United States v. Bill McNeal

CONTIE, Senior Circuit Judge,

dissenting.

I.

I disagree with the majority opinion, because I believe it eviscerates the protection of the Fourth Amendment that an arrest shall be based on probable cause. The majority renders this constitutional guarantee meaningless by making the following three assertions — assertions for which I can find no authority: (1) if a defendant lacks an expectation of privacy in the place where he is arrested, he lacks standing to contest whether his arrest was based on probable cause; (2) a Terry stop, based on the reasonable suspicion provided by an informant’s tip, may take place in a private residence even though the police have not gained lawful entry into the residence; and (3) under the “totality of the circumstances” test of Illinois v. Gates, the reasonable suspicion provided by an informant’s tip may be corroborated with observations the police make after unlawfully entering a private residence in order to provide the degree of probable cause needed to make an arrest. I will deal with each of these propositions in turn.

A. Standing

I disagree with the district court and majority’s conclusion that if a defendant does not have a reasonable expectation of privacy in the premises in which he is arrested, he lacks standing to contest whether his arrest was based on probable cause.

At the conclusion of its opinion, the district court stated, “Because the Court holds that the defendant may not challenge the search of Ms. Ward’s apartment, it need not determine whether the officers had probable cause to believe that a crime was being committed in the apartment or that exigent circumstances existed.” United States v. McNeal, 735 F.Supp. 738, 743 (1990).1 The majority opinion states that the district court’s “ ‘standing’ resolution [is] dispositive of the appellant’s motion to suppress.” I disagree. The district court and majority fail to understand that a defendant does not need an expectation of privacy in the place where he is arrested in order to give him standing to argue that his arrest was not based on probable cause. An arrest must always be based on probable cause, whether it occurs in a public place, in the defendant’s home, or in a third party’s residence in which the defendant lacks a reasonable expectation of privacy. See United States v. Watson, 423 U.S. 411, 423-24, 96 S.Ct. 820, 828, 46 L.Ed.2d 598 (1976); Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 1388, 63 L.Ed.2d 639 (1980); Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. at 1687 n. 1, 109 L.Ed.2d 85.2 *1081Even if appellant McNeal lacks a reasonable expectation of privacy in Tina Ward’s apartment, he still has “standing” to contend that the officers lacked probable cause to arrest him. Before the district court, appellant argued that his arrest violated the Fourth Amendment because the informant’s tip did not provide probable cause to arrest him.3 Moreover, the evidence he sought to suppress was the evidence found during the search of his person and property, not the search of Tina Ward’s apartment. As the Supreme Court made clear in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), an expectation of privacy in a third person’s dwelling is necessary to give standing to contest the validity of the search of the premises, but is not necessary to contest the “lawfulness of the seizure of evidence or the search [of the person ] if [his] own property [is] seized during the search.” Id. at 142 n. 11, 99 S.Ct. at 430 n. 11. One does not lose one’s own Fourth Amendment rights to contest the search of one’s person or property or to argue that an arrest is not based on probable cause merely because one is arrested in a third party’s residence. Thus, even if appellant McNeal were only a casual visitor in Tina Ward’s apartment and did not have standing to contest the search of the premises, he has standing to contest whether or not there was probable cause to believe that a crime was being committed, which would warrant the arrest and detention of his person.

B. Terry stop

I disagree with the majority’s conclusion that a Terry stop may take place in a private residence without the police first obtaining lawful entry into the residence. The district court in a footnote acknowledged that appellant McNeal could challenge the search of himself and his personal belongings, but concluded that the informant’s tip gave reasonable suspicion to conduct a “Terry stop” to detain and frisk him. McNeal, 735 F.Supp. at 742 n. 7.4 The district court and majority failed to recognize that a Terry stop based on the reasonable suspicion provided by an informant’s tip is permissible inside a private residence only if the police first gain lawful entry into the residence. The reasonable suspicion standard was developed in the context of street encounters between citizens and police officers to justify a stop and frisk for investigatory purposes when a person appears to be engaging in suspicious activity. Terry v. Ohio, 392 U.S. 1, 20-23, 88 S.Ct. 1868, 1879-81, 20 L.Ed.2d 889 (1968). In the present case, the district court and the majority attempt to transfer a doctrine developed in the context of police encounters with citizens in public places — the “Terry stop doctrine” — to a private residence. The majority states that under the Fourth Amendment, the reasonable suspicion provided by an informant’s tip may be used to justify a Terry stop within a private residence as long as the person the police wish to stop and frisk does not have a reasonable expectation of privacy in the premises. I do not agree. The Supreme Court has never held that after an unjustified, warrantless entry into a private residence, a Terry stop may be conducted based on reasonable suspicion provided by an informant’s tip. The Supreme Court developed the Terry stop doctrine and the reasonable suspicion standard in the context of public encounters between police and citizens where no third party privacy rights would be infringed upon. I *1082believe that the Terry stop doctrine is limited in its application to these public encounters and that the only time a Terry stop is permissible within a private residence is when the police are already lawfully on the premises.

