Petition for Writ of Certiorari — Magluta v. United States

In the Supreme Court of the Anited States

OCTOBER TERM, 1995

SALVADOR MAGLUTA,

PETITIONER,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

KIMBERLY HOMAN MARTIN G. WEINBERG

SHEKETOFF & HOMAN OTERI, WEINBERG & LAWSON

84 State Street The Statler Building

Boston, Massachusetts 02109 20 Park Plaza

(617) 367-3449 Suite 905

Boston, Massachusetts 02116

(617) 227-3700

Counsel of Record

Roy BLAckK, P.A.

201 S. Biscayne Boulevard

Suite 1300

Miami, Florida 33131

(305) 371-6421

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

nm NG ind et RNIN Vc In i i ERAN A GEE NO AOS

Oe

i

QUESTION PRESENTED FOR REVIE¥*

Whether the holding of the Eleventh Circuit Court of - ippeals

that law enforcement officers may enter the home of « citizen

named in an arrest we rant on less than probable cause to

believe that he is within the premises at the time of their entry

is contrary to the probable cause requirement of the Fourth

Amendment, as embodied in the “reason to believe” standard

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

ii Table of Contents.

Question presented for review i

Table of contents ii

Table of authorities cited ili

Opinion below

Jurisdiction

l

l

Constitutional provision involved 2

Statement of the case 2

Reasons why the writ should be granted 3

Argument 6

The Payton “reason to believe the suspect is within”

standard embodies a requirement that law enforce-

ment officers must, at the time of their entry into a

home for purposes of executing an arrest warrant

naming the resident of the premises, have probable

cause to believe that the resident is within his home 6

A. This Court’s holding in Payton v. New York em-

bodies a standard of probable cause to believe that

the individual named in the arrest warrant is at

home 7

1. The constitutional principles and policy con-

siderations underlying Payton and this Court’s

Fourth Amendment jurisprudence require a

standard of probable cause 7

2. The dissenting opinion in Payton understood

the majority opinion to have articulated a

probable cause standard 11

B. Subsequent Fourth Amendment jurisprudence of

this Court has been predicated upon an under-

standing of the Payton “reason to believe” stand-

ard as embodying a requirement of probable cause 12

C. This Court should grant certiorari to restore the

“firm line at the entrance to the house” drawn by

TABLE OF CONTENTS (CONT’D) ili

the Fourth Amendment by invalidating the un-

precedented “exception” to the probable cause re-

quirement created by the eleventh circuit in this

case 15

Conclusion 17

Appendix follows page 18

Table of Authorities Cited.

CASES.

Arizona v. Hicks, 480 U.S. 321 (1987) 9n, 13n, 14

Carroll v. United States, 267 U.S. 132 (1925) 8n

Coolidge v. New Hampshire, 403 U.S. 443 (1971) 6n

Johnson v. United States, 333 U.S. 10 (1948) 6n, 8n, 10

Jones v. United States, 357 U.S. 493 (1958) 6n

Maryland v. Buie, 494 U.S. 325 (1990) 12, 13n

McDonald v. United States, 335 U.S. 451 (1948) 6n

Michigan v. Long, 463 U.S. 1032 (1983) 13n

Nixon v. Fitzgerald, 457 U.S. 731 (1982) 2

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

People v. Payton, 45 N.Y.2d 300 (1978) 1]

Semayne’s Case, 3 Coke Rep. 919 (Fraser ed., pt. 5) 6

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

6n, 7, 8, 9n, 14n

Terry v. Ohio, 392 U.S. 1 (1968) 13n

United States v. Clifford, 664 F.2d 1090 (1981) 15

United States v. Curzi, 867 F.2d 36 (1989) 15

iv TABLE OF AUTHORITIES CITED (CONT’D)

United States v. Lauter, 1995 WL 351457 (2d Cir. June

12, 1995) 5, 17

United States v. Magluta, 44 F.3d 1530 (1995) 4, 8, 9, 17

United States v. Salvador, 740 F.2d 752 (9th Cir. 1984),

cert. denied, 469 U.S. 1196 (1985) 15

United States v. Santana, 427 U.S. 38 (1976) 12n, 13

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

297 (1972) 6

United States v. Watson, 423 U.S. 711 (1976) 8n

United States v. Woods, 560 F.2d 660 (1977) 16

Warden v. Hayden, 387 U.S. 294 (1967) 8n, 13

Welsh v. Wisconsin, 466 U.S. 740 (1984) 6n

Zurcher v. Stanford Daily, 436 U.S. 547 (1978) 8

STATUTES AND RULES.

United States Constitution

Fourth Amendment passim

United States Code

28 U.S.C. § 1254(1) 2

28 U.S.C. § 1291 2,4

MISCELLANEOUS.

Amsterdam, Perspectives on the Fourth Amendment,

58 Minn. L. Rev. 349 (1974) 9n

Stern, Gressman & Shapiro, Supreme Court Practice

224 (6th ed. 1986) 2

No.

In the Supreme Court of the United States

OCTOBER TERM, 1995

SALVADOR MAGLUTA,

PETITIONER,

Vv.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

OPINION BELOW

The opinion of the Eleventh Circuit Court of Appeals is

reported at 44 F.3d 1530 (11th Cir. 1995).

JURISDICTION

The judgment of the United States Court of Appeals for the

Eleventh Circuit was entered on February 21, 1995.

Petitioner’s timely request for rehearing was denied on May

5, 1995.

2

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1254(1). This case was in the Court of Appeals on the

respondent’s appeal, pursuant to 28 U.S.C. § 1291, from the

granting of a motion to suppress evidence by the United States

District Court for the Southern District of Florida. This case is,

accordingly, within the certiorari jurisdiction of this Court. Nixon

v. Fitzgerald, 457 U.S. 731, 743 (1982); Stern, Gressman &

Shapiro, Supreme Court Practice 224 (6th ed. 1986).

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the United States Constitution

provides:

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

house, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly de-

scribing the place to be searched, and the person or

things to be seized.

STATEMENT OF THE CASE

On April 10, 1991, a grand jury in the Southern District of

Florida returned a 24-count indictment against petitioner Sal-

vador Magluta charging him with various cocaine-related of-

fenses. A warrant for Magluta’s arrest was issued the same

day. Magluta was arrested at his residence' on October 15,

'The references in this petition to “his residence” or “Magluta’s residence” do

not represent a concession that the premises were, in fact, his residence. That issue

was contested by petitioner in the hearings before the magistrate judge. The magis-

trate judge found that there was probable cause to believe that the premises were

Magluta’s residence, which conclusion was adopted by the district court judge.

3

1991. The officers who entered Magluta’s home to effectuate

his arrest possessed a warrant for his arrest but did not at that

time have a search warrant for the premises. Following this

entry, an application for a search warrant was made, the affi-

davit in support of which relied in large part upon the observa-

tions made inside the residence by the entering officers.

On December 3, 1991, Magluta filed a motion to suppress

all evidence seized during the search of his residence pursuant

to the search warrant obtained after Magluta’s arrest on the

grounds, inter alia, (1) that the entry in Magluta’s residence

to arrest him violated the Fourth Amendment to the United

States Constitution because the entering officers did not, at the

time of the entry, have probable cause to believe that Magluta

was within his residence, as required by Payton v. New York,

445 U.S. 573 (1980), (2) that the observations made by the

entry team inside the residence during the arrest entry were

the tainted product of the unlawful entry and could not, there-

fore, be considered in determining whether there was probable

cause to issue the search warrant, (3) that when those tainted

observations were excised from the probable cause calculus,

the warrant which issued was not supported by probable cause,

and (4) therefore, that the search of Magluta’s residence vio-

lated the Fourth Amendment, requiring the suppression of all

evidence seized during that search and any and all fruits thereof.

On September 2, 1993, following lengthy evidentiary hear-

ings, Magistrate Judge Brown issued his Report and Recom-

mendation in which he concluded that the entry into Magluta’s

residence was unlawful because the entering officers had

neither probable cause to believe nor reasonable suspicion?

