Steagald v. United States

Justice Rehnquist,

with whom Justice White joins, dissenting.

The Court’s opinion reversing petitioner’s conviction proceeds in a pristinely simple manner: Steagald had a Fourth Amendment privacy interest in the dwelling entered by the police, and even though the police entered the premises for the sole purpose of executing a valid arrest warrant for Lyons, a fugitive from justice, whom they had probable cause to believe was within, the arrest warrant was not sufficient absent exigent circumstances to justify invading Stea-gald’s privacy interest in the dwelling. Petitioner Steagald’s privacy interest is different from Lyons’ interest in being free from an unreasonable seizure, according to the Court, and the arrest warrant only validated the invasion of the latter. In the words of the Court:

“[T]he search of petitioner’s home was no more reasonable from petitioner’s perspective than it would have been if conducted in the absence of any warrant. Since war-rantless searches of a home are impermissible absent consent or exigent circumstances, we conclude that the instant search violated the Fourth Amendment.” Ante, at 216.

This “reasoning” not only assumes the answer to the question presented — whether the search of petitioner’s dwelling could be undertaken without a search warrant — but also conveniently ignores the critical fact in this case, the existence of an arrest warrant for a fugitive believed on the basis of probable cause to be in the dwelling. The Court assumes *224that because the arrest warrant did not specifically address petitioner’s privacy interest it is of no further relevance to the case. Incidental infringements of distinct Fourth Amendment interests may, however, be reasonable when they occur in the course of executing a valid warrant addressed to other interests. In Dalia v. United States, 441 U. S. 238 (1979), the Court rejected the argument that a separate search warrant was required before police could enter a business office to install an eavesdropping device when a warrant authorizing the eavesdropping itself had already been obtained. As the Court put it: “This view of the Warrant Clause parses too finely the interests protected by the Fourth Amendment. Often in executing a warrant the police may find it necessary to interfere with privacy rights not explicitly considered by the judge who issued the warrant.” Id., at 257 (emphasis supplied). In Payton v. New York, 445 U. S. 573 (1980), the Court rejected the suggestion that a separate search warrant was required before police could execute an arrest warrant by entering the home of the subject of the warrant. Although the subject of the warrant had a Fourth Amendment interest in the privacy of his dwelling quite distinct from the interest in being free from unreasonable seizures addressed by the arrest warrant, the Court concluded that it was “constitutionally reasonable to require him to open his doors to the officers of the law.” Id., at 602-603.

This case, therefore, cannot be resolved by the simple Aristotelian syllogism which the Court employs. Concluding as it does that the arrest warrant did not address the privacy interest affected by the search by no means ends the matter; it simply presents the issue for decision. Resolution of that issue depends upon a balancing of the “need to search against the invasion which the search entails.” Camara v. Municipal Court of San Francisco, 387 U. S. 523, 537 (1967). Here, as in all Fourth Amendment cases, “reasonableness is still the ultimate standard.” Id., at 539. See Wyman v. James, 400 U. S. 309, 318 (1971); Marshall v. Barlow’s, Inc., *225436 U. S. 307, 315-316 (1978). In determining the reasonableness of dispensing with the requirement of a separate search warrant in this case, I believe that the existence of a valid arrest warrant is highly relevant.

The government’s interests in the warrantless entry of a third-party dwelling to execute an arrest warrant are compelling. The basic problem confronting police in such situations is the inherent mobility of the fugitive. By definition, the police have probable cause to believe that the fugitive is in a dwelling which is not his home. He may stay there for a week, a day, or 10 minutes. Fugitives from justice tend to be mobile, and police officers will generally have no way of knowing whether the subject of an arrest warrant will be at the dwelling when they return from seeking a search warrant. See United States v. McKinney, 379 F. 2d 259, 263 (CA6 1967); State v. Jordan, 288 Ore. 391, 400-401, 605 P. 2d 646, 651 (1980) (en banc). Imposition of a search warrant requirement in such circumstances will frustrate the compelling interests of the government and indeed the public in the apprehension of those subject to outstanding arrest warrants.

