Reading the Fifth: Supreme Court Exercises its Right to Remain Silent on What Comprises a “Criminal Case”

BACKGROUND

The Self-Incrimination Clause of the Fifth Amendment protects individuals from being compelled to bear witness against themselves in a criminal case. Courts have struggled with the scope of this protection, particularly regarding what comprises a “criminal case.” Does the term extend to pre-trial proceedings, such as a bail hearing? Has a person’s Fifth Amendment right against self-incrimination been violated if the compelled statement in question is never used in a court of law?

Over the past thirty years, the Supreme Court has never directly resolved the question of what constitutes a “criminal case.” In dicta from United States v. Verdugo-Urquidez (1990), the Supreme Court indicated that the Fifth Amendment right was merely a trial right. But later, in Mitchell v. United States (1999) the Supreme Court indicated that the right extended to sentencing hearings.

The question of what comprises a criminal case was more recently addressed in Chavez v. Martinez (2003). In his plurality opinion, Justice Clarence Thomas declared that a statement was not a violation of the Fifth Amendment right against self-incrimination where the individual first hadn’t been charged with a crime and where the individual’s statements had not been used in a criminal case. Thomas further wrote:

“Mere coercion doesn’t violate the self-incrimination clause minus use of compelled statements in a criminal case against the witness…a ‘criminal case’ at the very least requires the initiation of legal proceedings.”

Three other justices disagreed, arguing that self-incrimination is complete the moment a confession is compelled, regardless of whether the statement is used at trial.

After the opinions in Chavez were released, a circuit split developed over the definition of a criminal case under the Fifth Amendment.

THE ISSUE

Does the Fifth Amendment right against self-incrimination include statements compelled in pre-trial proceedings?

THE SPLIT

The Third, Fourth and Fifth Circuits resolved this question in favor of Justice Thomas’s view, holding that the right against self-incrimination is only a trial right. In Renda v. King (2003), the Third Circuit determined that questioning while in police custody without providing Miranda warnings is not a Fifth Amendment violation if the individual is never charged with a crime and their responses are never used in a trial.

But on the other hand, in Vogt v. City of Hays (2017) the Tenth Circuit resolved this question in favor of a broader reading of the term “criminal case,” allowing the term to include certain pre-trial proceedings. The Second, Seventh, and Ninth Circuits take a similar view of the right against self-incrimination.

The facts of Vogt are unusual. In Vogt, a police officer for the City of Hays admitted during an interview with a neighboring police department that he had illegally retained a knife obtained during his employment as a police officer. The neighboring police department agreed to hire Vogt on the condition that he report the illegal retention of the knife to the Hays police department. Upon Vogt’s admission, Hays initiated a criminal investigation against him. The charges were dropped, but Vogt sued, claiming that the state violated his Fifth Amendment right against self-incrimination by inducing him to confess.

The Tenth Circuit in Vogt concluded—after examining the text of the Fifth Amendment and the Founders’ intent—that the right against self-incrimination includes pre-trial proceedings. The court noted that the Fifth Amendment makes no mention of “trial” or “criminal prosecution,” instead using the term “criminal case.” The court pointed to Counselman v. Hitchcock (1892) wherein the government argued that a witness could not invoke the Fifth Amendment in a grand jury proceeding because it was not a “criminal case.” The Supreme Court rejected the government’s argument there, holding that the “criminal case” of the Fifth Amendment is a broader term than the Sixth Amendment’s “criminal prosecution.”

Additionally, to determine the meaning of “criminal case,” the Tenth Circuit consulted the most prominent dictionary of the Framers’ era: purportedly Noah Webster’s An American Dictionary of the English Language. In this dictionary, “case” was defined as “a cause or suit in court.” This definition, where “suit” is understood to be nearly synonymous with “cause,” indicates that the Framers understood the criminal case to encompass more than merely the trial. From these facts, Tenth Circuit concluded that the right against self-incrimination is more than just a trial right.