If appellant McNeal had been in the type of public place in which the Terry stop doctrine has traditionally been applied, perhaps the informant’s tip would have provided reasonable suspicion to stop and frisk him. See Adams v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). However, appellant McNeal was not in a public place, but in a private residence, and he had never been observed by the police engaging in any suspicious criminal activity. Therefore, the entire rationale for making a Terry stop based on the informant’s tip simply does not apply in the present case. The majority seeks to obliterate the walls of Tina Ward’s apartment, indicating that a private residence is no different than a bar, airport, or bus terminal for the purpose of making a Terry stop if the suspect does not have a reasonable expectation of privacy in the premises. There is absolutely no authority for this extreme position. To the contrary, the court in United States v. Flippin, 924 F.2d 163, 166 (9th Cir.1991) stated, “When the police have lawfully entered a dwelling and have a reasonable suspicion that a suspect is armed, a Terry pat down for weapons is permissible” (emphasis added). In Flippin, the court found that the police had a legitimate right to enter based on consent. Id. at 165-66. In contrast, in the present case, the officers pushed their way into Tina Ward’s apartment without her consent and in spite of the fact that she tried to prevent their entry by demanding to see a warrant. Implicit in the reasoning of Flippin is that a Terry pat down for weapons would not have been permissible unless lawful entry into the private residence had first been obtained. See also, United States v. Salazar, 945 F.2d 47 (2nd Cir.1991) (a Terry stop of a visitor to a private apartment was permissible because police were lawfully on the premises when he arrived).

The Supreme Court has never extended the Terry doctrine based on the reasonable suspicion standard within the confines of a private residence except when lawful entry into the residence has already been obtained. In Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), the Supreme Court stated that in executing an arrest warrant on the defendant, a protective sweep of the residence in which he was arrested could be made based on reasonable suspicion. Id. 110 S.Ct. at 1098. However, in Buie, the police were lawfully on the premises because an arrest warrant based on probable cause had already been obtained. Id. at 1095. In the present case, I believe a search of appellant McNeal’s person and belongings is permissible only if the police had probable cause to enter the apartment to arrest him, as was the case in Buie. In other words, the reasonable suspicion that perhaps would be sufficient to make a Terry stop in a public place cannot be used to justify the seizure of a suspect, who is in a private residence, unless legal entry into the residence is first obtained.

The majority’s conclusion that a Terry stop may be made in a private residence as long as the defendant lacks a reasonable expectation of privacy in the residence is inconsistent with this court’s holding in United States v. Prior, 941 F.2d 427 (6th Cir.1991) in which Judge Merritt held that a seizure had correctly been characterized as a Terry stop because it occurred in a public area of a housing project and the police had observed the suspect engaging in suspicious behavior while in the public area. This opinion’s emphasis on the public nature of the area in which the defendant was seized would be unnecessary if it were true, as the majority contends, that it does not matter whether a Terry stop occurs in a public or a private place if the suspect lacks a reasonable expectation of privacy in the area where he is seized.

In the Supreme Court’s development of the Terry stop doctrine and reasonable suspicion standard, the determining factor was the fact that the encounter between police and citizen occurred in a public place per se. The Supreme Court stated in Terry, *1083“But we deal here with an entire rubric of police conduct — necessarily swift action predicated upon the on-the-spot observations of the officers on the beat — which historically has not been, and as a practical matter could not be, subjected to the warrant procedure.” 392 U.S. at 20, 88 S.Ct. at 1879 (emphasis added). In the present case, the police made no on-the-spot observations of appellant while on the beat. Even if appellant McNeal lacks a reasonable expectation of privacy in Tina Ward’s apartment, this lack does not turn Tina Ward’s apartment into a public place similar to a bar, airport, or hallway of a housing project, as the majority implies. The relevant issue in regard to the applicability of the Terry stop doctrine is whether Tina Ward’s apartment is a public or a private place per se — not whether appellant had a reasonable expectation of privacy in the apartment. Because Tina Ward’s apartment is a private residence, I do not believe the Terry stop doctrine is applicable in the present case unless the officers were lawfully on the premises.