The Court’s responses to these very real concerns are singularly unpersuasive. It first downplays them by stating that “the situations in which a search warrant will be necessary are few,” ante, at 221, because no search warrant is necessary to arrest a suspect at his home and, if the suspect is at another’s home, the police need only wait until he leaves, since no search warrant is needed to arrest him in a public place. Ibid. These beguilingly simple answers to a serious law enforcement problem simply will not wash. Criminals who know or suspect they are subject to arrest warrants would not be likely to return to their homes, and while “[t]he police could reduce the likelihood of escape by staking out all possible exits . . . the costs of such a stakeout seem excessive in an era of rising crime and scarce police re*226sources.” Payton v. New York, supra, at 619 (White, J., dissenting). The Court’s ivory tower misconception of the realities of the apprehension of fugitives from justice reaches its apogee when it states: “In routine search cases such as this, the short time required to obtain a search warrant from a magistrate will seldom hinder efforts to apprehend a felon.” Ante, at 222. The cases we are considering are not “routine search cases.” They are cases of attempted arrest, pursuant to a warrant, when the object of the arrest may flee at any time — including the “short time” during which the police are endeavoring to obtain a search warrant.

At the same time the interference with the Fourth Amendment privacy interests of those whose homes are entered to apprehend the felon is not nearly as significant as suggested by the Court. The arrest warrant serves some of the functions a separate search warrant would. It assures the occupants that the police officer is present on official business. The arrest warrant also limits the scope of the search, specifying what the police may search for — i. e., the subject of the arrest warrant. No general search is permitted, but only a search of those areas in which the object of the search might hide. See Fisher v. Volz, 496 F. 2d 333, 343 (CA3 1974); State v. Jordan, supra, at 400-401, 605 P. 2d, at 651; United States v. Cravero, 545 F. 2d 406, 421, nn. 1, 2 (CA5 1976), cert. denied, 429 U. S. 1100 and 430 U. S. 983 (1977). Indeed there may be no intrusion on the occupant’s privacy at all, since if present the suspect will have the opportunity to voluntarily surrender at the door. Even if the suspect does not surrender but secretes himself within the house, the occupant can limit the search by pointing him out to the police. It is important to remember that the contraband discovered during the entry and search for Lyons was in plain view, and was discovered during a “sweep search” for Lyons, not a probing of drawers or cabinets for contraband. United States v. Gaultney, 606 F. 2d 540, 544 (1979).

*227Because the burden on law enforcement officers to obtain a separate search warrant before entering the dwelling of a third party to execute a concededly valid arrest warrant is great, and carries with it a high possibility that the fugitive named in the arrest warrant will escape apprehension, I would conclude that the application of the traditional “reasonableness” standard of the Fourth Amendment does not require a separate search warrant in a case such as this.

This conclusion is supported by the common law as it existed at the time of the framing of the Fourth Amendment, which incorporated the standard of “reasonableness.” As the Court noted last Term in Payton: “An examination of the common-law understanding of an officer’s authority to arrest sheds light on the obviously relevant, if not entirely dispositive, consideration of what the Framers of the Amendment might have thought to be reasonable.” 445 U. S., at 591; see also id., at 604 (White, J., dissenting). The duty of the populace to aid in the apprehension of felons was well established at common law, see Roberts v. United States, 445 U. S. 552, 557 (1980), and in light of the overriding interest in apprehension, the common law permitted officers to enter the dwelling of third parties when executing an arrest warrant. Chitty wrote that “[t]he house of a third person, if the offender fly to it for refuge, is not privileged, but may be broken open after the usual demand; for it may even be so upon civil process.” 1 J. Chitty, Criminal Law *57 (hereafter Chitty). Gabbett agreed: “Neither is the house of a third person, if the offender fly to it for refuge, privileged, but it may be broken open, after the usual demand; for it may be even so upon civil process.” 2 J. Gabbett, Criminal Law 142 (1843) (hereafter Gabbett). Hale noted that an officer could forcibly enter the- house of the subject of an arrest warrant, “[a]nd so much more may he break open the house of another person to take him, for so the sheriff may do upon a civil process.” 2 M. Hale, Pleas of the Crown 117 *228(1736) (hereafter Hale). See also M. Foster, Crown Law 320 (1762).1 A 17-century work on constables noted:

