Do Police Need Probable Cause to Enter a Home to Execute an Arrest Warrant?

Last week a divided panel of the U.S. Court of Appeals for the Sixth Circuit handed down an interesting opinion in U.S. v. Hardin, concerning whether police may enter a residence to execute an arrest warrant need to have probable cause to believe the suspect is inside, or is "reason to believe" sufficient? In Payton v. New York (1980), the U.S. Supreme Court held that "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." In an opinion by Judge Moore (joined by Judge Cole), the court nonetheless concluded it was an "open question" in the Sixth Circuit whether a simple "reason to believe" was actually sufficient, or whether probable cause was actually required, and further concluded answering the question was unnecessary to exclude the evidence obtained from the search of the suspect's apartment. The court also concluded that an apartment manager becomes an agent of the government when asked to enter an apartment to verify the suspects.

Judge Batchelder wrote a vigorous and lengthy dissent, arguing there was no basis to exclude the evidence obtained from the suspect's apartment. Judge Batchelder argued that Circuit precedent clearly established that Payton only requires a "lesser reasonable belief standard" in such circumstances. Judge Batchelder further argued that consent for police to enter a residence can be obtained through deceptive means, and that it was wrong to treat assuming the apartment manager was an agent of the government when he went into Hardin's residence to confirm he was there should not invalidate the search.

I disagree with the majority's treatment of United States v. Pruitt, 458 F.3d 477, 482 (6th Cir. 2007). By ignoring Pruitt's clear reasoning and plain language, and instead conducting a de novo reconsideration of Pruitt's facts in an effort to satisfy its preferred (alternative) version of the law, the majority has effectively circumvented Pruitt's precedential effect. But, in doing so, the majority has also nullified Pruitt's holding (i.e., recast it as "dicta") and supplanted Pruitt's majority opinion with its concurring opinion. This is not the proper role for a panel of this court. Moreover, by authorizing this tactic, this opinion sets a troublesome precedent.

While I recognize that, under this new precedent, the possibility now exists that the analysis that follows might be resurrected by a future panel — i.e., some future panel could employ the majority's device and reconsider the decisions in this case (regarding the entry, the ruse, or the remedy), find that it prefers my view of these issues, and deem the majority's purported holdings unnecessary to the outcome and, hence, dicta — I take no comfort in such a possibility. With this opinion, the majority has untethered the law from its foundations and now allows for every decision to be ad hoc, limited only by the ingenuity of some future panel.

[Note: Link fixed now.] [Note2: Post edited to correct an error.]

Can you link to the opinion?
9.1.2008 11:44pm
Ron Mexico (mail):
It seems to be publicly accessible in PDF form from FindLaw:
9.2.2008 12:00am

I'm no expert in 4A law but it seems to me that when the officers sent (emphasis in the original) the manager to do a task for them, he was acting as a government agent.
9.2.2008 12:04am
s/GIFY/GIYF/g myLast > myLast_corrected
9.2.2008 12:04am
that it was wrong to treat the apartment manager as an agent of the government when he went into Hardin's residence to confirm he was there.

This is just a nit, but actually Judge Batchelder is pretty timid on this point (and rightly so). Batchelder bases her conclusion on the fact finding, and then writes, "I
concede that it is a close question and I do find the majority's reasoning compelling on this issue." Without getting into all the issues here, I think it's pretty obvious that the apartment manager was an agent of the government.
9.2.2008 12:17am
Ron Mexico (mail):
Going on the premise that the apartment manager was *not* a government agent (contrary to the finding in this case), is it quite alright for a private individual to barge in to a residence (he didn't knock or ask permission before entering) on a false pretext with the actual purpose of snooping on the occupants? I admit ignorance of where exactly the rights of tenants intersect with the rights of landowners in this respect. Alone, this might create some sort of civil cause of action for violation of privacy, but then is it permissible for the government to induce a private individual to commit an illegal/wrongful act? If the answer to both those questions is "no" then asserting that the apartment manager was not a government agent would seem to be self-defeating.
9.2.2008 12:22am
It seems to me there ought to be a difference between "Can they enter the apartment" and "If they enter the apartment and find X other than the person, is it admissible in court?"