LOOKING FORWARD

The City of Hays appealed the Tenth Circuit’s decision in Vogt, and the Supreme Court granted certiorari on September 28, 2017. The case was argued before the Court on February 20, 2018; however, whether this split will be resolved by the Vogt appeal is yet to be seen. Justices Samuel Alito and Sonia Sotomayor both noted the case was “odd,” and Justice Breyer even questioned whether the strange and distinguishing facts of Vogt made it an appropriate one for the Court to take. The Supreme Court has the option to dismiss the case as improvidently granted, but it is likely that the Court will publish an opinion resolving this constitutional issue soon.

On a constitutional question of this magnitude, let’s hope the Supreme Court doesn’t choose to plead the Fifth.

Does Pre-Trial Detention Toll a Term of Supervised Release?

Supervised Release

For some people who are convicted of a criminal offense, a sentence can include a term of supervised release (also known as special or mandatory parole). Under 18 U.S.C. § 3624, the federal supervised release statute, a term of supervised release begins on the day that a person is released into the custody of a parole officer. The federal supervised release statute also provides that the term of supervised release is tolled during any period where the person is imprisoned in connection with a conviction for a different federal, state, or local crime.

The Issue

Jason Mont began a five-year period of supervised release on March 6, 2012. On June 1, 2016, Mr. Mont was arrested on state charges and held in pre-trial detention until he pleaded guilty in October 2016. In June 2017, Mr. Mont’s supervised release was revoked, and he was ordered to serve an additional 42 months for violating his supervised release. In United States v. Mont (2018), Mr. Mont claimed that the court did not have jurisdiction to revoke his supervised release, arguing that his supervised release ended on March 6, 2017 (five years after he was initially released). Following circuit precedent established by United States v. Goins (2008), the Sixth Circuit held that pretrial detention that leads to a conviction counts as time “in connection with a conviction,” as described in the federal statute.

The Split

Several circuits have spoken to whether time served in pretrial detention counts as time “in connection with a conviction” for the purposes of the federal supervised release statute, in addition to the Sixth Circuit’s previous ruling in Goins. The Fourth Circuit in United States v. Ide (2010), the Fifth Circuit in United States v. Molina-Gazca (2009), and the Eleventh Circuit in United States v. Johnson (2009) have all held that pretrial detention counts for the purposes of the federal supervised release statute. In contrast, the D.C. Circuit in United States v. Marsh (2016) and the Ninth Circuit in United States v. Morales-Alejo (1999) held that time served in pretrial detention does not qualify.

The Ninth Circuit is the only circuit that has directly addressed the statutory language in the federal supervised release statute:

“A plain reading of this language…suggests that there must be an imprisonment resulting from or otherwise triggered by a criminal conviction. Pretrial detention does not fit this definition, because a person in pretrial detention has not yet been convicted and might never be convicted.”

In Mont, the Sixth Circuit explicitly rejected this interpretation.

Looking Forward

This case has not attracted much attention within the legal community since the Sixth Circuit’s ruling was handed down this past February, but it does have important ramifications for persons whose sentences include a period of supervised release. With six circuits having weighed in on opposite sides of a matter of federal statutory interpretation, the time is ripe for an aggrieved party to petition the Supreme Court for a definite ruling on this issue. Mr. Mont has ninety days from the date of the Sixth Circuit’s judgment to file a writ of certiorari to the Supreme Court – while this deadline has not passed, it is not yet clear whether he will file a petition. In the alternative, given that this issue arises out of different interpretations of a federal statute, Congress could pass a bill to amend the current statute and clarify whether pretrial detention that leads to a conviction counts as time served in connection with a conviction.

Do the due process restrictions on shackling criminal defendants apply equally to jury and non-jury proceedings?

Background

Due process under the Fifth and Fourteenth Amendments restricts the use of physical restraints on criminal defendants during a criminal trial. Because shackles are inherently prejudicial, the Supreme Court instructed in Deck v. Morrison (2005) that defendants should only be shackled during trial as a last resort. Shackles interfere with a jury’s ability to make accurate determinations about both guilt and sentencing because they imply to a jury that the defendant is dangerous, and may cause a jury to infer negative attributes about the defendant’s character.

