(concurring).
Resolving this damages suit on qualified immunity grounds is entirely appropriate, because the parties exercised the opportunity to brief this issue, and because the issue of qualified immunity can be “resolved with certitude on the existing record.” United States v. La Guardia, 902 F.2d 1010, 1013 (1st Cir.1990) (appellate court has discretion, in the exceptional case, to “reach virgin issues”); see also Nat'l Ass’n of Social Workers v. Harwood, 69 F.3d 622, 627 (1st Cir. 1995). One would think that a Fourth Amendment right cannot possibly be deemed “clearly established” from the point of view of the defendant police officers when a total of seven judges, including the district court, the appellate panel, and finally the en banc First Circuit court, are themselves in disagreement as to the precise scope of that right.
I write separately, however, only because I believe that my dissenting brothers, in their efforts to show how Steagald v. United *24States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) is controlling, have lost sight of the touchstone of Fourth Amendment law, which is reasonableness. See U.S. Const. Amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ____”) (emphasis added). Our strong and deep-seated intuitions regarding the sanctity of the home obviously inform the determination of what kinds of searches are, and are not, reasonable. We follow the Supreme Court’s lead in these difficult determinations, but where the unique facts of a case do not fall squarely under any one Supreme Court precedent, as here, we cannot help but consider the reasonableness of the particular search at issue.
We know from Santana that it may be reasonable to follow a fleeing suspect from the threshold of a private residence into that residence, without a search warrant, for the purpose of effectuating an arrest. Santana, 427 U.S. at 43, 96 S.Ct. at 2410 (“[A] suspect may not defeat an arrest which has been set in motion in a public place, and is therefore proper under [United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) ], by the expedient of escaping to a private place.”). We also know from Steagald that it is certainly not reasonable to simply enter a third party’s residence without a search warrant, in the absence of exigent circumstances, in the belief that the subject of an arrest warrant is inside. One may seek to subsume the present case under either Santana or Steagald — but either way, this requires that we draw some conclusions regarding their scope. In drawing the outlines of the “exigent circumstances” or “hot pursuit” exception, I find myself naturally turning to reasonableness.
The precise question, then, is whether it is reasonable for police officers, who are acting on an arrest warrant arising from the commission of a jailable offense, who are standing a few feet away from, and face-to-face with, the subject of that arrest warrant (separated only by a transparent outer screen door), who have informed the same subject that he must step outside because he is under arrest, and who then find that the arrestee refuses to cooperate and retreats into the residence, to follow that arrestee into the house in order to effectuate the arrest. (And add to this the fact that although the residence belonged technically to a third party, a suspect’s parents’ residence is often looked upon as approximating his own residence.) Because I believe, on these facts, that the officers’ entry and arrest was reasonable, I conclude that this case falls under the “hot pursuit” rationale discussed in Santana. Let us not lose sight of reasonableness in our efforts to follow precedents that are, on occasion, not clearly determinative.
This said, it may be that this particular damages suit, with its spotty record, is not the best context in which to define those “exigent circumstance” parameters on the merits. I am confident, moreover, that these defendants are fully entitled to qualified immunity. After all, this is not a case in which the police entered an unrelated third party’s home in search of an arrestee without any process at all — such action would clearly violate Steagald — although some members of this court may question whether the process that was followed here was enough to satisfy the Fourth Amendment.
Concurrence follows.