingson & Donald

Kenkel, National Research Council and Institute of Medicine, Soc tal,

Health, and Economic Consequences of Underage Drinking, in Reducing

Underage Drinking, supra, 351, at 357-60.

22

recently in Atwater, however, the Court took a very different

approach. Atwater held that the Fourth Amendment permits

custodial arrests for nonjailable traffic offenses and artic-

ulated a variety of legitimate state interests in making such

arrests. See 532 U.S. at 348-54. In particular, the Court

explained that Fourth Amendment jurisprudence reflects “an

essential interest in readily administrable rules.” /d. at 347.

A rule making the propriety of a search or seizure depend on

whether an offense is jailable would fail this test because

an officer on the street might not be able to tell. It is not

merely that we cannot expect every police officer to

know the details of frequently complex penalty schemes,

but that penalties for ostensibly identical conduct can

vary on account of facts difficult (if not impossible) to

know at the scene of an arrest. Is this the first offense or

is the suspect a repeat offender? Is the weight of mari-

juana a gram above or a gram below the fine-only line?

Where conduct could implicate more than one criminal

prohibition, which one will the district attorney decide to

charge? And so on.

Id. at 348-49 (citation and footnotes omitted),'*

There is considerable tension between Welsh’s view that a

State has no legitimate interest in making custodial arrests for

nonjailable offenses and the subsequent holding in Atwater.

In light of the approach taken in Atwater, the decision in

Welsh is a particularly slender reed on which to support the

decision below.

'" Welsh stself illustrates this point. The offender in Welsh had in fact

committed a jailable offense since he had a prior conviction for drunk

driving, although the arresting officers did not know thts at the time of hts

arrest. See Welsh, 466 U.S. at 746 0.6. In Anwater, the Court took special

note of this point. See 532 U.S. at 348 n.18. The Anvater Coun also cited

the dissenting opmmon in Weish with approval. See id. at 341.

23

C. The Officers Were Not Required To Explore

Other Means Of Restoring Order Before They

Entered The Residence.

The Utah Supreme Court ruled that the Brigham City

police officers should have attempted to quell the disturbance

by “attempt{ing] to knock before entering” the residence, Pet.

App. 20, even though it acknowledged the trial court’s find-

ing that a knock probably would have been futile. See éd.

(noting trial court’s finding that “owing to the noise and

tumult in the kitchen a knock ‘probably would not have been

heard’). See also id. at 47 (trial court finding on futility of

police knock). The Fourth Amendment's practical and com-

monsense standard of reasonableness does not require the

police to undertake what are likely to be ineffectual measures

before they can enter a residence to take control of a breach

of the peace; nor does it require the police to delay taking

action when they confront an exigency.

Although the Fourth Amendment presumptively requires

officers to knock and announce their authority when execut-

ing a warrant for the search of a residence, see Wilson vy.

Arkansas, 514 U.S. 927 (1995), that presumption is overcome

“if circumstances support a reasonable suspicion of exigency

when the officers arrive at the door.” United States v. Banks,

540 U.S. 31, 37 (2003). For example, the police are not

required to knock and announce their authority before

entering a residence when they “have a reasonable suspicion

that knocking and announcing their presence, under the

particular circumstances, would be dangerous or futile, or that

it would inhibit the effective investigation of the crime by, for

example, allowing the destruction of evidence.” Richards vy.

Wisconsin, 520 U.S. 385, 394 (1997). Surely there is no

justification for any different standard governing a warrant-

less entry under exigent circumstances, as in this cause. And

here, given the finding of the trial court, it ts plain that the

officers could have reasonably believed that knocking and

24

pleading for order trom outside the threshold would have

been futile given the tumult they observed within. Moreover,

given the exigency that justified immediate action to take

control of the scene, the officers were under no obligation to

delay entry.

Indeed, applying the knock-and-announce principle to this

case borders on the absurd. The purpose of the knock-and-

announce requirement is to minimize the need to damage

private property by a forced entry and to give the occupants

an opportunity to prepare themselves for entry. See Richards,

520 U.S. at 393 n.5. Here, the officers could enter through

an unlocked screen door and probably could not be heard

over noise of the ongoing fight. See Pet. App. 47 (trial court

findings). Moreover, the fight was occurring in the kitchen,

an inherently dangerous location. See J.A. 63 (Officer

Johnson’s testimony that “[k]itchens are full of weapons”).