I would answer yes to the first and no to the second, and trust in the fact that if they don't have much else on the person entering the apartment without a search warrant will scotch the best remaining source of evidence to restrain cops from willy-nilly entering.
9.2.2008 12:34am
Ron Mexico (mail):

I disagree that there ought to be a difference between authorization to seize a suspect in a residence and authorization to use evidence obtained at the residence against the person sought (I would be more sympathetic to your reasoning if the seized evidence were against a third-party, which would only put me in agreement with Steagald v. United States). While I also disagree with the Supreme Court's recent trend of declining to suppress evidence in response to government misconduct, I agree with them that suppression is an "extraordinary remedy" that should only be used in cases of actual misconduct. Presumably in a case where they can enter the apartment, there has been no misconduct, and thus nothing to override the public interest in justice that is thwarted when good evidence is denied admissibility. Using suppression merely to deter the government from "willy-nilly entering" would, I think, apply it too routinely and tactically.
9.2.2008 1:11am
John Burgess (mail) (www):
While there are some differences among state laws, landlords usually and expressly reserve the right to enter apartments unannounced. Entry may be limited to looking for a problem with plumbing or the like; it may be wide open. Landlords have an interest in making sure that their properties are being used safely and legally.

Even boilerplate leases, the one's you buy ready to fill in the blanks from Office Depot, have language to this effect.

Landlords are also not particularly happy when tenants are running meth labs or prostitution rings either. Those drive away good tenants and can present a physical threat to life and property.

Since landlords (or their agents) generally have this private right as owners of the property, I don't really see a 4A violation, even if a particular look into an apartment was suggested by the state.
9.2.2008 1:15am

It seems to me there ought to be a difference between "Can they enter the apartment" and "If they enter the apartment and find X other than the person, is it admissible in court

it may seem to you that would be good, but that's not the way the law works. nor has it. ever.

if cops (myself included) have a lawful right to be at place X, then anything they see is lawfully admissible.

i'm not going to get into all the nitty gritty details, but that's plain view doctrine in a nutshell.

that assumes that they act within scope. iow, if they have a warrant to enter a place and search for person X, they cannot look in spaces where that person could not be (iow, a closed lunchbox sized container, etc.).

then there's standing. even if the police do not have a lawful right to be at a given place, if they observe stuff related to a person who has no standing to protest their presence there, then it's still admissible.

it would be pretty ridiculous to say that a cop can enter residence X, but anything he sees other than the snuffalufagus mentioned in the warrant would be inadmissible. that would be so absurd that i don't even think a defense attorney would make that argument :)
9.2.2008 1:22am
Bill Poser (mail) (www):

s/GIFY/GIYF/g myLast > myLast_corrected


I wonder how many people understand this. We Unix people are still a minority, I fear. (By the way, the g isn't necessary.)
9.2.2008 1:22am
Ron Mexico (mail):
John Burgess,

You seem to have resolved my earlier question about the legality of the landlord's entry. I wasn't aware of the routine inclusion of language such as this, but who am I to deny lessors and lessees the freedom to contract? It does make me glad I'm not a tenant, because the thought of someone having such a universal claim on entry to my abode doesn't sit well. It's the kind of thing that would be lurking in the back of my mind making me uncomfortable. "Are you enjoying those private consensual relations, Mr. Mexico? Little do you know that at any time I could choose to make myself privy!"
9.2.2008 1:24am
Sixth Circuit watcher:
In an opinion by Judge Moore (joined by Judge Cole), the court nonetheless concluded it was an "open question" ... and further concluded answering the question was unnecessary ....

Ah, but now Judge Moore has created a "question" where there was none -- in a case where the "question" itself was irrelevant and should not have been raised. Eventually she will get an opportunity to "answer" her own question, undoubtedly citing this case and claiming that "the court has raised doubts about this issue before." This is how activism works on the Sixth.
9.2.2008 1:29am
This is how activism works on the Sixth.