* Petitioner had argued to the magistrate judge that the “reason to believe” standard

of Payton v. New York, 445 U.S. 573, 613 (1980), embodied a requirement of

probable cause to believe that the person named in the arrest warrant was within

the premises at the time of the police entry into his home to effectuate his arrest,

while respondent argued that mere reasonable suspicion that the individual was at

home would suffice. The magistrate judge found it unnecessary to resolve the issue,

as he concluded that not even the lesser standard was satisfied in this case.

4

that Magluta was present at the premises at the time of the

entry and that, absent the information recited in the affidavit

in support of the search warrant which rested upon the officers’

observations during the unlawful entry, the affidavit failed to

demonstrate the existence of probable cause. On September

30, 1993, the district court judge (Moreno, J.) issued an order

approving and adopting the magistrate judge’s report and

recommendation in its entirety and granting petitioner’s motion

to suppress.

Thereafter, respondent United States appealed that determin-

ation to the United States Court of Appeals for the Eleventh

Circuit pursuant to 28 U.S.C. § 1291, arguing that the Payton

“reason to believe” standard embodied a requirement of some-

thing less than probable cause, albeit perhaps more than articu-

lable suspicion. Despite the government’s “fail[ure] to cite a

single case in which the Payton standard has been defined as

embodying less than probable cause,” United States v. Mag-

luta, 44 F.3d 1530, 1534 (11th Cir. 1995), and its own inablity

to point to a single case so holding, the Eleventh Circuit con-

cluded that law enforcement officers who possess an arrest

warrant may enter the home of the citizen named in that warrant

on less than probable cause to believe that he is at home at

the time of the entry. /d. at 1535.

Petitioner herein seeks a writ of certiorari to review this

question of great constitutional magnitude and of fundamental

importance to the administration of criminal justice — whether,

under the Fourth Amendment to the United States Constitution,

the threshold of the home may be crossed by law enforcement

officers absent probable cause to believe that the object of their

search, i.e., the person named in the arrest warrant, is on the

premises at the time of the entry into his home.

5

REASONS WHY THE WRIT SHOULD BE GRANTED

The holding of the Eleventh Circuit Court of Appeals that

law enforcement officers who possess an arrest warrant naming

a citizen may enter his home without probable cause to believe

that he is there at the time of the entry represents a radical and

unprecedented departure from established Fourth Amendment

principles. At the core of the historic protections enshrined in

the Fourth Amendment lies the sacrosanct threshold of the

citizen’s home which, with certain very limited exceptions not

here relevant, may not be transgressed absent probable cause.

“Overriding respect for the sanctity of the home . . . has been

embedded in our traditions since the origins of the Republic.”

Payton v. New York, 445 U.S. 573, 601 (1980). The decision

in this case threatens, if left unchecked,’ to engender a wholly

new — and constitutionally impermissible — “exception” to

the requirement of probable cause to search which has histor-

ically stood as an inviolable barrier to governmental intrusion

into a citizen’s home.

This Court should grant certiorari to halt at its inception this

unprecedented incursion upon the Fourth Amendment’s

guarantee that the privacy of a citizen’s home will not be

invaded by law enforcement officers absent probable cause for

the entry.

*In the short time since the decision in this case, the Second Circuit has already

adopted in dictum the reasoning of the Eleventh Circuit. United States v. Lauter,

1995 WL 351457 (2d Cir. June 12, 1995). See Section I(C), infra.

nn ee Yee ee eee

6 |

ARGUMENT

THE PAYTON “REASON TO BELIEVE THE SusPECT Is WITH-

IN” STANDARD EMBODIES A REQUIREMENT THAT LAW EN-

FORCEMENT OFFICERS MUST, AT THE TIME OF THEIR ENTRY

INTO A HOME For PURPOSES OF EXECUTING AN ARREST

WARRANT NAMING THE RESIDENT OF THE PREMISES, HAVE

PROBABLE CAUSE TO BELIEVE THAT THE RESIDENT Is WITH-

IN His HOME.

Entry into the home was the primary evil against which the

Fourth Amendment was erected, United States v. United States

District Court, 407 U.S. 297, 313 (1972), drawing upon hun-

dreds of years of English jurisprudence regarding the sanctity

of the home, as reflected in Lord Coke’s oft-quoted aphorism

that “every man’s home is his castle,” Semayne’ s Case, 3 Coke

Rep. 919 (Fraser ed., pt. 5).* Payton itself recognized that:

In terms that apply equally to seizures of property

and seizures of persons, the Fourth Amendment has

drawn a firm line at the entrance to the house. Absent

exigent circumstances, that threshold may not rea-

sonably be crossed without a warrant.

Payton v. New York, 445 U.S. at 590 (emphasis added).°

Payton established a limited exception to the search warrant

‘Perhaps nowhere have these fundamental beliefs in the special protections due

an individual's home been expressed more eloquently than by Lord Pitt in his 1763

address to the House of Commons, stirring words which “echoed and re-echoed

throughout the Colonies,” Payton v. New York, 445 U.S. at 601 n.54:

The poorest man may in his cottage bid defiance to all the forces of

the Crown. It may be frail; its roof may shake; the wind may blow

through it; the storm may enter; the rain may enter; but the King of

England cannot enter — all his forces dare not cross the threshold of

the ruined tenement.

* See, ¢.g., Coolidge v. New Hampshire, 403 U.S. 443, 474-75 (197i); Welsh

v. Wisconsin, 466 U.S. 740, 750 (1984); Steagald v. United States, 451 U.S. 204,

214 n.7 (1981); Jones v. United States, 357 U.S. 493, 497-98 (1958), McDonald

v. United States, 335 U.S. 451, 455-56 (1948); Johnson v. United States, 333

U.S. 10, 13-14 (1948).

7

requirement for situations in which police possess an arrest

warrant for a named individual and have identified a particular

residence as that of the person named in the warrant and have

“reason to believe” that he is at home. /d. at 603. Such an

exception to the search warrant requirement may not, however,

consistent with the common law of sez ch and seizure, this

Court’s Fourth Amendment jurisprudence of the past two

hundred years, and the indisputable position of the home at

the core of the protections afforded by the Fourth Amendment,

be so readily expanded, as the Eleventh Circuit did, to also

encompass an exception to the requirement of probable cause.

A. This Court’ s Holding In Payton v. New York Embodies A

Standard of Probable Cause To Believe That The Individ-

ual Named In The Arrest Warrant Is At Home.

1. The Constitutional Principles and Policy Considera-

tions Underlying Payton and This Court’s Fourth

Amendment Jurisprudence Require A Standard of

Probable Cause.

The requirement of probable cause to believe that the person

named in the arrest warrant is within his residence at the time

of the police entry flows directly from the well-recognized

principle that, when police enter a home to effectuate an arrest,

they conduct a search of the premises, within the meaning of

the Fourth Amendment, for that person.* See Steagaldv. United

States, 451 U.S. 204, 214 n.7 (1981).

*A search of the home pursuant to an arrest warrant may be extremely brief, for

example, when the police enter and immediately observe and seize the suspect “in

plain view” or it may be virtually as extensive as many searches pursuant to a

search warrant, for example, when police — as here — open and inspect closets,

cabinets, and all places or objects in the home where a person might conceivably

hide, exposing the occupant’s private life to the scrutiny of law enforcement officers.

Indeed, the Payton Court noted that the difference between the authorized scope

of a search pursuant to a search warrant and that pursuant to an arrest warrant “may

be more theoretical than real. . . .” Payton v. New York, 445 U.S. at 589.

8

The simple language of the [Fourth] Amendment

applies equally to seizures of persons and to seizures

of property.

Payton v. New York, 445 U.S. at 585. 4. search — either for

persons or for things — is reasonable »ithin the meaning of

the Fourth Amendment “only when there is ‘probable cause’

to believe that they will be uncovered in a particular dwelling.”

Zurcher v. Stanford Daily, 436 U.S. 547, 555 (1978).