Under these circumstances, the officers could reasonably

believe that “knocking and announcing . . . would be dan-

gerous or futile,” Richards, 520 U.S. at 394, and that the

knock-and-announce rule simply was inapplicable.

One might also hypothesize that the police could have

restored order and prevented flight from the scene by im-

pounding the premises from the outside pending the issuance

of a warrant. To be sure, this Court has held that the police

muy quarantine a residence pending the issuance of a warrant

when they have probable cause to believe that evidence of a

crime is within but lack exigent circumstances that would

justify a warrantless entry. See McArthur, 531 U.S. at 331-

34. Insisting on the use of a quarantine in this case, however,

would have required the posting of officers at all points of

egress to ensure that no one left the residence while other

officers prepared a warrant application and roused a judge at

3:00 a.m.

Such a course of action would place great strain on police

resources. Indeed, the record contains testimony that all four

25

Brigham City police officers on duty at the time responded to

the call concerning 1074 Orchard Drive, including two offi-

cers who were thereby diverted from DUI patrol. See J.A.

24-25. A rule requiring impoundment of premises would

leave the city without an officer to respond to auto accidents,

crime victims, domestic violence, or other reports of suspi-

cious or criminal activity. In the event some officers were

summoned to another incident before the warrant could be

obtained or executed, the Utah Supreme Court's approach

would likely require the abandonment of the operation or

flight of some or all of the suspects. See id. at 25. Surely the

Fourth Amendment's standard of reasonableness was not in-

tended to impose such a Hobson’s choice on police depart-

ments with finite resources. |

In any event, even if requesting order from outside the

residence or impounding the residence pending issuance of a

warrant were practicable alternatives, that still would not

mean that these options were constitutionally required. The

approach taken by the courts below effectively requires the

police—even when they witness the commission of criminal

offenses, including an assault and underage drinking—to un-

dertake any step that a court might subsequently characterize

as an alternative course of conduct more respectful of privacy

interests.

As the Court held in Atwater, however, “[o}ften enough,

the Fourth Amendment has to be applied on the spur (and in

the heat) of the moment, and the object in implementing its

command of reasonableness is to draw standards sufficiently

clear and simple to be applied with a fair prospect of surviv-

ing judicial second-guessing months and years after an arrest

is made.” 532 U.S. at 347. Relatedly, “this Court has

repeatedly stated that reasonableness under the Fourth Amend-

ment does not require employing the least intrusive means,

because ‘[t}he logic of such elaborate less-restrictive alterna-

tive arguments could raise insuperable barricrs to the exercise

26

of virtually all search-and-seizure powers.” Board of Educ.

of Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, 837 (2002)

(brackets in original) (quoting Umited States v. Martinez-

Fuerte, 428 U.S. 543, 556 n.12 (1976)): see also, e.z., Atwater,

§32 U.S. at 350-51; Illinois v. Lafayette, 462 U.S. 640, 647

(1983).

The approach of the courts below is utterly inconsistent

with these standards. Under that approach, whenever a court,

with unlimited time for after-the-fact reflection, can think of

some alternative course that the police could have taken that

might have lessened an intrusion on privacy interests, the

court should brand the police conduct as unreasonable under

the Fourth Amendment. Few law enforcement decisions

about the presence of exigent circumstances—which neces-

sarily must be made within seconds as an officer responds to

rapidly unfolding events—could survive such after-the-fact

judicial review.

The Fourth Amendment holds police officers responding to

u breach of the peace to a standard of objective rea-

sonableness. Under that standard, the officers in this case

reasonably decided that they were not constitutionally re-

quired to remain outside the residence and plead with the

adults inside to restore order and put a halt to underage revels

at 3:00 a.m. Instead, the officers properly took control of the

scene, thereby halting ongoing criminal conduct, restoring

order, and minimizing risk of harm. That course of action

was eminently reasonable given the practical realities con-

fronting the officers called to the scene; it was equally

reasonable within the meaning of the Fourth Amendment.

27

CONCLUSION

The judgment of the Supreme Court of Utah should be

reversed.

Respectfully submitted,

LAWRENCE ROSENTHAL RICHARD RUDA *

CHAPMAN UNIVERSITY Chief Counsel

SCHOOL OF LAW STATE AND LOCAL LEGAL

Orange, California 92866 CENTER

(714) 628-2650 444 North Capitol Street, N.W.

Suite 309

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

February 21, 2006 Amici Curiae