The Court established a rule in Deck that physical restraints that are visible to a jury may only be used after a trial court determination that they are justified by an essential state interest, based on particular concerns in a specific defendant’s trial. For example, a trial court may find that a particular defendant poses such severe security risks that shackling is necessary to protect the occupants of the courtroom. Judges may not impose blanket rules about the use of restraints, and the inquiry must be specific to concerns about the particular defendant. The Deck rule applies to both guilt-determination proceedings and to sentencing proceedings.

The Court builds the rule in Deck v. Morrison from three essential principles:

  • The presumption of a defendant’s innocence until proven guilty. Visible restraints erode the fairness of the criminal proceeding by implying that the defendant is dangerous and tipping the scale in favor of guilt.
  • The defendant’s constitutional right to counsel. Shackles interfere with a defendant’s ability to move freely to communicate with her attorney. Defendants physically struggle to write when they are restricted by shackles, which limits their ability to effectively communicate with counsel during criminal proceedings.
  • The dignity and decorum of the courtroom is necessary to support confidence that the legal system pursues justice as it handles the potential deprivation of liberty. Courtroom dignity requires that defendants are treated respectfully.

The Issue

The Court only addressed jury proceedings in Deck. The Deck holding left lower courts to determine whether a defendant’s due process rights require the same justification for shackles in proceedings without juries.

The Split

The Second Circuit does not require a specific evaluation of the need for restraints in non-jury proceedings. Because juror prejudice is the primary concern for limiting the use of restraints in the courtroom, the Second Circuit examined in United States v. Zuber (1997) whether a concern of prejudice is present when judges rather than juries do the sentencing.

We traditionally assume that judges, unlike juries, are not prejudiced by impermissible factors, …, and we make no exception here. We presume that where, as here, the court defers without further inquiry to the recommendation of the Marshals Service that a defendant be restrained at sentencing, the court will not permit the presence of the restraints to affect its sentencing decision.

Similarly, the Eleventh Circuit held in United States v. Lafond (2015) that the Deck rule against restraints only limits the use of restraints at proceedings with juries.

The Ninth Circuit arrived at a different conclusion in United States v. Sanchez-Gomez (2017). The court extended the Deck rule to non-jury proceedings and clarified that it applies in pretrial, trial, and sentencing proceedings. The Ninth Circuit now requires that, before shackling a criminal defendant in both jury and non-jury proceedings, courts must decide if the security concerns with the particular defendant outweigh the infringement on the defendant’s due process right.

Continuing with the rationale for the Deck rule, the court applied the principle of presuming a defendant’s innocence until proven guilty.

The principle [that defendants are innocent until proven guilty] isn’t limited to juries or trial proceedings. It includes the perception of any person who may walk into a public courtroom, as well as those of the jury, the judge and court personnel. A presumptively innocent defendant has the right to be treated with respect and dignity in a public courtroom, not like a bear on a chain.

Using the third Deck justification, the Ninth Circuit reasoned that dignity and decorum require consistent application of the rule:

Courtrooms are palaces of justice, imbued with a majesty that reflects the gravity of proceedings designed to deprive a person of liberty or even life. A member of the public who wanders into a criminal courtroom must immediately perceive that it is a place where justice is administered with due regard to individuals whom the law presumes to be innocent. That perception cannot prevail if defendants are marched in like convicts on a chain gang. Both the defendant and the public have the right to a dignified, inspiring and open court process. Thus, innocent defendants may not be shackled at any point in the courtroom unless there is an individualized showing of need.

Looking Forward

The Supreme Court recently granted a writ of certiorari for Sanchez-Gomez, but declined to take up the issue of whether due process prohibits the use of restraints in non-jury proceedings. The circuit split and conflicting rationales present a need for clarity on this important constitutional issue.

 

 

 

 

Agree to Disagree: Defining Submission to Police Authority

Issue

The Fourth Amendment of the Constitution protects against unwarranted searches and seizures, which begs the question—what exactly constitutes a seizure? In California v. Hodari D. (1991), the Supreme Court held that a “seizure” requires either physical force or submission to police authority. In the wake of this decision, circuit courts have struggled to define the phrase, “submission to police authority,” resulting in a split of authority. The emergent view in the Courts of Appeals, although admittedly uneven within the circuits, is that when a suspect does nearly anything more than pausing briefly, including any significant verbal engagement with the officer, that action is strong evidence of submission.” United States v. Camacho (1st Cir. 2011). Some courts have adopted this rather broad interpretation of the term, imparting a low standard for submission. Other courts have adopted a narrow view, requiring additional conduct to meet the standard.