Rather than proceeding from the historic understanding that

entry into a home to conduct a search violates the Fourth

Amendment unless law enforcement officers have probable

cause to believe that the object of their search is on the prem-

ises,’ the Eleventh Circuit regarded this fundamental precept

as a matter left open to question by Payton, based upon an

assumption that had this Court meant to impose a probable

Cause requirement, it would have employed the words “prob-

able cause” rather than “reason to believe” in its articulation

of the Payton standard.* United States v. Magluta, 44 F.3d at

’For example, not even the most exigent of circumstances will permit a warrant-

less search of a home in the absence of probable cause. See, e.g., Warden v.

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

*The Eleventh Circuit concluded that “[t}he strongest support for a lesser burden

than probable cause remains the text of Payton, and what we must assume was a

conscious effort on the part of the Supreme Court in choosing the verbal formulation

of “reason to believe” over that of “probable cause.” United States v. Magluta,

44 F.3d at 1534. Such an assumption is plainly belied by the fact that this Court

has on a number of occasions used various formulations of “reason to believe”

language when referring to a requirement universally acknowledged to be one of

probable cause. See, e.g., United States v. Watson, 423 U.S. 711, 714 (1976),

quoting Carroll v. United States, 267 U.S. 132, 156 (1925) (“The usual rule is

that a police officer may arrest without a warrant one believed by the officer upon

reasonable cause to have been guilty of a felony . . .” (emphasis added)); Johnson

v. United States, 333 U.S. 10, 15 (1948) (arrest without warrant valid “only . . .

for a felony of which he had reasonable cause to believe the defendant guilty”

(emphasis added)); Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978) (“The

critical element in a reasonable search is . . . that there is reasonable cause to

believe that the specific ‘things’ to be searched for and seized are located on the

property to which entry is sought” (eriphasis added)); id. at 556 n.6, quoting

9

1534. Such an assumption, however, reflects a deeply flawed

understanding of this Court’s Fourth Amendment jurispru-

dence, both before and after Payton, and of the holding of

Payton itself.

While the interests protected by a search warrant and by an

arrest warrant may differ somewhat,’ the Payton Court stressed

that where such seizures take place inside the home, the level

of justification for the entry required by the Fourth Amendment

does not differ:

The critical point is that any difference in the intru-

siveness of entries to search and entries to arrest

are merely ones of degree rather than of kind. The

two intrusions share this fundamental characteristic:

the breach of an entrance to an individual’ s home.

The Fourth Amendment protects the individual’s pri-

vacy in a variety of settings. In none is the zone of

privacy more clearly defined that when bounded by

the unambiguous physical dimensions of an indi-

vidual’s home — a zone that finds its roots in clear

and specific constitutional terms: “The right of the

people to be secure in their... houses .. . shall

not be violated.”

Payton v. New York, 445 U.S. at 589-90 (emphasis added).

Payton does not, therefore, embody a requirement of less

than probable cause to believe that the person named in the

arrest warrant is at home at the time of the entry; rather, Payton

Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 358

(1974) (“Search warrants may be issued only by a neutral and detached judicial

officer, upon a showing of probable cause — that is, reasonable grounds to believe

— that criminally related objects are in the place which the warrant authorizes to

be searched, at the time when the search is authorized to be conducted” (emphasis

added)).

*See, e.g., Arizona v. Hicks, 480 U.S. 321, 328 (1987); Steagald v. United

States, 451 U.S. at 213 n.7.

10

permits the arresting officers to make that particular probable

cause determination in the first instance, rather than requiring

additional resort to a judicial officer, if they have already

obtained the determination of a neutral magistrate that there is

probable cause to believe that an individual has committed a

crime and if they have probable cause to believe that the prem-

ises are that individual’s residence. Such broad discretion hav-

ing already been delegated to “the officer engaged in the often

competitive enterprise of ferreting out crime,” Johnson v.

United States, 333 U.S. 10, 13 (1948), the protections of the

Fourth Amendment may not be further diluted by permitting

these crucial decisions to be based on less than probable cause.

In the Payton context, the threat to the sanctity of a citizen’s

home is vastly intensified by the cumulative effect of the requi-

site two-tier decisionmaking. Even if police have probable

cause to believe that the home is the individual’s residence,

that initial determination by its very nature will often carry

with it a degree of reliability falling far short of certainty, or

even of probability, as the facts of this case well illustrate.

When this less than stringent level of justification is combined

with the discretion of the officers to decide for themselves

whether they have probable cause to believe that the individual

sought is within the premises they believe, although they do

not know, to be his home, the resulting level of justification

for the entry is already at the far reaches of that permissible

under the Fourth Amendment. The time-honored requirement

of probable cause is all that stands between a citizen and inva-

sion of every room in his home by, as here, a SWAT team

armed to the teeth with weapons and tear gas.

1]

2. The Dissenting Opinion in Payton Understood the

Majority Opinion to Have Articulated a Probable

Cause Standard.

The Payton Court had no occasion to engage in extended

discussion of the “reason to believe” requirement because, as

this Court expressly noted at the outset of its analysis, “in

neither case [was] it argued that the police lacked probable

cause to believe that the suspect was at home when they en-

tered.” Payton v. United States, 445 U.S. at 583 (emphasis

added). This language, in conjunction with the Court’s com-

prehensive analysis of the requirements of the Fourth Amend-

ment, demonstrates this Court’s opinion of “probable cause”

and “reason to believe” as synonymous expressions of the same

standard of Fourth Amendment reasonableness. '°

Certainly the Payton dissenters '' understood the Court to be

articulating a probable cause standard, an understanding the

majority opinion in no way suggested was a misreading of its

holding. See id. at 616 n.13 (White, J., dissenting) (“under

today’s discussion, the officers apparently need an extra incre-

ment of probable cause when executing an arrest warrant,

namely, grounds to believe that the suspect is within the dwell-

In People v. Payton, 45 N.Y.2d 300, 305, 380 N.E.2d 224, 225 (N.Y. Ct.

App. 1978), the New York Court of Appeals had held that:

An entry made for the purpose of effecting a felony arrest within the

home of the person to be arrested by a police officer who has entered

without permission of the owner, if based upon probable cause, is

not necessarily violative of the constitutional right to be secure against

unreasonable searches and seizures even though the arresting officer

has not obtained a warrant and there are no exigent circumstances

(emphasis added).

"' Justice White, then Justice Rehnquist, and then Chief Justice Burger.

12

ing” (emphasis added)). Justice White, speaking for all dissent-

ers, noted that he “[did] not necessarily disagree with the

Court’s discussion of the quantum of probable cause necessary

to make a valid home arrest,” id. at 616 n.13 (emphasis added).

Instead, he rested his determination that the Fourth Amendment

could be satisfied in this context without the requirement of

an arrest warrant in part upon the “requirement of probable

cause to believe that the suspect is at home,” id. at 518, and

expressed a preference for a rule that would permit law enforce-

ment officers, after knocking and announcing their presence,

to enter the home to make a daytime warrantless arrest “when

there is probable cause to believe that the person to be arrested

committed a felony and is present in the house.” Id. at 620

(emphasis added). '?

B. Subsequent Fourth Amendment Jurisprudence of This

Court Has Been Predicated Upon An Understanding Of

The Payton “Reason To Believe” Standard As Embody-

ing A Requirement of Probable Cause.

In Maryland v. Buie, 494 U.S. 325 (1990), this Court held

that police officers who have lawfully entered a home to execute

an arrest warrant may conduct a productive sweep of the prem-

ises on less than probable cause to believe “that the area to be

swept harbored an individual posing a danger to the officers

or others.” /d. at 327. An essential predicate of this holding

was the fact that the entry of the arresting officers into the

home was justified ab initio by probable cause to believe that

the person named in the warrant was within his home at the

time of the entry: “possessing an arrest warrant and probable

" See also United States v. Santana, 427 U.S. 38, 43 (1976) (White, J. concurring)

(where officers had probable cause to arrest and probable cause to believe defendant :

was in the house, arrest warrant not needed to enter house).

13

cause to believe he was in his home, the officers were entitled

to enter and to search anywhere in the house in which Buie

might have been found.” Jd. at 332-33 (emphasis added).

