Valdez v. McPheters

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 5 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
FOR THE TENTH CIRCUIT
_______________________________

ROSANNA VALDEZ, *
*
Plaintiff-Appellant, *
*
v. * No. 97-4057
*
SAMUEL McPHETERS, an agent of the *
Federal Bureau of Investigation, and *
GREG LITTLEWHITEMAN, an officer of *
the Bureau of Indian Affairs, *
*
Defendants-Appellees. *

_______________________________

Appeal from the United States District Court
for the District of Utah
(D.C. No. 94-C-523J)

_______________________________

Stephen C. Clark (Pamela Martinson on the brief) of American Civil Liberties Union of
Utah Foundation, Inc., Salt Lake City, Utah, for Plaintiff-Appellant.

Paul Michael Brown, Torts Branch, Civil Division, Washington, D.C., (Barbara L.
Herwig, Appellate Staff, Civil Division, Washington, D.C., with him on the brief) for
Defendants-Appellees.

_______________________________
Before EBEL and BRISCOE, Circuit Judges, and MARTEN,* District Judge.

_______________________________

MARTEN, District Judge.

_______________________________

On December 7, 1993, FBI Special Agent Samuel Michael McPheters and Bureau

of Indian Affairs ("BIA") Police Officer Gregory Littlewhiteman arrived at the plaintiff

Rosanna Valdez's residence in LaPoint, Utah. The officers told the plaintiff that there

was an outstanding felony warrant for the arrest of her son, Raymond Nathaniel Valdez.

McPheters told the plaintiff they would like to come inside to see if her son was present.

There is a dispute as to whether the plaintiff consented to the officers' entry.

According to the officers, the plaintiff told them to "go ahead." The plaintiff states that

she told the officers they could not search for her son without a search warrant.

Special Agent McPheters looked through the residence while Officer

Littlewhiteman remained with several other persons in the living room area. When they

were unable to find Raymond Valdez, the officers left the residence and continued their

investigation. They spoke with Sherman Dubois, who told the officers that he had seen

Raymond Valdez at the residence earlier in the day. The officers then returned to the

Valdez residence, but were again unable to find Raymond.

* Honorable J. Thomas Marten, District Court Judge, District of Kansas, sitting by
designation.

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 On December 27, Raymond Valdez surrendered to authorities and was placed in

the Uintah County jail.

Plaintiff Rosanna Valdez subsequently instituted the present action, alleging the

defendants McPheters and Littlewhiteman violated her constitutional rights against

unreasonable search and seizure. On March 14, 1996, the District Court granted the

defendants' Motion for Summary Judgment. This appeal followed.

Special Agent Samuel Michael McPheters has worked for the FBI for 27 years. At

the time of the events giving rise to this litigation, he served as Resident Agent in Charge

of the FBI's Vernal, Utah office. Officer Gregory Littlewhiteman is a BIA Police Officer

assigned to the Uintah and Ouray Agency, headquartered at Ft. Duchesne, Utah.

Littlewhiteman is an enrolled member of the Oglala Sioux tribe. As a result of his job

and participation in community outreach activities, Littlewhiteman has become personally

acquainted with many of the people who live on or around the Uintah-Ouray reservation.

In November of 1993, the Salt Lake City Police Department obtained an arrest

warrant for Raymond Nathaniel Valdez. Valdez was charged by information with one

count of burglary (a second degree felony), and one count of theft (a third degree felony).

The Salt Lake City police requested assistance from the FBI in apprehending Valdez,

advising the agency that "VALDEZ comes into the city on weekends, does a burglary or

two then goes back to the Indian Reservation at LaPoint, Utah. VALDEZ's mother,

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ROSANNE VALDEZ, lives at LaPoint." The police also provided the agency with the

telephone number for the Valdez residence. (R. 8, at 1).

Rosanna Valdez, the plaintiff, lives in Uintah County, near the town of LaPoint,

Utah, with her husband Raymond Valdez, Sr., and several other family members. The

residence has a telephone, the number matching that given by the Salt Lake City police to

the FBI. An attorney fact sheet filed with the warrant lists Raymond, Jr.'s physical

characteristics and denominates his address as "transient." (R. 7).

The FBI's Fugitive Task Force notified Special Agent McPheters of the state arrest

warrant for Raymond Valdez on December 7, 1993. McPheters drove to the BIA police

headquarters in Ft. Duchesne, where he asked Lt. Ed Reynolds about Valdez's

whereabouts. Reynolds told McPheters that Valdez was living at the Valdez residence in

LaPoint. Reynolds assigned Officer Littlewhiteman to assist in finding Valdez.

Littlewhiteman told McPheters that Valdez was living at the Valdez residence in

LaPoint. Littlewhiteman based this conclusion on information he had gathered during

his police duties. This information included the following:

1) On September 27, 1993, while being booked on a drug charge, Valdez stated in

Littlewhiteman's presence that he lived with his mother in LaPoint.