C. Totality of the Circumstances Test

I believe the majority distorts “the totality of the circumstances” test, which the Supreme Court developed in order to determine whether or not an informant’s tip provides probable cause to make a search or an arrest. Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983). The majority argues that under this test, the reasonable suspicion provided by an informant’s tip may be corroborated by observations the police make after illegally entering a private residence. The cases upon which the majority relies do not support this argument. In Illinois v. Gates, 462 U.S. at 230-31, 103 S.Ct. at 2328, McCray v. Illinois, 386 U.S. 300, 304, 87 S.Ct. 1056, 1059, 18 L.Ed.2d 62 (1967), and Draper v. United States, 358 U.S. 307, 311-13, 79 S.Ct. 329, 332-33, 3 L.Ed.2d 327 (1959), the informants’ tips were corroborated by observations the police made of the defendants in public places. In these cases, the police did not illegally enter a private residence based merely on the reasonable suspicion provided by an informant’s tip and then develop corroborating evidence once inside the residence, as the majority implies.

The majority concedes that before entering the apartment, the uncorroborated informant’s tip provided reasonable suspicion at best. I believe that in the circumstances of this case, the corroboration of the informant’s tip had to take place prior to the officers’ entry into the apartment in order to provide probable cause to enter and arrest defendant. For these reasons, I believe that appellant’s arrest in Tina Ward’s apartment is constitutional only if it was based on probable cause and that probable cause to arrest had to exist prior to entry into the apartment.

II.

I will now address the issue of whether or not appellant’s arrest was based on probable cause. In the present case, Inspector Hartman, based on an informant’s tip stating that there was a person in apartment 104N named Bill, who was armed, dangerous, and carrying drugs, believed that he had probable cause to enter the apartment to arrest “Bill.” I disagree for the following reasons.

In Illinois v. Gates, 462 U.S. at 238, 103 S.Ct. at 2332, the Supreme Court adopted a “totality-of-the-circumstances” approach to determine whether an informant’s tip establishes probable cause, “whereby the informant’s veracity, reliability, and basis of knowledge are highly relevant.” Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 2413-14, 110 L.Ed.2d 301 (1990). In the present case, the informant’s tip consisted of the bare assertion that a person named Bill was in the apartment, was armed, and had drugs. Although Inspector Hartman testified that the informant had provided reliable information in the past, there was no corroboration of the informant’s tip in order to verify whether or not it was an accurate statement. Moreover, there was no indication of the informant’s basis of knowledge. The officers did not know and did not ask whether this information was based on first-hand knowledge or on hear*1084say, whether the informant had seen drugs or a weapon on appellant or in the apartment, or whether the informant was involved in dealing drugs or had prior drug convictions. Although Inspector Hartman vouched for the informant’s reliability in the past, there was absolutely no indication how the informant gained his information about “Bill.” Therefore, the informant’s statement is not commensurate with the criteria usually required to establish probable cause. The mere statement by an informant, even one that has provided reliable information in the past, that someone is in an apartment with drugs and a weapon is not sufficient to constitute probable cause for an arrest without more specific corroboration of drug activity and without any indication whatsoever of the informant’s basis of knowledge.

For example, in United States v. MacDonald, 916 F.2d 766 (2nd Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1071, 112 L.Ed.2d 1177 (1991), the court held that once a police officer has first-hand knowledge of the presence of drugs and weapons in an apartment, probable cause and exigent circumstances to enter the apartment without a warrant were present. Id. at 770. In MacDonald, after an informant had alerted the New York Drug Enforcement Task Force about a possible narcotics operation in a Manhattan apartment building, the Task Force established surveillance outside the apartment building and observed numerous indications that a retail narcotics exchange was being operated. One of the agents attempted to make a buy, observed men with weapons inside the apartment, and smelled marijuana smoke when the door was opened. Id. at 768. The court determined that it was at this point that probable cause and exigent circumstances to enter the apartment without a warrant existed. Id. at 770. In contrast, in the present case, no surveillance was conducted, no one attempted to make a buy, and after Tina Ward opened her door, none of the officers observed drugs or weapons in the apartment.

In United States v. Sangineto-Miranda, 859 F.2d 1501, 1508 (6th Cir.1988), this court found that probable cause existed to enter a dwelling to make a warrantless arrest based on exigent circumstances after a reliable informant furnished law enforcement officials with detailed information regarding the defendant’s efforts to sell cocaine, much of that information was verified by police recordings of the informant’s negotiations with the defendant in the apartment, and the informant stated that he had observed cocaine in the apartment. In contrast, in the present case, the information provided by the allegedly reliable informant was not corroborated or verified, the information was not detailed, and the informant did not state that he had seen drugs or a weapon on appellant or in the apartment.