The Eleventh Circuit’s reasoning in this case fails to recog-

nize that the lesser standard articulated in Buie with respect to

protective sweeps — to which the Eleventh Circuit’s formula-

tion of the Payton standard bears a not insubstantial relationship

— is permissible under the Fourth Amendment only because

the presence of the officers inside the home was justified by

probable cause to believe that the object of their search —

Buie himself — was located upon the premises.'? See United

States v. Santana, 427 U.S. 38, 42 (1976) (noting that Court

had upheld in Warden v. Hayden, 387 U.S. 294 (1967), the

right of police who had probable cause to believe that an armed

robber had entered a house a few moments before to make a

warrantless entry to arrest).

This Court’s post-Payton jurisprudence has ratified the

Fourth Amendment requirement of probable cause to enter a

home to arrest and has stressed the critical fact — ignored by

the Eleventh Circuit’s opinion in this case — that even in those

limited circumstances in which the Fourth Amendment permits

law enforcement officers to forego advance submission of the

probable cause question to a neutral magistrate, this dispensa-

tion to permit the police officer on the scene, rather than the

magistrate, to make the probable cause judgment in the first

Cf. Arizona v. Hicks, 480 U.S. at 335 (O'Connor, J., dissenting) (“In short, if

police officers have a reasonable, articulable Suspicion that an object they come

across during the course of a lawful search is evidence of a crime, in my view

they may make a cursory examination of the object to verify their suspicion. If the

officers wish to go beyond such a cursory examination of the object, however, they

14

instance does not lower the level of justification required to

legitimize the police action in question. “Dispensing with the

need for a warrant is worlds apart from permitting a lesser

standard of cause for the seizure than a warrant would require.”

Arizona v. Hicks, 480 U.S. 321, 326-27 (1987) (emphasis in

original).'* This Court made this proposition quite explicit in

Arizona v. Hicks:

Although the interests protected by the Fourth

Amendment injunction against unreasonable

searches is quite different from that protected by its

injunction against unreasonable searches. . . neither

the one nor the other is of inferior worth or necessar-

ily requires only lesser protection: We have not else-

where drawn a categorical distinction between the

two insofar as concerns the degree of justification

needed to establish the reasonableness of police ac-

tion... .

“ The difference between Payton and this Court's decision in Steagald v. United

States, 451 U.S. 204 (1981), lies not in the degree of justification required to cross

the threshold of the home, but rather in who must make the determination that the

requisite degree of justification exists. In Steagald, this Court held that police

armed with a warrant to arrest A may not, in the abserce of exigent circumstances,

enter B’s house to look for him unless a neutral magistrate has first determined

that there is probable cause to believe that A will be found within B's house.

Absent the requirement of a search warrant issued by a neutral magistrate, the only

protection afforded third parties against unlawful invasions of their homes and their

privacy would be “the agent’s personal determination of probable cause,” id. at

213, to believe that the person named in the arrest warrant would be found within

the third party's home. While leaving the probable cause determination to the

arresting officer may sufficiently safeguard the arrestee’s privacy interests in his

own home, it does not suffice to permit lawful entry of a third party’s home because

an arrest warrant neither particularizes his home as the place to be searched nor

provides any judicial imprimatur for the officer's desire to invade the privacy of

that third party. That this Court concluded that advance submission of the probable

cause to search question to a neutral magistrate is required in the Steagald context

but not in the Payton context does not mean that a lower level of justification is

required to legitimize police entry into the arrestee’s own home than is required

before police may enter third party’s home to execute an arrest warrant.

— 5 sensed 9 atin tat et cho Att sed He.

an" lat Nail ott aS aoa

15

480 U.S. at 328 (emphasis added). This language reflects an

implicit recognition by this Court that Payton did not affect

the “degree of justification” required to validate an entry into

the home to seize the individual named in an arrest warrant.

An arrest warrant does no more than explicitly particularize

the object of the seizure, i.e., the person named in the warrant,

and perhaps implicitly particularize the place to be searched,

i.e., the suspect’s home. The issuance of an arrest warrant

does not, however, erode the cornerstone Fourth Amendment

imperative of probable cause to believe that the object to be

seized is inside the residence to be searched.

C. This Court Should Grant Certiorari To Restore The

“Firm Line At The Entrance To The House” Drawn By

The Fourth Amendment By Invalidating The Unprece-

dented “Exception” To The Probable Cause Require-

ment Created By The Eleventh Circuit In This Case.

Prior to the decision in this case, at least three circuits

apparently equated the Payton “reason to believe” standard

with a requirement of probable cause. See, e.g., United States

v. Curzi, 867 F.2d 36, 39 n.3 (Ist Cir. 1989) (government

conceded that entry into home could not be justified by arrest

warrant for defendant’s husband, who also resided in the home,

because agents did not have probable cause prior to the entry

to believe that the husband was inside the home); United States

v. Salvador, 740 F.2d 752, 757 (9th Cir. 1984), cert. denied,

469 U.S. 1196 (1985) (probable cause requires a “reasonable

belief . . . that the suspects have committed a crime and are

to be found in the place to be searched). Cf. United States v.

Clifford, 664 F.2d 1090, 1093 (8th Cir. 1981) (“If. . . Clifford

had a legitimate expectation of privacy in the premises, Payton

authorizes entry on the basis of the existing arrest warrant for

16

the defendant and probable cause to believe that the defendant

was within the premises (emphasis added)."

This case represents the first decision of any Court of Ap-

peals to squarely address the level of justification required by

the Payton “reason to believe” standard before law enforcement

officers may invade the sanctity of the home. As demonstrated

in the preceding section of this petition, the construction of

the Payton standard adopted by the Eleventh Circuit in this case

constitutes a profound and constitutionally untenable departure

from a long-established Fourth Amendment principle which has

at its foundation the protection of the home from unwarranted

governmental intrusion — the guarantee that a citizen’s home

will remain inviolate unless law enforcement officers have

probable cause to believe that the home contains persons or

things for which they are lawfully entitled to enter the premises

to search. The Second Circuit has already indicated in dictum its

willingness to adopt the reasoning of this case:

Although we agree with the district court’s ultimate

conclusion, we note that it applied too stringent a test

when it held that “officers may properly determine

whether they have probable cause to believe that an

apartment or house is the arrestee’s residence, and if

'' The former Fifth Circuit, in a case decided before Payton, United States v.

Woods, 560 F.2d 660, 665 (Sth Cir. 1977), stressed the congruence between “rea-

sonable belief” and “probable cause” in terms of the justification required for an

entry into a home based upon an arrest warrant for the resident:

The test is properly framed in terms of reasonable belief. Probable

cause is essentially a concept of reasonableness, but it has become a

term of art in that it must always be determined by a magistrate unless

exigent circumstances excuse a warrant. . . . Reasonable belief em-

bodies the same standard of reasonableness but allows the officer,

who had already been to the magistrate to secure an arrest warrant,

to determine that the suspect is probably within certain premises

without an additional trip to the magistrate and without exigent cir-

cumstances.

17

probable cause exists, they may enter such premises

to effect the arrest when they have a reasonable basis

to believe that the arrestee will be present (emphasis

added). As noted above, the proper inquiry is whether

there is a reasonable belief that the suspect resides

at the place to be entered to execute an arrest warrant,

and whether the officers have reason to believe that

the suspect is present. See Magluta, 44 F.3d at 1533,

1535.

United States v. Lauter, 1995 WL 351457 (2d Cir. June 12,

1995) (emphasis in original). In fact, the Lauter dictum, if

embraced as the basis for subsequent decision of the Second

Circuit — or, for that matter, of any court — threatens an

even more radical incursion upon the requirement of probable

cause than that already effected by the Eleventh Circuit in this

case, in that it would permit governmental intrusion into a

citizen’s home on less than probable cause to believe that the

home to be entered was the residence of the person named in

the arrest warrant and on less than probable cause to believe

that he was at home at the time of the entry.

CONCLUSION

The Eleventh Circuit’s construction of the Payton “reason

to believe” standard is a holding of critical constitutional di-

mension, one which opens a door to the entry of a citizen’s

home traditionally regarded as locked and barred by the Fourth

Amendment and permits the crossing of the threshold of a

citizen’s “castle” absent probable cause to believe that the

object of the search is located upon the premises at the time

of the search. As such, this case is quintessentially appropriate

to the exercise of this Court’s certiorari jurisdiction to reverse

the opinion of the Eleventh Circuit and to restore the “firm line

18

at the entrance to the house” drawn by the Fourth Amendment,

Payton v. New York, 445 U.S. at 590.