2) Littlewhiteman knows Valerie Tom, who is a friend, neighbor and relative of

his wife. In the fall of 1993, Tom was married to Odorico Palesides. Littlewhiteman had

twice arrested Palesides on spouse abuse charges during this time period. During the

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course of making these arrests, Littlewhiteman learned that Palesides was an associate of

Raymond Valdez. He also knew by sight Tom's Toyota pickup truck. Tom told

Littlewhiteman that Palesides used the pickup truck to drive to the Valdez residence to

meet Raymond Valdez, and that the two would go out drinking. This information

corresponded with Littlewhiteman's observations during his routine patrols, having seen

the pickup truck on several occasions at the Valdez residence during October and

November.

3) On December 3, 1993, Roosevelt City Police Officer Steve Hooley told

Littlewhiteman that Raymond Valdez was living at the Valdez residence in LaPoint.

4) On December 4, 1993, Littlewhiteman investigated a single-vehicle accident

about a quarter mile from the Valdez residence. He recognized the vehicle as Valerie

Tom's Toyota truck. The vehicle was abandoned, but two star-shaped imprints on the

windshield indicated that a driver and a passenger had been in the truck at the time of the

accident. Footprints led from the vehicle in the direction of the Valdez residence.

There is a dispute about what one of the neighbors told Littlewhiteman in

connection with the accident. According to Littlewhiteman, Bonnie Hackford Murphy

told him she had seen the truck at the Valdez residence earlier in the day, driven by a

Mexican male, and that she had previously seen this person in the company of Raymond

Valdez. The plaintiff has submitted an affidavit from Murphy denying she made these

comments to Littlewhiteman. It is undisputed, however, that the accident occurred in

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close proximity to the Valdez residence, and that Littlewhiteman knew the vehicle was

used by a friend of the suspect under investigation.

5) It is uncontroverted that Littlewhiteman knew that Raymond Valdez was

unemployed, that he liked to stay out late at night drinking, that he sometimes abused

drugs including heroin and cocaine, and that he was suspected of several nighttime

burglaries. From the knowledge of his lifestyle gained during the course of his normal

law enforcement duties, Littlewhiteman believed that Valdez would be at the Valdez

residence about noon on December 7, 1993.

The district court granted the defendants' summary judgment motion, finding under

Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 1388, 63 L.Ed.2d 639 (1980)

and Steagald v. United States, 451 U.S. 204, 214 n. 7, 101 S.Ct. 1642, 1649 n. 7, 68

L.Ed.2d 38 (1981), the legality of the defendants' entry into the Valdez residence was

governed by the "reasonable belief of an officer, qualified immunity as to whether a

person is in a residence at a place and present there." (R. 5, Tr. at 42). The court then

concluded that there were "sufficient grounds upon which a reasonable officer could form

that belief [and] therefore qualified immunity does apply." Id. at 42-43.

In the present appeal, Valdez contends that the defendants' entry into her residence

violated her rights protected under the Fourth Amendment. A person's expectation of

privacy in her residence "is plainly one that society is prepared to recognize as

justifiable." United States v. Karo, 468 U.S. 705, 714, 104 S.Ct. 3296, 3303, 82 L.Ed.2d

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530 (1984). "At the very core [of the Fourth Amendment] stands the right of a man to

retreat into his own home and there be free from unreasonable governmental intrusion."

Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 683, 5 L.Ed.2d 734 (1961).

In order to protect this important interest, the Supreme Court has emphasized that the

Fourth Amendment draws "a firm line at the entrance to the house," prohibiting a

warrantless entry except in limited circumstances. Payton, 445 U.S. at 590, 100 S.Ct. at

1382.

One of the circumstances which may permit an entry into a residence without a

search warrant is the existence of a valid arrest warrant for a suspect who is believed to

live in the residence. This is because "an arrest warrant founded on probable cause

implicitly carries with it the limited authority to enter a dwelling in which the suspect

lives when there is reason to believe the suspect is within." Payton, 445 U.S. at 603, 100

S.Ct. at 1388. "Because an arrest warrant authorizes the police to deprive a person of his

liberty, it necessarily also authorizes a limited invasion of that person's privacy interest

when it is necessary to arrest him in his home. " Steagald, 451 U.S. at 214 n. 7. 101 S.Ct.

at 1649 n. 7. Absent exigent circumstances, however, an arrest warrant by itself does not

authorize entry into the home of a third party. Id., at 215.