Well, really only *one* of the ways. ;-) But yeah, I thought that passage was odd, too. Maybe just a law clerk who really thought the issue was cool?
9.2.2008 1:53am
vinnie (mail):
This guy had to report to a PO on a schedule. The PO should have taken him in for questioning and that would have been the end of it. Taking a gun to a PO visit is a whole new level of stupid. Better ways were obvious.
9.2.2008 2:15am
Sixth Circuit watcher:
OK, unfortunately, this was probably not a random sentence from a clerk. I have seen this pattern before, from this same judge. It is a 3-step process:

1. Note an "open question," even though (a) it does not need to be answered to resolve the case, and (b) the prior precedent is clear (and the case law says the answer is "X"). Claim that the issue is ambiguous and that the question will need to be answered at some point.

2. Cite the case in point (1), claiming that "the court" has recognized the need to answer this "open question." Say that there is no need to decide the issue here, but that we think the answer is "Y" instead of "X."

3. Cite the case in point (2), for the proposition that the answer is "Y." Congratulations, you have now changed the law.
9.2.2008 3:07am
J. Aldridge:
This is what happens when jurisprudence is created by 6-year-olds pretending to interprete the constitution.
9.2.2008 7:13am
Pregnat Christian Teenager from Alaska:
Don't we have enough of recess appointments to settle any civil rights case our way?
9.2.2008 8:40am
Jonathan H. Adler (mail) (www):
Orin --

Thanks for the correction. I've edited the post accordingly.

9.2.2008 9:28am
Gabriel McCall (mail):
With this opinion, the majority has untethered the law from its foundations and now allows for every decision to be ad hoc, limited only by the ingenuity of some future panel.

It seems a bit self-important for the judiciary to cast stare decisis as the entire "foundations" of the law. Isn't the law supposed to be written by the legislature? Isn't that what "separation of powers" means? Even if, heaven forbid, some court fails to pay adequate deference to what some other court did, there is still theoretically a statute to refer to. And if the statute is insufficiently clear, maybe that ought to be the legislature's job to fix, and not the judiciary's.
9.2.2008 10:05am
Sixth Circuit Watcher,

Any chance you have cites to some earlier examples? That would be an interesting blog post, I think.
9.2.2008 2:20pm
kietharch (mail):
In Seattle I, as a landlord, have an unrestricted right to enter an apartment in an "emergency". If the tenant were a wanted felon I think I would have the right to open the apartment door to authorities with an arrest warrant. If it were the IRS I might have to think a minute.

The counterproductive perversity of the restrictions on evidence such as the case above is disturbing to those of us who pay the taxes for both police and courts (and, frequently, defense attorneys). I cannot even guess at the motivation for the majority in this instance. 4th Amendment precedent has created a monster.
9.2.2008 2:33pm
What's this - a current VC post that mentions neither Palin nor Obama?

The majority opinion is a mess. First, it focuses on an issue that is utterly beside the point - yes, the manager might be an "agent" for analytical purposes, as he's acting pursuant to police instructions in furtherence of the investigation. That's not terribly relevant. The police could have directly sent an officer dressed as a maintenance man to ring the doorbell and ask for consent to enter and check the pipes. It's hornbook law that consent to enter needs to be voluntary under the totality of the circumstances, but it can be obtained under pretext. That's the Constitutional basis for all sorts of undercover infiltration investigations.

Until I read this case, I thought the arrest warrant entry standard was settled. Here's how it works (except apparently in the Sixth Circuit): If, per Payton, the police have a reasonable basis to believe the target of the arrest warrant is present at a particular premises, they are permitted to enter for the sole purpose of effectuating the arrest. Upon arrest, the police may only do a limited Buie protective sweep, but can seize evidence incriminating to the arrestee that is in plain view within the scope of a proper sweep. If, however, the evidence implicates a third party with a reasonable expectation of privacy under Steagald, the police should merely secure the premises and go back to the magistrate for a warrant to search and seize the evidence. The police observations during the legal arrest and protective sweep may be relied upon in the probable cause finding for the search warrant.

The majority here turned the law on its head. If I were clever defense counsel as opposed to a mere pinhead, I might try to argue that Hardin stands for the proposition that only if an agent lawfully enters a dwelling independent of subterfuge, can anything that agent observes be used to establish probable cause for anything. Which would gut the ability to use a lot of undercover techniques - for example an agent could not go into a house falsely posing as a drug purchaser, observe drugs on the premises, and use his observations to establish probable cause.