For all the foregoing reasons, petitioner prays that this Hon-

orable Court grant a Writ of Certiorari to review the decision

of the Eleventh Circuit Court of Appeals.

KIMBERLY HOMAN

SHEKETOFF & HOMAN

84 State Street

Boston, Massachusetts 02109

(617) 367-3449

Respectfully submitted,

MARTIN G. WEINBERG

OTERI, WEINBERG & LAWSON

The Siatler Building

20 Park Plaza

Suite 905

Boston, Massachusetts 02116

(617) 227-3700

Counsel of Record

Roy BLACK, P.A.

201 S. Biscayne Boulevard

Suite 1300

Miami, Florida 33131

(305) 371-6421

APPENDIX TABLE OF CONTENTS

Appendix A

United States Court of Appeals, Eleventh Circuit

Opinion, dated February 21, 1995 Al

Appendix B

United States Court of Appeals, Eleventh Circuit

Order Al8

Al

APPENDIX A

UNITED STATES of America,

Plaintiff-Appellant,

Vv.

Salvador MAGLUTA, a/k/a Sal, a/k/a

Santiago Menendez, a/k/a Angelo

Maretto, Defendant-Appellee.

| No. 93-5069.

United States Court of Appeals,

Eleventh Circuit.

Feb. 21, 1995.

Christopher Clark, Ann Hayes, Linda Collins Hertz, Asst.

U.S. Attys., Miami, FL, for appellant.

Jeffrey S. Weiner, Miami, FL, for Orlando Lorenzo.

Martin G. Weinberg, Boston, MA, for Salvador Magluta.

Appeal from the United States District Court for the Southern

District of Florida.

Before KRAVITCH and HATCHETT, Circuit Judges, and

CLARK, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

The United States government appeals the district court’s

order granting Salvador Magluta’s motion to suppress evidence

obtained by federal and state law enforcement agents after entry

A2

into a residence for the purpose of executing outstanding arrest

warrants.’ We REVERSE and REMAND.

1. Factual Background and

Procedural History

In April 1991, a federal grand jury in the Southern District

of Florida returned a 24 count indictment charging Salvador

Magluta with numerous offenses involving cocaine trafficking,

including conspiracy to import cocaine, conspiracy to possess

with intent to distribute cocaine, importation of cocaine, and

possession with intent to distribute cocaine. Orlando Lorenzo

was charged in the conspiracy counts of the indictment. Arrest

warrants were issued for Magluta and Lorenzo, and the United

States Marshals Service’s fugitive apprehension unit was as-

signed the task of locating Magluta and Lorenzo, as well as

other named suspects.’ Despite extensive investigation, the

marshals were unable to locate or apprehend Magluta and

Lorenzo until October 31, 1991, when a previously reliable

confidential source in custody provided Deputy Marshal Keith

Braynon with information regarding the location of Magluta’s

and Lorenzo’s respective residences. The confidential infor-

mant (“CT”) had obtained this information from Luis Mendez,

a co-defendant in the instant case who had been arrested less

‘The government brings this interlocutory appeal pursuant to 18 U.S.C. § 3731.

The district court granted a joint motion to suppress in favor of Salvador Magluta

and his co-defendant, Orlando Lorenzo. Although the government initially appealed

the grant of this motion as to both Lorenzo and Magluta, since the appeal was

filed, Lorenzo entered into a guilty plea and the government dismissed its appeal

as to him. Accordingly, we need not decide whether the motion to suppress was

properly granted in Lorenzo’s favor.

* Eight other individuals were also named in the indictment.

* During the previous year, marshals had sought Magluta and another co-defend-

ant, Augusto Falcon, on outstanding arrest warrants from several jurisdictions.

Testimony before the magistrate judge showed that Magluta was arrested by local

law enforcement officers in 1988, pursuant to state warrants, but that he had

disappeared from the Dade County Jail under unexplained circumstances.

A3

than a month earlier. The CI gave Braynon a map showing

the location of Magluta’s residence,‘ and informed Braynon

that Lorenzo was Magluta’s friend and drug associate, who

frequently visited Magluta’s house. The CI also reported that

there was a smaller residence on the premises occupied by

bodyguards, that Lorenzo lived south of Magluta’s residence

in an aparment building on Miami Beach, and that Mendez

had been at the residence within the past month.

On October 15, 1991, at about 6 a.M., Braynon went to

the location of the house on the map, later identified as 98

East La Gorce Circle (hereinafter “98 East La Gorce’”’), and

verified that the house was lived in. The house is located on

a private island, La Gorce Island, the sole entrance to which

is monitored by guards who operate an entry gate from a guard

shack. Braynon noted that the lawn was manicured and that

a porch light was on. A gold Honda car, a large motor home,

a white Chevrolet Astro van, and a gray Pathfinder were parked

outside of the residence. Later that morning, Braynon returned

and the marshals established a surveillance team at the entrance

to La Gorce Island. At approximately 12:20 p.m., the gold

Honda drove away; the driver, according to Braynon, resem-

bled Lorenzo. When the afternoon guard, Michael Vaccaro,

arrived at 3:00 P.M., Braynon showed him photos of Lorenzo

and Magluta. According to Braynon, Vaccaro identified

Lorenzo as a person who frequented 98 East La Gorce, and

although he could not positively identify Magluta, he noted

that a man who looked like Magluta lived at 98 East La Gorce

and drove a white Chevy Astro van. Contrary to Braynon’s

recollection, Vaccaro later testified that he had only identified

Lorenzo to Braynon, and that he did not provide any informa-

tion with respect to Magluta, the owner of the Chevy Astro van,

“The map was not available at the time of the suppression hearing, and it does

not appear that it was ever produced to the defendants.

A4

or the identity of the resident of 98 East La Gorce.* Vaccaro

testified that was not the man that he had seen driving the

white Astro van, but rather, he provided a description of the

van’s driver that did not match Magluta.

At approximately 5:00 p.M., the gold Honda returned to the

island, and Braynon, who was stationed in the guard’s shack,

thought he recognized the driver as Lorenzo. Based upon the

facts described above, Braynon and his supervisor, Deputy

Marshal Sean Conboy, decided that they had sufficient infor-

mation to conclude that fugitives named in the indictment were

present at 98 East La Gorce. Between 5:30 and 6:00 P.M. the

agents and local police approached the house in marked Miami

Beach police cruisers. Conboy stated that four men were stand-

ing in the front porch area of the house, and that upon seeing

the police cars approach, two men, including a man matching

Lorenzo’s description, entered the house. The other two men

on the porch immediately surrendered. Over a loudspeaker,

Conboy directed everyone to leave the house. Two more men

complied, but based upon the statements of detainees who had

exited the residence, the marshals believed that at least two

suspects remained inside.

After several minutes, a six-person special operations group

(SOG) team,° led by Inspector Michael Cameron, sprayed an

irritant gas, similar to tear gas, into the house. A minute later

the team entered and performed a protective sweep of the

house, which lasted five to seven minutes. During the sweep,

the team located Lorenzo, who was suffering from effects of the

gas, and escorted him from the house. Also during the sweep,

*Michael Lamonico, the morning guard, testified that he did not provide the

agents with any information regarding the occupants of the residence or any vehicles

connected to those residents. He did testify, though, that he had identified a picture

of Lorenzo for the marshals. Braynon’s supervisor, Deputy Marshal Sean Conboy

did not recall that the morning guard identified Lorenzo as a frequent visitor.

*SOG teams are the Marshals Service’s equivalent of a SWAT team.

AS

marshals observed in plain view two nylon gym bags, numer-

ous papers, telephones, a telefax machine and a floor safe. A

detainee told Conboy that another man remained in the house,

and an agent then observed that a person might have jumped

from a second story window. A search of the bushes surround-

ing the house, with the assistance of a Miami Beach police

dog, resulted in Magluta’s capture.