“[I]t is the chief part of their office to represse fellony, and albeit it be a man’s house he doth dwell in, which they doe suspect the fellon to be in, yet they may enter in there to search; and if the owner of the house, upon request, will not open his dores, it seems the officer may break open the dores upon him to come in to search.” W. Sheppard, The Offices of Constables, ch. 8, § 2, no. 4 (c. 1650) (quoted in T. Taylor, Two Studies in Constitutional Interpretation 28-29 (1969)).

The leading authority, Semayne’s Case, 5 Co. Rep. 91a, 93a, 77 Eng. Rep. 194, 198 (K. B. 1603), recognized that “[t]he house of any one is not a castle or privilege but for himself, and shall not extend to protect any person who flies to his house ... to prevent a lawful execution, and to escape the ordinary process of law . . . and therefore in such cases after denial on request made, the sheriff may break the house.” In Ratcliffe v. Burton, 3 Bos. & Pul. 223, 230, 127 Eng. Rep. 123, 126-127 (C. P. 1802), Judge Heath ruled that before breaking doors, officers must announce their authority, because a contrary rule “must equally hold good in cases of process upon escape, where the party has taken refuge in the house of a stranger. Shall it be said that in such case the officer may break open the outer door of a stranger’s house without declaring the authority under which he acts . . . ?” Thus no distinction was recognized between authority to enter the suspect’s home' and that of a stranger. See also *229Commonwealth v. Reynolds, 120 Mass. 190, 196-197 (1876); cf. State v. Brown, 5 Del. 505 (1854).2

The Court argues that the common-law authorities are not relevant because they do not consider the rights of third parties whose dwellings were entered but only the rights of the arrestee. Ante, at 218-219. This is not so. The authorities typically concern the right of the third party to resist the officer’s attempted entry or the offense committed by the officer against the third party in entering. See, e. g., Commonwealth v. Reynolds, supra; 1 Chitty *57-*58; 2 Hale 117; 1 Russell 519-521.

The basic error in the Court’s treatment of the common law is its reliance on the adage that “a man’s home is his castle.” Though there is undoubtedly early case support for this in the common law, it cannot be accepted as an uncritical statement of black letter law which answers all questions in this area. William Pitt, when he was Prime Minister of England, used it with telling effect in a speech on the floor of the House of Commons; but parliamentary speaking ability and analytical legal ability ought not to be equated with one *230another. It is clear that the privilege of the home did not extend when the King was a party, i. e., when a warrant in a criminal case had been issued. See 1 Russell 520; 2 Gab-bett 141; Burdett v. Abbott, 14 East. 1, 79, 104 Eng. Rep. 501, 531 (K. B. 1811); Commonwealth v. Reynolds, supra, at 196. That a man’s home may be his castle in civil cases, but not in criminal cases, was recognized as far back as the Year Books. See Y. B. 13 Ewd. IV, f. 9a (quoted in Burdett, supra, at 79, 104 Eng. Rep., at 531). The suggestion in the Court’s opinion, ante, at 219, that “ [t]he language of Semayne’s Case . . . suggests that although the subject of an arrest warrant could not find sanctuary in the home of the third party, the home remained a 'castle or privilege’ for its residents,” is thus completely unfounded in the present context.