I'd like to think the majority opinion is worthy of a cert grant and reversal, but it may not be given the opinion's dancing around the most interesting Constitutional issue (is entry properly made upon probable cause or reasonable basis). At least the government should consider petitioning for en banc rehearing, which may stand a better chance given the way the panel disregarded and effectively nullified existing Circuit precedent.
9.2.2008 4:46pm
I wonder what Randy Weaver would think of this case.
9.2.2008 5:01pm
Sixth Circuit watcher:
OK, I don't have examples offhand, but I'll see if I can find some cites for you. I am sure this pattern has been used to change the standard of review in certain circumstances (always toward de novo, i.e., the standard that gives the judge the most power). It sounds boring, but it can have significant practical effects.
9.2.2008 6:45pm
David Schwartz (mail):
Zippypinhead: Surely you're not arguing that police can use any pretense to enter the premises? If so, wouldn't that make the point of obtaining consent irrelevant? And worse, if people stop refusing to 'consent' to let people in for fear of police and pretense, what happens to public safety when the police really do need to get in for something that falls just short of exigent circumstances?

The Fourth Amendment calls for reasonableness. Pretending to be interested in buying drugs or guns to get into the home of a suspected gun or drug seller seems reasonable. For one thing, there's no societal harm if people stop letting those interested in buying illegal goods into their home. In contrast, pretending to be entering to investigate a water leak seems unreasonable, and there's obvious harm if people start saying "no" to such requests for admission.

In any event, there was no consent in this case. The landlord let himself in. And he did so because the police asked him to.

There is a boundary between reasonable and unreasonable pretense. Pretense that only resonates with criminals tends to be reasonable ("I'm here for the drugs" "I'm the getaway driver" "I kill people for money"). There is no societal harm in people fearing these pretenses. They don't make a rational person fear for his safety if he refuses.

Pretense that would tend to make a law-abiding citizen feel compelled to admit someone for fear of their own safety tends to be unreasonable ("We suspect a violent criminal is hiding in your basement" "Our equipment detects a poisonous gas" "We are evacuating your area"). These do cause societal harm if people suspect pretense in these case and hesitate to cooperate. These do make people fearful and so prevent them from providing anything resembling voluntary consent.

(That said, I largely agree with the dissent. And I think the dissent and the majority largely agreed on this issue.)
9.2.2008 8:52pm
Zippypinhead: Surely you're not arguing that police can use any pretense to enter the premises? If so, wouldn't that make the point of obtaining consent irrelevant?
Actually, yes, as long as the pretense results in voluntary consent to enter. It has been clear since at least since the Supreme Court's decisions in Hoffa v. United States and Lewis v. United States in 1966 that it's permissible for an informant or undercover agent to obtain consent to enter premises under a pretext. The authorities can then use what the agent sees or hears to establish probable cause. Why? Because as the Supreme Court later explained in Schneckloth v. Bustamonte, consent for Fourth Amendment purposes need only be voluntary under the totality of the circumstances. Unlike, for example, Sixth Amendment waivers of rights, the consent does not also have to be "knowing and intelligent." For that matter, the state doesn't even have to prove the defendant was actually on notice he could refuse to consent, provided the consent wasn't obtained through duress or coercion (your hypotheticals "our equipment detects a poisonous gas" and "we are evacuating your area" may amount to duress, since a reasonable person would never protect their privacy interest by saying no). So the courts generally recognize that it is OK for undercover agents to show up under a pretext (e.g., dressed as a deliveryman, maintenance person, drug purchaser, or whatever), and as long as they're voluntarily admitted qua deliveryman, maintenance person, or customer they can look and listen, and use what they observe. They can't exceed the scope of the consent by ransacking the place or seizing items they see, but they can use the fact they saw something to establish probable cause for a subsequent seizure by warrant.

There are many thousands of folks doing time in penetentiaries today because they had misplaced faith in an undercover agent that they invited into their private space.