Simultaneously with the search of the main house, Miami

police secured the guest house and executed a protective sweep

as well. During the sweep, police discovered a box containing

stacks of currency.’ No further search occurred until Special

Agent David Borah of the Drug Enforcement Agency obtained

a search warrant. The search executed pursuant to the warrant

located fax machines, large assortments of jewelry and U.S.

currency, a suitcase with ledgers, portable phones, beepers

and an electronic rolodex.

Magluta and Lorenzo moved to suppress the evidence seized

during the above-described searches. After an evidentiary hear-

ing, the magistrate judge issued a report and recommendation

in which he found that there was probable cause to believe

that Magluta resided at 98 East La Gorce,* but that the marshals

did not have probable cause or reason to believe Magluta was

at the residence at the time the search took place. The magistrate

judge concluded that there was no evidence that Magluta was

at the property on the day of the search, or anytime within the

previous month. He opined that Lorenzo’s presence was not

dispositive as to Magluta’s presence, and the fact that Magluta

might have been connected to the Astro van was of “little import

” Miami police had to remove a deadbolted closet door and look under a suspi-

ciously raised rug in the closet to find the box of currency.

*The magistrate judge based this holding upon the information supplied to the

marshals by Mendez via the map, the identification of Lorenzo at 98 East La

Gorce, and Braynon’s testimony regarding the afternoon guard's tentative identifi-

cation of Magluta.

seit

A6

since no one had seen Magluta in the house for at least one

month,” and there was no evidence as to when Magluta last

drove the vehicle. The magistrate judge also concluded that

neither the inevitable discovery nor independent source excep-

tions applied in this case. Accordingly, he recommended that

the motion to suppress be granted. The district court accepted

the magistrate judge’s report and recommendation in its en-

tirety, and granted Magluta and Lorenzo’s joint motion to

suppress. This appeal followed.

II.

[1] The Supreme Court set the standard for entry into

residences based upon an arrest warrant in Payton v. New

York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980),

where the Court stated: “[F]or Fourth Amendment purposes,

an arrest warrant founded on probable cause implicitly carries

with it the limited authority to enter a dwelling in which the

suspect lives when there is reason to believe the suspect is

within.” Id. at 603, 100 S.Ct. at 1388 (emphasis added). Payton

thus requires a two-part inquiry: first, there must be a reason-

able belief that the location to be searched is the suspect’s

dwelling, and second, the police must have “reason to believe”

that the suspect is within the dwelling. In this case, police had

a valid arrest warrant for Magluta, and thus were privileged

to enter 98 East La Gorce if they had reason to believe it was

Magluta’s residence, and if they had reason to believe that

Magluta was home at the time of entry. As noted above, although

the magistrate judge found that the government had sufficient

information to believe that Magluta resided at 98 East La

Gorce, he held that the evidence was insufficient to establish

that Magluta was at home at the time of the entry. Therefore,

he granted the motion to suppress.”

*The magistrate judge thus bypassed defining the Payton standard by holding

that there was a sufficient quantum of evidence that 98 East La Gorce was Magluta’s

A7

The parties disagree as to the meaning of Payton’s “reason

to believe” test. Magluta argues that the Payton standard is

the functional equivalent of probable cause; the government

contends that the standard embodies a lesser degree of certainty

than probable cause.

The “reason to believe” standard was not defined in Payton,

and since Payton, neither the Supreme Court, nor the courts

of appeals have provided much illumination. See, e.g., United

States v. De Parias, 805 F.2d 1447, 1457 (11th Cir. 1986)

(applying Payton without defining “reason to believe”), cert.

denied, 482 U.S. 916, 107 S.Ct. 3189, 96 L.Ed.2d 678 (1987).

Consequently, the parties have been forced to assert somewhat

strained rationales for their respective interpretations. Magluta

noted that it was not argued in Payton that the police lacked

probable cause to believe the suspect was home, Payton, 445

U.T. at 582-83, 100 S.Ct. at 1378; and that the dissent in

Payton treated the majority opinion as if it required a showing

of probable cause that the suspect was at home. See Payton,

445 U.S. at 580-81 n.13, 100 S.Ct. at 1395 n.13 (White, J.,

dissenting). He also directs our attention to the Supreme

Court’s language in Maryland v. Buie, 494 U.S. 325, 110

S.Ct. 1093, 108 L.Ed.2d 276 (1990), in which the Court

addressed the permissible scope of a protective sweep incident

to arrest. In Buie, the Court explained that “[pjossessing an

arrest warrant and probable cause to believe he was in his

home, the officers were entitled to enter and to search anywhere

in the house in which Buie might be found.” /d. at 332-33,

110 S.Ct. at 1097 (emphasis added).

Nevertheless. the Court’s language in Buie is not dispositive,

because the Court there merely reasoned that based on the

facts of Buie the police officers’ possession of probable cause

residence to satisfy both a probable cause and a lesser “reason to believe” standard,

but that there was insufficient evidence to support the conclusion that Magluta was

at home under either standard.

A8

entitled them to enter and sweep the residence — the Court

did not and has not, ever held that probable cause is required

to enter a residence to execute an arrest warrant for the resident.

On the other hand, the government has failed to cite a single

case in which the Payton standard has been defined as embody-

ing less than probable cause. In fact, at oral argument, govern-

ment’s counsel even referred to the applicable standard as

“quasi-probable cause.” The strongest support for a lesser bur-

den than probable cause remains the text of Payton, and what

we must assume was a conscious effort on the part of the

Supreme Court in choosing the verbal formulation of “reason

to believe” over that of “probable cause.” Cf. 2 Wayne R.

LaFave, Search and Seizure § 6. 1(a) at 565, 567 (1987) (opin-

ing that standard may have been enunciated as it was in Payton

“sO as not to encourage lower courts to adopt a hardnosed

‘probable cause to believe the suspect is at home’ test,” but

still arguing that “on balance it seems preferable to insist upon

probable cause”).

Prior to Payton, this circuit’s predecessor recognized the

right to enter a residence to execute an arrest warrant. See

United States v. Woods, 560 F.2d 660, 665 (Sth Cir. 1977)

(collecting cases), cert. denied, 435 U.S. 906, 98 S.Ct. 1452,

55 L.Ed.2d 497 (1978). Like the Payton court, the former

Fifth Circuit permitted such entry upon reasonable belief. As

the Woods court summarized:

The test is properly framed in terms of reasonable

belief. Probable cause is essentially a concept of

reasonableness, but it has become a term of art in

that it must always be determined by a magistrate

unless exigent circumstances excuse a warrant... .

Reasonable belief embodies the same standards of

reasonableness but allows the officer, who has al-

ready been to the magistrate to secure an arrest war-

A9

rant, to determine that the suspect is probably within

certain premises without an additional trip to the

magistrate.

Id. (quoting United States v. Cravero, 545 F.2d 406, 421 (Sth

Cir. 1976).'° Hence, we must view the evidence in this case

in light of the recognition that probable cause itself is a doctrine

of reasonable probability and not certainty. See Hill v. Califor-

nia, 401 U.S. 797, 804, 91 S.Ct. 1106, 1110-11, 28 L.Ed.2d

484 (1971) (“{S]ufficient probability, not certainty, is the

touchstone of reasonableness under the Fourth Amendmert.

. . ."); see also United States v. Allison, 953 F.2d 1346, 1350

(11th Cir. 1992) (“Probable cause exists where the facts and

circumstances within an officer’s knowledge and of which he

had reasonably trustworthy information are sufficient to war-

rant a person of reasonable belief that an offense has been or

is being committed by the person to be arrested.”); United

States v. Gonzalez, 969 F.2d 999, 1002-03 (11th Cir. 1992)

(employing similar definition of probable cause, and noting

that observations and experiences of law enforcement agents

may be weighed in the totality of circumstances that might

create probable cause for an arrest).