The issue of defining submission is incredibly significant because of its impact on other aspects of a case. For example, whether or not a defendant is deemed to have submitted to police authority can determine what evidence may be presented at trial, which can significantly influence the outcome of a case. The Fourth Amendment serves to protect against unwarranted invasions of privacy by requiring probable cause. The Fourth Amendment “prohibition on unreasonable searches and seizures is enforced through the exclusionary rule, which excludes evidence seized in violation of the Fourth Amendment.” United States v. Camacho (1st Cir. 2011).

The Split

The following circuits have adopted the view that brief compliance followed by flight does not constitute submission.

  • Second Circuit: In United States v. Huertas (2d Cir. 2017), the court held that, in dealing with the police, conduct that amounts to evasion cannot be considered submission.
  • Third Circuit: In direct contradiction with the Tenth Circuit’s ruling, the court in United States v. Valentine (3d Cir. 2000) held that a brief pause does not make for a submission, and therefore the defendant in this case was not seized within the Fourth Amendment meaning.
  • Ninth Circuit: In United States v. Hernandez (9th Cir. 1994), the court rejected the defendant’s argument that he was “seized” because he briefly submitted to the police officer’s show of authority before fleeing. The court here requires a discernible showing of compliance to constitute submission:

“We decline to adopt a rule whereby momentary hesitation and direct eye contact prior to flight constitute submission to a show of authority. Such a rule would encourage suspects to flee after the slightest contact with an officer in order to discard evidence, and yet still maintain Fourth Amendment protections.”

The following circuits have adopted the view that brief compliance followed by flight does constitute submission.

  • First Circuit: In United States v. Camacho (1st Cir. 2011), the court held that once a defendant responds to questions posed by the police, he or she has submitted to police authority.
  • Tenth Circuit: In United States v. Morgan (10th Cir. 1991), the court held that even the slightest form of compliance, in this case, a momentary hesitation, is enough to constitute submission. The court explains its reasoning as follows:

“Here, the intrusion on Mr. Morgan in regard to the initial attempted questioning by Officer Eubanks and the subsequent exchange between the two was minimal. However, since Officer Eubanks had followed the car in which Defendant was a passenger for several blocks with his red lights flashing; since Officer Eubanks exited from a marked police car, in uniform, and asked the Defendant to hold up; and since Defendant, at least momentarily, yielded to the Officer’s apparent show of authority, we find Mr. Morgan was seized for purposes of the Fourth Amendment during the initial portion of the encounter.”

  • D.C. Circuit: In United States v. Brodie (D.C. Cir. 2014), the court ruled that when a defendant complies with an officer’s orders by engaging in overt acts, such as putting one’s hands on the car, the defendant has submitted to police authority.

Looking Forward

Although the Supreme Court expressly outlined the requirements for a “seizure” in California v. Hodari D. (1991), it still left some questions unanswered—circuit courts were tasked with the responsibility of defining “submission to police authority,” and conflicting rulings resulted. Branden Huertas submitted a petition for writ of certiorari to the Supreme Court in December 2017, in hopes of appealing the Second Circuit’s decision in United States v. Huertas (2017). In the petition, Huertas discusses the split among the lower courts and urges the Supreme Court to review the issue. In his petition for a writ of certiorari to the U.S. Court of Appeals for the Second Circuit, Huertas notes: “The conflict is widely recognized by courts and commentators. It also is deeply entrenched; the courts on either side of the split have acknowledged the contrary reasoning of their peers and have had multiple opportunities to reconsider their positions, but the conflict has persisted. Thus, only this Court can restore uniformity on this important question of Fourth Amendment law.” For further reading, see the petition for writ of certiorari: Huertas v. United States.