On the facts here, one could dispute the characterization of what happened as the landlord just letting himself in (although even that might have been OK depending what the lease terms provided). Rather, the manager opened the door, stepped in, announced himself, and asked for permission to check for a leak. The defendant gave permission (at the instruction the lessee who was on the phone). The court's statement of facts say:
Hardin stated that the manager "said there is a water leak upstairs in the upstairs apartment. Is it all right if I come in and check your bathroom?" and that he related this information to [the lessee]. In response, she stated "yes, I guess," and Hardin told the manager he could look at the bathroom. After checking the bathroom, the manager stood in the hallway outside the bedroom, looked in, and asked Hardin if he had heard any water running. The apartment manager returned to the officers and told them that "the guy you are looking for is back in the back bedroom on the right laying on the bed talking on the cell phone." [record citations omitted].
Now it would have been cleaner if the manager had knocked and been affirmatively let in rather than just opening the door himself, but on a "totality of the circumstances" basis, there's certainly a colorable argument that consent to enter was voluntarily given.

Incidentally, fact patterns like this tend to show up on law school Constitutional Criminal Procedure final exams. Change the facts slightly and both the legal analysis and ultimate outcome may differ greatly.
9.3.2008 2:28pm
David Schwartz (mail):
zippypinhead: This was a case where there was clearly no consent to enter. There is no colorable argument that consent to enter was voluntarily given since no conversation of any kind took place until after entry was achieved. There was no "invitation into private space" here, there was an intrusion.

And no, it's not okay no matter what the lease terms provide. Using the ability to enter for maintenance purposes given in the lease while acting as an agent for law enforcement is clearly unreasonable.

Or do you think the police can ask a landlord to sneak in at night and take photographs of a house if the lease says he can enter?

When the landlord does specifically what the police asked him to do, he is acting as an agent of the police. He cannot do anything the police cannot do. He can knock and ask to be let in, using his persona as landlord, because the police can do that. But he can't let himself in, because the police can't do that.
9.3.2008 5:18pm

I'm happy to concede the apartment manager was acting as an agent of the police here. I just don't think it matters. A cop could have dressed up as a maintenance person, knocked on the door and asked to check the pipes. Yes, here the manager opened the door with his master key and probably stepped inside before asking to check for leaks, which complicates the analysis -- somewhat. Although I suspect on a more fully developed record it would come out that this is the manager's SOP for apartment maintenance entries. On balance I'd still argue that the verbal consent to come in and check the bathroom that was given meets the Constitutional test. But I'll concede that reasonable people could differ. That's why this sort of fact pattern makes such good law school exam fodder.

If the manager hadn't used his master key but waited for the door to be opened, there would be no issue. If the manager had opened the door with the master key before the cops arrived to do some routine maintenance and then told the cops "the guy is in the bedroom," there would be no issue.

The lesson: If you're hiding out in your girlfriend's apartment, keep the security chain on the door and don't let anybody in. Just like if you're hiding contraband in a residence, don't let anyone see it -- even if they're a legit civilian they might rat you out later. Or they might be an informant or an undercover agent. You assume the risk whenever you voluntarily let someone into your private space that they're going to blab about what they see or hear.

Incidentally, you ask:
"Or do you think the police can ask a landlord to sneak in at night and take photographs of a house if the lease says he can enter?"
That's not what happened here. The cops would generally get a "sneak and peek" warrrant and do your hypothetical nighttime surveil job themselves.
9.3.2008 5:49pm
David Schwartz (mail):
zippypinhead: I don't think we disagree over very much. My question at the end about the landlord sneaking in was over whether you felt the police could ask the landlord to do anything he could do himself, and the answer has got to be no. Otherwise, you would have to accept that nighttime surveil job if the landlord could legally come in at night to check for a leaking pipe.

If the police had dressed up as a maintenance man and asked to come in to check the pipes, it's quite possible he would have said "no". In that case, they would have been asking for his voluntary consent, albeit with a ruse.

But that's not what they did in this case, even if the landlord had asked for permission. They used the landlord's special right of access for maintenance to effect surveillance, and that's precisely what I'm saying they can't do.

This isn't a great fact pattern for analyzing these as pure issues though. Several issues are mixed together.

But this is a case where the police were clearly wrong. The landlord entered without permission. Nobody can argue that this was an invitation into a private space, it was an intrusion at the request of the state.
9.3.2008 6:54pm
[I keep returning to this thread because it's one of the few active ones on VC that hasn't erupted into an all-out flame war over Palin, Obama, et al.]