[2, 3] Due to the lack of authority on point, it is difficult

to define the Payton “reason to believe” standard, or to compare

the quantum or proof the standard requires with the proof that

probable cause requires. We think it sufficient to hold that in

order for law enforcement officials to enter a residence to

execute an arrest warrant for a vesident of the premises, the

facts and circumstances within the knowledge of the law en-

forcement agents, when viewed in the totality, must warrant

a reasonable belief that the location to be searched is the sus-

°Decisions of the former Fifth Circuit rendered prior to October 1, 1981, are

circuit precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d

1206, 1209 (11th Cir. 1981) (en banc).

Al0

pect’s dwelling, and that the suspect is within the residence

at the time of entry. The magistrate judge held, and we agree,

that the evidence supported the marshals’ reasonable belief

that 98 East La Gorce was Magluta’s residence. In evaluating

this on the spot determination, as to the second Payton prong,

courts must be sensitive to common sense factors indicating

a resident’s presence. For example, officers may take into

consideration the possibility that the resident may be aware

that police are attempting to ascertain whether or not the resi-

dent is at home,'' and officers may presume that a person is

at home at certain times of the day — a presumption which

can be rebutted by contrary evidence regarding the suspect’s

known schedule.

This circuit’s case law supports this practical interpretation

of Payton. In United States v. Beck, 729 F.2d 1329, 1331-32

(11th Cir.), cert. denied, 469 U.S. 981, 105 S.Ct. 383, 83

L.Ed.2d 318 (1984), this court held that FBI officers and local

police had reason to believe that Beck was in his apartment

when the officers entered it to execute an arrest warrant. In

Beck, there were no outward signs of life in the apartment the

evening before the search or the next morning, and as the

agents had not monitored Beck’s apartment, they were not

aware of his comings and goings. Despite these evidentiary

shortcomings, the Beck court observed that Beck’s car was

parked near the home, and that it was reasonable to believe

that a person would be home sleeping at 7:30 A.M., which

'' Although LaFave argues in favor of the probable cause standard, he contends

that this standard should be applied with common sense, so that “the police need

not possess ‘special knowledge’ that the defendant is at home in order to meet the

probable cause test, for in the absence of facts tending to show that the defendant

is not at home it is reasonable to infer that he would be there. . . . [I)f the defendant's

quarters are dark and no sounds or movements can be detected within and no one

answers the door, the other facts and circumstances (e.g., nature of the crime,

crime recently committed, defendant's car parked nearby) may nonetheless support

the inference that the defendant is concealing himself therein.” See 2 Wayne R.

LaFave, Search and Seizure § 6.1(a) at 568 (1987).

~ |

All

would account for the lack of outward signs of life. Finally,

the court noted that the lack of response to the officer’s knock

and announcement did not indicate that no one was at home

“since it was reasonable to expect a fugitive to hide or flee if

possible.” /d. at 1332; see also De Parias, 805 F.2d at 1457

(holding that the district court did not clearly err by determining

that agents reasonably believed that the suspects were at home,

where the apartment manager informed agents that the De

Pariases were at home if a certain car was parked in front of

the apartment).

The former Fifth Circuit applied similar reasoning in Woods :

Although there is no indication in the record that the

officers had reason to know whether appellant would

be at his home when they went there to execute the

arrest warrant, we find it reasonable anticipation on

the officers’ part to believe that a person would be

at his place of abode, especially at 8:30 in the morn-

ing for a man not known to be working. . . .

Woods, 560 F.2d at 665. Other courts similarly have employed

a common sense approach to reviewing these determinations.

See, e.g., United States v. Terry, 702 F.2d 299, 319 (2d Cir.)

(sufficient evidence to believe Terry was at the residence where

a 12-year-old boy outside of the residence, wearing a shirt

with the name “Terry” on it, stated that his father and mother

lived at the residence and did not indicate that his father was

not at home, and further, at 8:45 a.m. on a Sunday morning

it would be reasonable to assume Terry was at home), cert.

denied, 461 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304 (1983)

and 464 U.S. 992, 104 S.Ct. 482, 78 L.Ed.2d 680 (1983);

United States v. Litteral, 910 F.2d 547, 553-54 (9th Cir. 1990)

(belief reasonable when informant told agents that if Litteral’s

car was at the property, he would be there); United States v.

Al2

Morehead, 959 F.2d 1489, 1496 (10th Cir. 1992) (officers

knew that the person resided at the house, and the presence

of a car in the carport and a truck in front of the house provided

reason to believe that he was on the premises). reh’g en banc

sub nom., United States v. Hill, 971 F.2d 1462 (10th Cir.

1992) (en banc) (affirmed on other grounds).

If.

Having set forth the appropriate inquiry under Payton, we

must determine the proper standard of review. The parties

dispute the level of deference this court should accord the

magistrate judge’s determination that the police lacked a suf-

ficient basis for concluding that Magluta was at home at the

time of the entry in 98 East La Gorce.'”

[4] Because rulings on motions to suppress involve mixed

questions of fact and law, we review the district court’s factual

findings for clear error, and its applications of the law to the

facts de novo. United States v. Ramos, 12 F.3d 1019, 1022

(11th Cir. 1994); United States v. Diaz-Lizaraza, 981 F.2d

1216, 1220 (11th Cir. 1993). Further, when considering a

ruling on a motion to suppress, all facts are construed in the

light most favorable to the prevailing party below. United

States v. Behety, 32 F.3d 503, 510 (11th Cir. 1994).

[5] The mere incantation of this oft-repeated standard does

not end our inquiry; we must decide whether the magistrate |

judge’s holding that the police did not have reason to believe

that Magluta was home at the time of the marshals’ entry )

should be treated as a factual finding reviewed for clear error, )

as Magluta urges, or as a legal conclusion reviewed de novo,

as the government requests. In framing this inquiry, we note

that the magistrate judge did not conclude that these particular

" As explained above, the magistrate judge’s report and recommendation was

“ratified, affirmed and approved in its entirety” by the district court.

Al3

U.S. marshals did not believe that Magluta was home; such

a conclusion would clearly involve evaluating the reliability of

the marshals’ testimony to determine whether they did indeed

possess such a subjective belief. Rather, the magistrate judge

weighed the factual evidence and engaged in an objective

inquiry as to whether the facts at the time of the entry should

have given the marshals “reason to believe” that Magluta was

at home.

In United States v. Tobin, 923 F.2d 1506 (11th Cir.) (en

banc), cert. denied, 502 U.S. 907, 112 S.Ct. 299, 116 L.Ed.2d

243 (1991), this court addressed the warrantless search of a

residence based upon a combination of probable cause and

exigent circumstances. Like the execution of the arrest warrant

here, the probable cause determination in cases such as Tobin

is made, in the first instance, by the police officers on the

scene, not by a neutral and detached magistrate. In Tobin, the

court unequivocally stated: “The question of what amounts to

‘probable cause is purely a question of law and is subject to

plenary review by this court.’” Jd. at 1510 (quoting United

States v. Hurtado, 779 F.2d 1467, 1477 (11th Cir. 1985));

see also Allison, 953 F.2d at 1349-51 (reviewing de novo DEA

agents’ determination that they possessed probable cause to

arrest suspect). Tobin thus removed any doubt as to the standard

of review for an officer’s probable cause determination.'? We

can divine no rational reason for applying a different standard

of review for the probable cause determinations officers made

on the scene in Tobin and Allison, and the determination the

law enforcement agents made on the scene in this case. We

therefore hold that the magistrate judge’s conclusion that the

marshals did not have reason to believe that Magluta was at

" Magluta directs our attention to United States v. Edmondson, 791 F.2d 1512,

1515 (11th Cir. 1986), in which a panel of this court upheld the clearly erroneous

standard of review to a district court's finding that FBI agents possessed probable

cause for arresting a suspect. However, it is unlikely that the Edmondson court's

application of the clearly erroneous standard survives Tobin.

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home, was a legal determination and not a factual finding.

Thus, we will review de novo the magistrate judge’s holding,

adopted in full by the district court, that the police did not

have reason to believe that Magluta was at home at the time

of the entry.'* See Cumbie v. Singletary, 991 F.2d 715, 719

(11th Cir.), cert. denied, _. U.S. ___., 114 S.Ct. 650, 126

L.Ed.2d 608 (1993) (magistrate judge’s conclusions of law as

adopted by district court reviewed de novo).