Card Declined: The Credit Card Fraud – Crime Sentencing Transaction

The Issue

Wire fraud, an intentional act to defraud another individual or entity of property (usually money) through electronic means, is becoming an increasingly common and widespread crime in the United States. According to a study by Javelin Strategy & Research in partnership with LifeLock, Inc., approximately 15.4 million consumers were victims of identity theft or fraud in 2016, up 16 percent from 2015, and more than ever recorded by the firm. Obtaining credit card numbers, encoding them on blank cards, and making purchases or withdrawals from automated teller machines (ATMs) has become a favorite medium of crime among fraudsters. When determining how a perpetrator of wire fraud should be sentenced for possessing credit cards that are canceled, expired or attached to an account from which all funds have been successfully siphoned, a key issue is whether the “access device” is in fact usable by the perpetrator.

The Split

Credit cards that have been encoded with stolen numbers and used fraudulently are governed by 18 U.S.C. § 1029(e)(1) and (e)(3). Of particular importance, Application Note 3(F)(i) of § 2B1.1 of the sentencing guidelines says in cases involving “unauthorized access devices,” in this case credit cards, “loss includes any unauthorized charges made with the counterfeit access device.”

The Ninth Circuit ruled on this issue in 2012, when it considered United States v. Onyesoh, which explored access device fraud under 18 U.S.C. § 1029 and whether the government must prove the usability of an expired credit card number in order for a district court to increase the severity of a sentence. In Onyesoh, the Ninth Circuit held that unauthorized access devices must be usable:

An “unauthorized access device” must be an “access device,” which itself must be capable of obtaining “money, goods, services, or any other thing of value.” 18 U.S.C. § 1029(e)(1) and (e)(3). The statute’s language is clear and we give it full effect—unauthorized access devices are a subset of access devices, and therefore must be capable of obtaining something of value…The statute is intended to target major fraud operations instead of individual [fraud]…But the kind of devices potentially covered by the statute says nothing about the quantum of proof necessary to establish usability. The legislative history simply does not address that issue. No court, in this or any other circuit, has read usability out of the statute.

But in deciding United States v. Popovski at the end of 2017, the Seventh Circuit changed the score. Judge Easterbrook adopted the Sixth Circuit’s 2015 decision in United States v. Moon, arguing that the statute and note must be read together:

[T]he definition of “unauthorized access device” in § 1029(e)(3) includes “any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud”. This necessarily implies that a card, number, or other identifier with a potential to obtain goods or initiate a transfer of funds remains an “access device” even if it is “expired, revoked, [or] canceled.” These two statutory paragraphs can work together only if paragraph (1) defines an “access device” according to its nature—the sort of thing that could in principle be used to get goods or funds, whether or not it would work in practice…. If a calculation under Application Note 3(F)(i) overstates the seriousness of the offense, a district judge must adjust accordingly. That process, rather than warping the language of § 1029(e), is the way to avoid the Ninth Circuit’s parade of horribles.

While the Ninth Circuit’s decision was likely predicated on a desire to prevent obtuse sentences for criminals who possessed but did not use expired credit card numbers, Judge Easterbrook’s scathing critique of the Ninth Circuit made clear that the Seventh Circuit, like the Sixth Circuit, will not cut financial criminals any sentencing slack:

Like the panel in Onyesoh, we too think that a district judge should not increase a sentence just because the defendant possessed ancient pieces of plastic or lists of numbers useful only during the reign of Xerxes. But we disagree with Onyesoh’s view that this result should be achieved by treating the language in § 1029(e)(3) as irrelevant to the meaning of “access device”. Courts must read the statute to reconcile these paragraphs.

Looking Forward 

After a new sentencing hearing, the Ninth Court of Appeals and the Supreme Court denied Onyesoh’s petition for a writ of certiorari.  Certiorari is currently pending for Popovski, but the Supreme Court has not expressed interest in ruling on the case in the current session.

Judge Easterbrook, in deciding United States v. Popovski, came down hard on the Ninth Circuit’s interpretation of the sentencing law regarding this sort of wire fraud. He argued, in part, that district judges can come to a workable resolution under the current law without disregarding any specific portion of the statute. Following Judge Easterbrook’s logic, it seems unlikely that this issue will pique the Supreme Court’s interest. Nevertheless, if credit card fraud continues to rise at record levels and continues to emerge as the cause celebre of the consumer crime world, constituent pressure may push Congress to act.