An officer could break into one’s own home to execute an arrest warrant for the owner, and “so much more may he break open the house of another person to take him,” 2 Hale 117. Entry into the house of a third party to effect arrest was considered to follow a fortiori from the accepted entry into the home of the subject of the arrest warrant himself. This was because those in the home of a third party had no protection against civil process, let alone criminal process. See 1 Chitty *57; 2 Gabbett 142; 2 Hale 117. See generally Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 798, 800-801 (1924). At common law the Sovereign’s key — criminal process — unlocked all doors, whether to apprehend the owner or someone else.

While I cannot subscribe to the Court’s decision today, I will not falsely cry “wolf” in this dissent. The decision rests on a very special set of facts, and with a change in one or more of them it is clear that no separate search warrant would be required even under the reasoning of the Court.

On the one side Payton makes clear that an arrest warrant is all that is needed to enter the suspect’s “home” to effect the arrest. 445 U. S., at 602-603. If a suspect has been living in a particular dwelling for any significant period, say *231a few days, it can certainly be considered his “home” for Fourth Amendment purposes, even if the premises are owned by a third party and others are living there, and even if the suspect concurrently maintains a residence elsewhere as well. In such a case the police could enter the premises with only an arrest warrant. On the other side, the more fleeting a suspect’s connection with the premises, such as when he is a mere visitor, the more likely that exigent circumstances will exist justifying immediate police action without departing to obtain a search warrant. The practical damage done to effective law enforcement by today’s decision, without any basis in the Constitution, may well be minimal if courts carefully consider the various congeries of facts in the actual case before them.

The genuinely unfortunate aspect of today’s ruling is not that fewer fugitives will be brought to book, or fewer criminals apprehended, though both of these consequences will undoubtedly occur; the greater misfortune is the increased uncertainty imposed on police officers in the field, committing magistrates, and trial judges, who must confront variations and permutations of this factual situation on a day-today basis. They will, in their various capacities, have to weigh the time during which a suspect for whom there is an outstanding arrest warrant has been in the building, whether the dwelling is the suspect’s home, how long he has lived there, whether he is likely to leave immediately, and a number of related and equally imponderable questions. Certainty and repose, as Justice Holmes said, may not be the destiny of man, but one might have hoped for a higher degree of certainty in this one narrow but important area of the law than is offered by today’s decision.

The Court cites Coke as a contrary authority, ante, at 217, but Coke’s disagreement with the rule that the constable could “break open doors” extended only to requiring that the suspect sought first be indicted. He wrote that “if the party suspected be indicted, then the sherif by force of the kings writ may demand the party indicted to be delivered; and that not done, he may break open the house, &c. and apprehend the felon . . . .” 4 E. Coke, Institutes *177. Lyons had been indicted, United States v. Gaultney, 606 F. 2d 540, 543 (1979).

The Court strives to minimize the significance of the common-law rule by suggesting that it only applied in cases of “hot pursuit,” ante, at 218. Even if the authorities did impose some “pursuit” requirement, and by no means all did, see, e. g., 2 Hale 117; 1 W. Russell, Crimes and Misdemeanors 521 (2d ed. 1826) (hereafter Russell), the “pursuit” referred to was apparently “the old Common Law mode of pursuing,” by the “hue and cry.” 1 Chitty *26; 4 W. Blackstone, Commentaries 293 (J. Wendell ed. 1847); 2 Hale 98. See Semayne’s Case, 5 Co. Rep. 91a, 91b-93a, 77 Eng. Rep. 194, 196 (K. B. 1603) (“J. beats R. so as he is in danger of death, J. flies, and thereupon hue and cry is made, J. retreats into the house of T. they who pursue him, if the house be kept and defended with force (which proves that first request ought to be made) may lawfully break the house of T. for it is at the K.’s suit”). The “hue and cry,” however, was not the same as “hot pursuit” by officers of the law, and the situations in which it might be invoked — for example, simply- to apprehend a person suspected of a felony — would not be considered exigent circumstances. See 1 Chitty *27-*29.