# Amicus Curiae Brief — Brigham City v. Stuart

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0226%3A12

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 547 U.S. 398

## Text

(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.

(i)

hh

alae?
es re
? re

6
i.

Jt ey ;
Deen 8

7 ae
= WwW

laa IE eer
. i ; oo
E

*

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

(iti)

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0226%3A12. Public record. Not legal advice.