 

Waive after Waive: Can the Government Waive a Challenge to Fourth Amendment Standing?

Background: Not All Standing is Done on the Same Legs

The most familiar idea of “standing” is based in Article III and is about whether someone can participate in the case at all. However, the term “standing” has attached itself to a narrower issue within Fourth Amendment law, despite then-Justice Rehnquist’s misgivings in Rakas v. Illinois.

Fourth Amendment standing is shorthand for the requirement that in a motion to suppress evidence from an unconstitutional search and seizure, the defendant must show that the search violated the defendant’s own personal rights of privacy, liberty, or possession. A defendant lacks Fourth Amendment standing if they attempt to suppress evidence based on the violation of someone else’s rights, for example, when a search of a car one does not own uncovers a gun that one, likewise, cannot lay claim to—the move not permitted in Rakas.

It is the responsibility of the government to bring a challenge to a defendant’s Fourth Amendment standing, but what happens when it does not do so at the district level? Is it waived in any future proceedings?

The Split

Two circuits have held that the government does not waive Fourth Amendment standing issues if it fails to raise them in district court: the First Circuit and the Eighth Circuit. The Eighth Circuit case on point, United States v. Rodriguez-Arreola, clearly states that the government does not waive a lack of Fourth Amendment standing based on a previous case pertaining to Article III standing, surely causing Chief Justice Rehnquist to spin uncontrollably in his grave:

The government cannot waive Rodriguez’s lack of standing, and therefore any argument based on waiver must fail…(“[I]t is elementary that standing relates to the justiciability of a case and cannot be waived by the parties.”).

On the other hand, seven circuits hold that the government does in fact waive Fourth Amendment standing challenges if it fails to raise them in district court, though some circuits are more lenient than others. This majority position is rooted in the idea that just because the word “standing” is involved, it does not implicate Article III jurisdictional issues—it views Fourth Amendment standing as simply shorthand for the substance of the Fourth Amendment.

Most of these circuits (namely, the Third, Fifth, Seventh, Tenth, and Eleventh) hold that the government may not raise an issue of Fourth Amendment standing for the first time on appeal. If the government fails to challenge Fourth Amendment standing on the district level, it amounts to a complete concession on the issue by the government.

The Ninth Circuit, in United States v. Paopao, gives the government some wiggle room, allowing challenges to Fourth Amendment standing to be raised for the first time on appeal. It makes clear in United States v. Ewing, however, that failure to place a challenge to Fourth Amendment standing in the appellate brief only to bring it up at oral argument is not a valid move, and amounts to a waiver of the challenge.

The latest circuit to join the waive-friendly bunch is the Sixth. United States v. Noble leans toward the Ninth Circuit’s holding, though it is not so lenient. The Sixth Circuit first criticizes the approach of the First and Eighth Circuits, noting:

“Fourth Amendment standing is akin to an element of a claim and does not sound in Article III. The government, like other litigants, therefore, can forfeit or waive an argument that defendants lack Fourth Amendment standing.”

Later, the Sixth Circuit lays out its own approach to waivability:

“[W]e would allow the government to raise an objection to a defendant’s Fourth Amendment standing for the first time on appeal, provided that the government can show that the defendant plainly lacked standing and that our failure to recognize it would “seriously affect…the fairness, integrity or public reputation of judicial proceedings.” …However, if the government fails to raise the issue in its opening brief on appeal, then the objection is waived.”

Looking Forward

While the Supreme Court has released opinions concerning Fourth Amendment standing, it has not explicitly stated whether the government waives the issue if it fails to bring it up in district court. Considering the precedent of Rakas, if the right mix of criminal procedures twists and turns its way up to the highest Court, it would not be unreasonable to wager on the path chosen by most circuits today. For what it’s worth, however, this blogger would like to see a reexamination of the general idea that a defendant cannot acquire Fourth Amendment standing without an interest in the property searched, especially when that unconstitutional search specifically targeted that defendant.