Inspector Hartman’s statement that he saw someone peering out of the window of apartment 104N is not sufficient corroboration of the informant’s tip to constitute probable cause to make an arrest. Because the police, who had been at the King Kennedy Project for over half an hour, were stopping and frisking people inside the courtyard, the fact that someone was allegedly watching them out of the apartment window was not an unusual circumstance. Inspector Hartman conceded that he did not know of any circumstances indicating that the people inside the apartment were afraid for their lives, and that when he stood outside the apartment door, he heard no toilets and water flushing and no scurrying around to indicate the imminent destruction of evidence. Moreover, Inspector Hartman stated that the windows of the apartment were secured with heavy steel mesh screening and that there was no back door to the apartment. After he knocked on the door, there was no suggestion of danger to the residents within the apartment that would give probable cause to enter the apartment to make an arrest. Instead, Ms. Ward answered the door and asked if the police had a warrant. Her assertion of her Fourth Amendment right to be free of unreasonable searches and seizures does not provide probable cause to enter the apartment “to secure it.” The officers did not observe any indication of drug activity once the apartment door had *1085been opened, but instead observed another woman sitting at the kitchen table. The majority states that appellant was seen retreating down the hallway into a rear bedroom. This is not true. The record indicates that upon entry into the apartment, the officials did not see appellant or any signs of danger or drug activity and that appellant was already located in a rear bedroom. Therefore, I believe the officers lacked probable cause to enter the apartment to make an arrest.

III.

To conclude, I believe that at best the informant’s tip provided reasonable suspicion to stop and frisk appellant McNeal if he had been in a public place. Because appellant was in a private residence, the Terry stop doctrine does not apply. The majority’s extension of the Terry stop doctrine into the confines of a private residence eviscerates the probable cause requirement of the Fourth Amendment. It blurs the distinction between a Terry stop based on reasonable suspicion provided by an informant’s tip, which is allowed in a public place, and an arrest in a private home, which must be based on probable cause to believe that a crime has been committed.

For these reasons, I would reverse the decision of the district court. Because the informant’s tip did not provide probable cause to arrest appellant, the officers had no justification for conducting a pat-down search incident to arrest of his person and belongings. Therefore, the drugs, weapon, and money found on appellant’s person and property were the contaminated fruit of the unlawful arrest and should not have been admitted into evidence. See Taylor v. Alabama, 457 U.S. 687, 694, 102 S.Ct. 2664, 2669, 73 L.Ed.2d 314 (1982); Dunaway v. New York, 442 U.S. 200, 218-19, 99 S.Ct. 2248, 2260, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 605, 95 S.Ct. 2254, 2262, 45 L.Ed.2d 416 (1975). The motion to suppress should have been granted.

. The district court was correct in stating that a reasonable expectation of privacy in Tina Ward’s apartment would be necessary for appellant to contest whether exigent circumstances justified a warrantless arrest. Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 1687, 109 L.Ed.2d 85 (1990). However, in Olson, the Supreme Court did not hold that a defendant needs an expectation of privacy in the place where he is arrested in order to contest whether his arrest was based on probable cause. In Olson, the Supreme Court stated that the appellate court had not reviewed the trial court’s determination that the police had probable cause for the arrest. Therefore, the Supreme Court judged the case on the assumption that there was probable cause. Id. 110 S.Ct. at 1687 n. 1.

. Contrary to the majority’s assertion, I am not seeking a pronouncement that would create an irrebuttable presumption that any person confronted upon the premises of a third party would have an inherent expectation of privacy in the third person's private place. I am merely arguing that an arrest must be based on probable cause no matter where it occurs, which is not a novel or an unprecedented argument. There is no pronouncement by the Supreme *1081Court in Rakas, Satvucci and progeny, that before contesting an arrest that takes place in a private residence, a defendant must first prove he has an expectation of privacy in that residence.

. Contrary to the majority’s assertion, defendant raised this issue at the trial court level. See Transcript of Proceeding Before the ... [District Court] on Friday, April 20, 1990, Record Entry No. 43 at pp. 62-65.

. I am not attempting to distort the district court’s opinion, as the majority asserts. I disagree with two separate conclusions of the district court. The first conclusion that I disagree with is that if a person lacks a reasonable expectation of privacy in the place where he is arrested, there is no need to determine if the arrest was based on probable cause. The second conclusion with which I disagree is that the search of appellant’s person and property was justified as a Terry stop.