On January 29, the Second Circuit issued an opinion in United States v. Allen holding that when police stand outside the threshold of a home while arresting a suspect who stands inside his home, the procedure qualifies as a “home arrest” and therefore, absent exigent circumstances, requires a warrant. As the court describes the case, it is literally “liminal” in that it is a borderline case and concerns the threshold of the home. Despite being at the border, it is an important case that drives home the centrality of the home and the associated privacy of that sacred domain, by erring on the side of requiring a warrant where the case could potentially have gone either way.
Home Arrests Require a Warrant
In Payton v. New York, the U.S. Supreme Court held that when police arrest a suspect in the suspect’s home, the Fourth Amendment requires that they first obtain an arrest warrant (absent an exigent circumstance excusing the failure to get a warrant). Unlike arrests in public, an arrest in a suspect’s home implicates not only the suspect’s interest in liberty (which is plainly implicated in every arrest) but also his interest in privacy and, in particular, the privacy of his home, often singled out for greater protection than the other venues and items in which we enjoy the protection of the Fourth Amendment.
In the case that began this column, United States v. Allen, the Second Circuit considered the question whether an arrest in which the police stand outside the threshold of the suspect’s home while the suspect stands inside his home is a “home” arrest for purposes of Payton or whether it is a public arrest, permissible without an arrest warrant. The reason that one might think such an arrest is a “public” arrest at all is that when individuals open their doors voluntarily to the police or to the public, they are said to “knowingly expose” whatever becomes visible at that point, so that opening the door may arguably turn the threshold of the home into public space.
The issue of threshold arrests (and their status as public or private) mattered in Allen, because immediately after Allen was placed under arrest (by being told that “would need to come down to the police station to be processed for [an] assault” of which he stood accused), Allen needed to retrieve his shoes and tell his 12-year-old daughter that he would be leaving with the officers. To do so, the officers explained, he had to be accompanied by officers, which he was. In the course of following him through his house, the police saw drug paraphernalia, which became part of the foundation for a later search warrant that turned up a handgun, on the basis of which Allen was subsequently re-arrested and charged with being a felon in possession of a firearm. It was on this charge that Allen entered a conditional guilty plea, reserving his right to appeal the denial of his motion to suppress the firearm (along with statements that he had made) as the fruit of the original warrantless home arrest allegedly conducted in violation of the Fourth Amendment.
In reversing the district court’s denial of Allen’s suppression motion, and in finding that he was in fact arrested “at home” under the Payton test, the Second Circuit relied in part on a case that it viewed as binding precedent and that was cited favorably by the U.S. Supreme Court in Payton, a 1978 case called United States v. Reed. As the majority made clear, however, it views the result not only as required by Reed but as the right result, independent of the precedent.
One thing that potentially makes this result somewhat challenging to defend is the fact that as the court conceded, “law enforcement officers, like any other citizens, have an implied license to approach a home, knock on the door, and try to speak with the occupants.” It might therefore seem that if the police, in the course of their conversation with the suspect, develop probable cause to arrest him, they should be able to do so without a warrant, so long as they do not first enter his home.
Yet the Supreme Court has said, in Florida v. Jardines, that “[t]he scope of [the implied license to approach a home, knock, etc.]—express or implied—is limited not only to a particular area but also to a specific purpose.” Though police officers’ purpose ordinarily does not matter if their conduct is itself reasonable, under Whren v. United States, the Court in Jardines did focus on police purpose (a drug sniff rather than a short visit) in ruling the conduct there unconstitutional. The Second Circuit, persuasively, suggested that the permissible purpose (for which an approach, a knock, and an attempt to speak can occur) does not include conducting a warrantless arrest, and the police in Allen had already decided to arrest the suspect (and had probable cause to do so) before they even came to his door. The officers were not, in other words, seeking to have a conversation (like any citizen might) but were instead specifically seeking to conduct a warrantless arrest of a man as he stood inside his home.
In one sense, we may wonder, if police may knock on people’s doors without probable cause and conduct nominally voluntary conversations across the threshold, what makes it so much worse for the police to be able to arrest their suspect across the threshold as well? One answer is that if a suspect is aware of his rights (a presumption that the law, perhaps unfortunately, makes of suspects), then he knows that he can terminate an unwanted conversation across the threshold with the police, if police do not have probable cause to arrest him (or any evident intention of arresting him). The informed suspect can even refuse to answer the door when the police knock, so long as they have no authority to detain him.
As unrealistic as it may seem for the person in this scenario to exercise his right to exclude the police from his life, the exercise of that right becomes impossible once he is arrested. Once he is told that he must come with the police to the stationhouse to be processed for an alleged assault, he loses his right to cut off contact with the police. At this point, he is in his home, with all of the vulnerability that that implies (in his case, not wearing shoes, and having a young daughter in the house to whom he needed to communicate his imminent arrest). And the police accordingly get immediate access to the inside of his home, as they have the “’right to remain literally at [an arrestee’s] elbow,” the sort of access that Payton was meant to guard against: the invasion of a suspect’s home without a warrant of any kind, absent an exigent circumstance. And because the police already had probable cause and the intent to arrest Allen when they came to his door, it was entirely foreseeable (as it generally is, when a regular home arrest is conducted) that police would have the opportunity to cross the threshold of Allen’s home and see the personal and private items that he kept in this sacred space.
There is apparently a split of authority on the issue presented in this case. Some circuits hold that because Payton said that “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed,” it follows that police must physically cross the threshold and enter the home before there can be a Payton home arrest. Other circuits, relying in part on a distinction (not elaborated in this column) that the Second Circuit rejects, say that officers need not physically enter the home to trigger Payton, because “it is the location of the arrested person, and not the arresting agents, that determines whether an arrest occurs within a home.” See United States v. Reeves, 524 F.3d 1161, 1165 (10th Cir. 2008).
Contrary to the above quote from the Tenth Circuit, however, “the location of … the arresting agents” certainly can determine “whether an arrest occurs within a home.” If police enter the home, then they have effected a home arrest for purposes of Payton, even if the suspect is not in the house at the time (indeed, perhaps especially if the suspect is not at home, since police will then likely search throughout the house to find him before satisfying themselves that he is not there). But “the location of the arrested person” should also matter, maybe just as much. This is not only because of the likely subsequent invasion of privacy that will happen shortly, and that, predictably, happened in Allen. It is because of the tremendous vulnerability and exposure that a person feels when he stands inside the threshold of his home, literally held in place by a police officer’s announcement that he is under arrest. A suspect at home is in the space where he expects and is entitled to feel safest and most comfortable, where he has the right to exclude unwanted others, and where he has suddenly become divested of these rights. The Second Circuit was right to hold that arrests at the threshold of the home are indeed home arrests. They will certainly be experienced as such by the private individual who has—perhaps voluntarily—opened his door but may no longer close it behind him and retreat into his refuge from the world outside.