It Seemed like the Reasonable Approach at the Time: A Circuit Split on the Meaning of “Reasonable Belief” in Search and Seizure

How Many Warrants?

Two major Supreme Court decisions are at play here concerning the constitutionality of officers entering residences to execute arrest warrants when residency of the suspect is uncertain.

In the aftermath of the first case, Payton v. New York (S.Ct. 1980), the Courts of Appeals developed a two-prong test to assess the constitutionality of an officer’s entry to execute an arrest warrant: the officer must have a “reasonable belief” that (1) the “arrestee lives in the residence, and that (2) the “arrestee is within the residence.” United States v. Gay (10th Cir. 2001).

One year after Payton, the Supreme Court held that officers may not enter the residence of a third party to execute an arrest warrant unless they first obtain a search warrant based on the belief that the suspect “might be a guest there.” Steagald v. United States (S.Ct. 1981). This created a stricter standard for entering officers if they believe only that the suspect is a common “guest” in the residence rather than a resident or immediately within the residence. Thus, officers would much prefer that the arrestee is a resident and within the residence as opposed to being simply a guest.  The determination of whether officers need only an arrest warrant to enter versus an arrest warrant and a search warrant to enter a residence is entirely dependent on an officer’s “reasonable belief.”

The circuit courts have since been faced with discerning what constitutes a “reasonable belief,” thus determining when both an arrest and a search warrant are necessary for constitutional entry into third party residences as opposed to only an arrest warrant.

Circuit Split

The Third Circuit is the most recent voice to enter the interpretive dispute surrounding the standard of “reasonable belief.” United States v. Vasquez-Algarin (3rd Cir. 2016).

Joining the Fifth, Sixth, Seventh, and Ninth Circuits, the Third Circuit held that reasonable belief should be viewed as the functional equivalent of probable cause, and thus the same standard.  The practical effect of requiring a probable cause standard is that it makes it more difficult to enter only with an arrest warrant. The Third Circuit had two primary reasons for their decision:

  • First, the Supreme Court’s use of the phrase “reason to believe,” when considered in the context of Payton and more generally the Court’s Fourth Amendment jurisprudence, supports a probable cause standard.
  • Second, and more fundamentally, requiring that law enforcement officers have probable cause to believe their suspect resides at and is present within the dwelling before making a forced entry is the only conclusion commensurate with the constitutional protections the Supreme Court has accorded to the home.

Some of Vasquez-Algarin’s reasoning echoes that of the Sixth Circuit, both noting that on several occasions the Supreme Court has used the same “reason to believe” language from Payton “as a stand-in for ‘probable cause.’” (3d Cir. 2016).

The DC Circuit, First, Second, and Tenth Circuits have held that the standard for reasonable belief falls short of the standard for probable cause belief. The DC Circuit reasons that it is “more likely . . . that the Supreme Court in Payton used a phrase other than ‘probable cause’ because it meant something other than ‘probable cause.’” (2005). The Tenth Circuit equates probable cause requirements with calls for “actual knowledge of the suspect’s true residence.” (1999). It believes extending probable cause as the standard for a “reasonable basis” for determining that an individual “lived in the residence and . . . could be found within at the time of entry,” would “effectively make Payton a dead letter.” Valdez v. McPheters (10th Cir. 1999).

The Third Circuit claims that the Supreme Court’s choice of stand-in language undermines the DC Circuit’s conclusion that Payton’s ‘reason to believe’ language should be interpreted loosely. The Third Circuit explains that the Supreme Court’s use of “reason to believe” as a stand-in for “probably cause” indicates the Court’s belief that the standard for the two is the same.

Looking Forward

The incongruence in requirements for only arrest warrants versus arrest and search warrants creates such a fundamental constitutional discrepancy that the Supreme Court should address it soon.

For the last 36 years, courts have been left to grapple with the interpretation of the Court’s language in Payton, and the circuits seem to have pretty evenly split on the meaning of a “reasonable belief.” Until the Court addresses the standard for reasonable belief varying degrees of scrutiny will continue to be imposed on officers, and the degree of protection of an individual’s right to be secure in their home will remain grey.