IV.

[6] The evidence before the magistrate judge included

Braynon’s testimony that: (1) information from Luis Mendez,

a co-defendant in the instant case, via a confidential informant,

described Lorenzo as Magluta’s friend and drug associate, and

as a frequent visitor to the residence; (2) the afternoon guard

identified Lorenzo as a person who frequented the residence;

(3) during his early morning drive-through, Braynon saw a

gold Honda, a white Astro van, and other vehicles parked

outside of the residence; (4) the lawn was manicured and a

porch light was on when he drove by; and (5) the afternoon

guard said that a photograph of Magluta resembled the home

renter and that the person who resembled the man in the photo

drove a white Astro van. There was also evidence that: the

white Astro van did not depart during the entire day; the gold

Honda left the island at approximately 12:30 p.m. with a driver

resembling Lorenzo, and returned at approximately 5:30 P.M.

There are cases involving motions to suppress that turn on the resolution of

narrow disputed factual findings, which are properly reviewed for clear error. See,

¢.g., United States v. Cure, 996 F.2d 1136, 1137-38 (11th Cir. 1993) (stop of car

not pretextual due to factual finding that officer stopped vehicle because it was

driving without headlights), cert. denied, _. U.S. ___, 114 S.Ct. 1075, 127

L.Ed.2d 393 (1994). In our view, this case does not present such a situation.

"In De Parias, 805 F.2d at 1457, this court reviewed the district court's deter-

mination that police had reason to believe the suspect was at home under the clearly

erroneous standard; the De Parias court, however, did not elaborate on why it felt

that the clear error standard was appropriate in that case. In light of Tobin, which

was decided en banc, subsequent to De Parias, we feel compelled to apply a

different standard of review than the De Parias panel.

.

a

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driven by a man positively identified as Lorenzo; and the

Honda was then seen parked at 98 East La Gorce.

The most important dispute in the evidence arises from the

testimony of Vaccaro, the afternoon guard, that he did not

identify the photograph of Magluta as being the resident of

the premises, and that he did not relate to Braynon any connec-

tion between the white Astro van and Magluta. To the contrary,

Vaccaro described the driver of the white van and testified

that Magluta did not resemble the driver. '*

A review of the evidence available to the marshals at the

time of the entry into 98 East La Gorce, viewed in the totality

of the circumstances, leads us to conclude that the facts sup-

ported the marshals’ reasonable belief that Magluta was at

home at the time of the entry — despite possible inferences

to the contrary."”

First, it is uncontroverted that Lorenzo was a frequent visitor

to the residence, and there is no doubt that Lorenzo was at

“The government argues that the magistrate judge's finding that there was

probable cause to believe that Magluta resided in the house, based in part on

Braynon’s testimony, represents an implicit determination by the magistrate judge

that Braynon was more credible than the guard. Although credibility determinations

are for the factfinder and should not be tampered with on appeal, see United States

v. Copeland, 20 F.3d 412, 413 (11th Cir. 1994), the fact that the magistrate judge

relied on Braynon’s testimony to the extent that it supported the notion that Magluta

resided at 98 East La Gorce, does not, without more, indicate that the magistrate

judge fully discredited the afternoon guard's testimony. Accordingly, Braynon’s

testimony must be weighed in the Payton analysis, taking this dispute into considera-

tion

" For example, Magluta asserts that the time of day the entry occurred, around

6:00 P.M., does not readily support the conclusion that Magluta was at home, as

it did in Beck, Terry and Woods, which involved early morning raids; the actual

source of information in this case was Mendez, a man who was not known to be

reliable; little information was given about Magluta’s current comings and goings;

Braynon’s drive-through only proved that someone lived at the residence; and

ownership of the vehicles was not ascertained. Also, evidence was presented that

the morning guard did not recognize Magluta’s photo at all, neither guard was

asked when Magluta was last seen, and even by Braynon’s own testimony, the

afternoon guard only saw a resemblance between the photo and the occupant of

98 East La Gorce.

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the home at the time of entry; he was positively identified

returning to the island, and his vehicle was spotted outside the

residence. Moreover, the magistrate judge held that the evi-

dence supported the conclusion that Magluta resided at 98 East

La Gorce. It is reasonable and logical for the marshals to have

inferred that Lorenzo was at 98 East La Gorce visiting the

resident of the premises, Magluta — especially as the two men

were friends and associates. The presence of a visitor at a

residence supports the reasonable conclusion that the resident

is at home.

Other evidence involves the connection of Magluta to the

white Chevrolet Astro van. The presence of a vehicle connected

to a suspect is sufficient to create the inference that the suspect

is at home. See Beck, 729 F.2d at 1331-32; De Parias, 805

F.2d at 1457; Litteral, 910 F.2d at 553-54. It is undisputed

that the van did not depart from the premises during the entire

period of surveillance. Because the magistrate judge did not

discredit Braynon’s testimony concerning the van to Magluta,

the presence of the van contributes to the reasonableness of

the marshals’ belief that Magluta was at home.

There was also evidence that the residence was lived in: the

lawn was manicured and a porch light was on during Braynon’s

drive-through. While this in and of itself would not demonstrate

that Magluta was at home at the time of entry, it is fair to

consider this fact, as there was no indication that Magluta

departed, such as for work or the like.

Finally, the officers were entitled to consider that Magluta

was a fugitive from justice, wanted on a 24 count drug traffick-

ing indictment, who might have been concealing his presence.

This could explain why the marshals never saw Magluta during

their observation, and why he might not have been spotted

previously. Hence, the lack of direct evidence that Magluta

had been seen that day does not eviscerate the marshals’ reason-

able conclusion that he was at home.

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Neither Payton nor this court’s Fourth Amendment jurispru-

dence requires law enforcement officers to be absolutely certain

that a suspect is at home before entering a residence to execute

an arrest warrant. Accordingly, we hold that the evidence

available to the marshals at the time they entered the residence

to execute the arrest warrants reasonably supported the conclu-

sion that Magluta was at home at that time.

[7, 8] Once the marshals possessed this valid justification

to enter the residence they were entitled, pursuant to Maryland

v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276

(1990), to engage in a protective sweep of the premises. Any

evidence discovered in plain view during the sweep was pro-

perly used to secure a search warrant for the premises. Cf.

Tobin, 932 F.2d at 1513 (evidence seen during protective

sweep may be seized).

Based upon the foregoing discussion, we REVERSE the

district court’s order granting Magluta’s motion to suppress

and REMAND for proceedings consistent with this opinion. '*

REVERSED and REMANDED.

'* Because we reverse the district court’s grant of the motion to suppress on the

grounds discussed above, it is unnecessary for us to determine whether the district

court erred by precluding the government from presenting evidence related to the

applicability of the inevitable discovery and independent source doctrines, and by

holding that these exceptions do not apply to this case.

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APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 93-5069

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

Vv.

SALVADOR MAGLUTA, a/k/a Sal,

a/k/a Santiago Menendez, a/k/a

Angelo Maretto,

Defendant- Appellee.

On Appeal from the United States District Court for the

Southern District of Florida

Before: KRAVITCH and HATCHETT, Circuit Judges, and

CLARK, Senior Circuit Judge.

PER CURIAM:

(X) The Petition(s) for Rehearing are DENIED and no

member of this panel nor other Judge in regular active service

on the Court having requested that the Court be polled on

rehearing en banc (Rule 35, Federal Rules of Appellate Proce-

dure; Eleventh Circuit Rule 35-5), the Suggestions(s) of Re-

hearing En Banc are DENIED.

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( ) The Petition(s) for Rehearing are DENIED and the Court

having been polled at the request of one of the members of

the Court and a majority of the Circuit Judges who are in

regular active service not having voted in favor of it (Rule 35,

Federal Rules of Appellate Procedure; Eleventh Circuit Rule

35-5), the Suggestion(s) of Rehearing En Banc are also DE-

NIED.

( ) Amember of the Court in active service having requested

a poll on the reconsideration of this cause en banc, and a

majority of the judges in active service not having voted in

favor of it, Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

UNITED STATES CIRCUIT JUDGE