David, you're right this isn't a great fact pattern for a clean answer. That's why, if it was dirtied up just a bit more, it would make a decent law school exam hypothetical. I suspect we agree on the law, but we're interpreting the known facts differently. My spin/argument/assumptions about the facts, from the opinion:

1. Manager opened the door with the master key. [key missing fact filled in]: I assume he didn't barge right in, because "Hardin stated that the manager "said there is a water leak upstairs in the upstairs apartment. Is it all right if I come in and check your bathroom?""

2. Hardin consented: "Hardin told the manager he could look at the bathroom."

3. [key missing fact #2] Further supporting the hypothesis that the manager didn't barge in: Apparently just looking in the bathroom didn't permit the manager to ID the defendant for the police, because "[a]fter checking the bathroom, the manager stood in the hallway outside the bedroom, looked in, and asked Hardin if he had heard any water running." The defendant presumably hadn't shut the bedroom door for privacy, and had at least a short, consensual conversation with the manager.

Roll these together (with my earlier analysis), and it appears the defendant voluntarily admitted the manager and permitted the manager to ID him. Or at least that's the way I'd argue the facts if I were the AUSA.

Your mileage may differ, of course... And that's why they call the most fun part of the appellate process "oral argument."
9.3.2008 7:33pm
David Schwartz (mail):
Okay, let's assume Hardin verbally consented to the landlord's entry. The question is then, could Hardin have refused consent, or did his contract require him to consent? If he could not have refused consent to the landlord, how can you argue his consent was voluntary?

In this case, the police used the landlord's contractual right of entry to effect their own entry. That's precisely what they can't do.

If the police had dressed up as their own maintenance man and attempted to obtain entry without using the landlord's right of entry, this would be a different case.

I tend to find all the ruses with negative social consequences to be unreasonable. This was one of those ruses. We don't want people to feel completely free to say "no" when their landlords ask to come in to check for maintenance issues. Yet this is precisely what we must argue people are totally free to do in order to consider this voluntary. In fact, most contracts do *not* leave tenants free to refuse entry to their landlords if he claims there is a maintenance issue.
9.4.2008 3:28pm
Another Sixth Circuit Watcher (mail):
Sixth Circuit Watcher -- you're totally full of it. The conservative judges on the 6th are the real activists.

Indeed, if you read this case you'd recognize that's what happened here. In Pruitt, Judge McKeague purported to settle this question &held that Payton set forth a lower standard (despite referencing probable cause at several points, and despite the dissent in Payton's description of the majority decision as involving a new "arrest warrant + PC to believe inside the residence" standard). But, as the majority here explains, the facts in Pruitt clearly did not require picking any standard because the officers in Pruitt had a ton of information to support their belief that the suspect was inside. As the majority opinion notes, in identical circumstances, other circuits have not actively reached out &purported to "settle" upon a [lower] standard when the officers' knowledge meets the higher standard.

The very definition of "activist" or results-oriented judging is when a judge decides a question that is not presented by the facts in the case before him or her. That is exactly what Judge McKeague did in Pruitt. The majority here does the exact opposite of activist judging: determines that the facts do not require settling upon a standard and accordingly declines to adopt a standard.

Sadly, such hack-ish behavior is common among the conservatives on the Sixth.
9.4.2008 9:53pm
Another Sixth Circuit Watcher (mail):
One more thing, Sixth Circuit Watcher:

Your sentence here shows you haven't even read this case: "Ah, but now Judge Moore has created a "question" where there was none -- in a case where the "question" itself was irrelevant and should not have been raised."

Um, reading the case it sure sounds like the standard created by Payton was at issue. Look at page 5 of the pdf: "Indeed, at oral argument the government conceded that Jones, as the earlier case in our circuit, was binding and had settled this issue." If you read the opinion, you'll see that the old Jones case had used much "probable cause" language. So the case absolutely presented the questions of what exactly is the level of proof required under Payton, did Jones establish that the level was PC, did Pruitt set it as some lower standard and/or was this question even posed by the facts in Pruitt?

Anyhow, sorry to let reality and the actual facts of the case intrude upon your fantasy of activist liberal judges.
9.4.2008 10:02pm