State v. Northover

Judge LANSING

Concurring in the Result.

I join in Part 11(A) and (C) of the foregoing opinion, but as to Part 11(B), I concur only in the result. In my view, Part 11(B) of the lead opinion does not adequately address Northover’s argument that officer Walker exceeded his authority under the warrant, and thereby violated the Fourth Amendment’s guarantee against unreasonable searches, when he walked onto the lawn and looked through a basement window of North-over’s apartment before knocking on the door.

An arrest warrant is not the equivalent of a search warrant with respect to the authority it gives state agents to enter or to search in or around a suspect’s premises. An arrest warrant authorizes an officer’s entry into a suspect’s residence only to the extent necessary to accomplish the purpose of the warrant, which is to effectuate the arrest of the defendant. Thus, both this Court and the Ninth Circuit Court of Appeals have held that when a suspect has answered the officer’s knock on the suspect’s door, and the arrest can be effectuated at the threshold, the officers may not intrude further into the *662house to put the officers at a vantage point from which they can more fully observe the premises. United States v. Albrektsen, 151 F.3d 951 (9th Cir.1998); State v. Coma, 133 Idaho 29, 981 P.2d 754 (1999); State v. Peterson, 108 Idaho 463, 465, 700 P.2d 85, 87 (Ct.App.1985). In Peterson, we stated that an entry greater than that necessary to effectuate the arrest would require a reasonable justification, “such as consent to a search, response to an emergency, hot pursuit of a fleeing felon, for safety purposes where a serious and demonstrable potential for danger exists, or to prevent destruction or removal of evidence.” Id. With this limitation being applicable to the entry of premises pursuant to an arrest warrant, logic would dictate that, concomitantly, an arrest warrant does not automatically give officers carte blanche authority to search the grounds around the home or to intrude onto the private curtilage in order to peer into windows where the officers have not first ascertained whether the suspect will respond to a knock on the door and submit to arrest.

Nonetheless, the majority opinion seems to find such unrestricted search authority to be inherent in an arrest warrant. The majority opinion suggests no limitation upon an officer’s authority to survey the home’s exterior and look through windows so long as the officer has an arrest warrant and reasonable suspicion to believe that the suspect is on the premises. However, the sole authority upon which the lead opinion relies for that proposition, United States v. Morehead, 959 F.2d 1489 (10th Cir.1992), is inapposite. In More-head, the officers had already knocked on the front door and received no response before they walked to the back of the house in search of the suspects named in the arrest warrants. The Tenth Circuit Court’ of Appeals held that this intrusion onto the private curtilage area was justified in order to accomplish execution of a valid arrest warrant. The result in Morehead is clearly correct and consistent with the United States Supreme Court’s holding in Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 1388, 63 L.Ed.2d 639, 661 (1980), that an arrest warrant carnes with it the limited authority to enter a dwelling to search for a suspect. If a suspect has failed to respond to officers who have knocked on the front door and announced their presence, then, most assuredly, officers with an arrest warrant must have authority to search both the interior and exterior areas of the residence where the suspect might be hiding. The Fourth Amendment does not confer upon the subject of an arrest warrant a right to evade arrest by simply refusing to answer the officer’s knock. However, neither Morehead nor the logic underlying that decision answers the issue presented in the present case because the police officers here did not knock first, to ascertain whether Northover would respond, before officer Walker intruded upon the private curtilage and conducted a search by looking through Northover’s window.

Although I am unwilling to join in the majority’s broad ruling, I would not hold that officers with an arrest warrant may never enter the private curtilage, look around thé premises, or look into windows before knocking on the suspect’s door. As we recognized in Peterson, the circumstances of the particular ease, including demonstrable danger to officers or prevention of the destruction or removal of evidence, may legitimize more intrusive police activity. The need to guard against a possible attempt by the suspect to escape through a window or a back door may also justify officers in going to the sides or rear area of a residence before other officers announce their presence at the front entrance.

Northover’s suppression motion raised the question as to whether any such justification for intrusion onto the curtilage existed in his case. His motion was properly denied, however, because Northover’s evidence did not demonstrate the absence of such a justification. As the lead opinion notes, because the officers were acting under the authority of a warrant, the burden was on Northover to prove that officer Walker’s behavior in stepping a few feet off the path to the front door and looking through an uncovered window was unreasonable. In my judgment, he has not met this burden. Northover did not place in evidence the arrest warrants that the officers were executing, and did not otherwise present evidence of the crimes for which the warrants had been issued. There*663fore, neither this Court nor the trial court can discern whether they were crimes of violence that might cause concern for officer safety. Nor did Northover present any evidence as to whether he otherwise had a police record of violence or presenting a threat to officers. In addition, if Northover had a history of destroying or attempting to destroy evidence when approached by officers, then an officer’s surveillance of the interior before knocking on the door might have been justified. Northover did not disprove this possible justification. In positing these hypothetical justifications and pointing out the absence of proof to the contrary, I do not suggest that a defendant must prove a negative, i.e., disprove all possible theoretical justifications for the officers’ conduct. Rather, the defendant’s burden can be met by simply posing a direct question to the officers at the suppression hearing asking them to explain why they took the challenged action. If their response does not present a valid reason for the intrusion, the defendant’s burden will be met. Northover did not make this inquiry, and therefore did not meet his burden of proving that officer Walker’s conduct was unreasonable and hence a violation of the Fourth Amendment. Accordingly, I concur with the affirmance of the district court’s order denying Northover’s suppression motion.