The majority of circuits which have addressed the issue have agreed that, under

Payton, police officers entering a residence pursuant to an arrest warrant must

demonstrate a reasonable belief that the arrestee lived in the residence, and a reasonable

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belief that the arrestee could be found within the residence at the time of the entry. See

United States v. Route, 104 F.3d 59, 62 (5th Cir.) ("A valid arrest warrant carries with it

the implicit but limited authority to enter the residence of the person named in the warrant

in order to execute the warrant, where there is 'reason to believe' that the suspect is

within"), cert. denied, --- U.S. ----, 117 S.Ct. 2491, 138 L.Ed.2d 998 (1997); United

States v. Risse, 83 F.3d 212, 216 (8th Cir.1996) ("officers executing an arrest warrant

must have a 'reasonable belief that the suspect resides at the place to be entered ... and

[have] reason to believe that the suspect is present' at the time the warrant is executed");

United States v. Lauter, 57 F.3d 212, 215 (2nd Cir.1995) ("the proper inquiry is whether

there is a reasonable belief that the suspect resides at the place to be entered ... and

whether the officers have reason to believe that the suspect is present"); United States v.

Edmonds, 52 F.3d 1236, 1248 (3d Cir.1995) (although "the information available to the

agents clearly did not exclude the possibility that [the suspect] was not in the apartment,

the agents had reasonable grounds for concluding that he was there"), vacated in part on

other grounds, 52 F.3d 1236, 1251 (3d Cir.1995), cert. denied U.S. 117 S.Ct. 295,

136 L.Ed.2d 214 (1996); United States v. Magluta, 44 F.3d 1530, 1535 (11th Cir.) ("the

facts and circumstances within the knowledge of the law enforcement agents, when

viewed in the totality, must warrant a reasonable belief that the location to be searched is

the suspect's dwelling, and that the suspect is within the residence at the time of entry"),

cert. denied, --- U.S. ----, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995). This court has

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recently agreed in an unpublished decision, Anderson v. Campbell, 1996 WL 731244

(10th Cir. 1996).

Only one circuit has suggested a higher knowledge standard on the part of law

enforcement officers. In United States v. Harper, 928 F.2d 894 (9th Cir. 1991), the Ninth

Circuit concluded that "the police may enter a home with an arrest warrant only if they

have probable cause to believe the person named in the warrant resides there." The court

provided no rationale for adopting this standard, merely citing its prior decision in Perez

v. Simmons, 900 F.2d 213 (9th Cir. 1990), amending 884 F.2d 1136 (9th Cir. 1989).1

1
Perez, however, does not directly support a determination that "probable cause"
rather than "reasonable grounds" is the appropriate standard. In its initial opinion, the court
in Perez was concerned by evidence that suggested the person named in the warrant, the
plaintiff's brother, was at most a temporary guest in his sister's searched apartment, and at
most "may have occasionally spent the night there." 884 F.2d at 1141. The Perez court
initially wrote that "if Albert did not actually reside in the apartment, the search was illegal
under Steagald." 884 F.2d at 1140. After the government's petition for rehearing, the court
modified this standard, adding the emphasized language
if the officers did not have reasonable grounds for believing that Albert resided
in the apartment, the search was illegal under Steagald.
900 F.2d at 213, typographical error corrected, 998 F.2d 775 (emphasis added).
Similarly, the court initially wrote:
Unless a jury finds that Albert was an actual co-resident of the apartment, and
that the police had reasonable grounds for believing that Albert was in the
apartment at the time, the search was in violation of Irma Perez's constitutional
rights.
884 F.2d at 1142 (citation omitted). This was subsequently modified to:
Unless a jury finds that the officers had reasonable grounds for believing that
Albert was a co-resident of the apartment, and for believing that Albert was in
the apartment at the time, see Payton, 445 U.S. at 603 100 S.Ct5. at 1388, the
search was in violation of Irma Perez's constitutional rights.
900 F.2d at 213 (emphasis added).
The actual status of law in the Ninth Circuit is open to question. In United States v.

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 This court finds the defendants were entitled to enter the Valdez residence if there

was a reasonable basis for believing that Raymond Valdez, Jr. both (1) lived in the

residence and (2) could be found within at the time of entry. As to the level of knowledge

required by the officers, the Supreme Court in Payton explicitly indicated that entry is

permissible so long as there is "reason to believe the suspect is within." 445 U.S. at 603.

There is no substantial reason to believe that the standard of knowledge should be

different or greater when it comes to the other prong of the Payton test, whether the

suspect resides at the house. It would be curious indeed if the two prongs of the test were

governed by two different standards of proof.

More importantly, requiring actual knowledge of the suspect's true residence

would effectively make Payton a dead letter. In the real world, people do not live in

individual, separate, hermetically-sealed residences. They live with other people, they

move from one residence to another. Requiring that the suspect actually reside at the

residence entered would mean that officers could never rely on Payton, since they could

never be certain that the suspect had not moved out the previous day and that a Bivens or

a 42 USC§1983 claim would then be made against them by another resident. The better

rule is that both prongs of the Payton test are governed by the same test — reasonable

Albrektsen, 151 F.3d 951 (9th Cir. 1998) the court recently cited with approval both Route
and Risse for the proposition that officers executing an arrest warrant must have "some
reason to believe that the defendant might live at and be present within the premises" entered.
The court makes no mention of the existence of any higher standard of knowledge.

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belief on the part of the officers. The officers' belief need not prove true in fact, it is

sufficient if the belief was objectively reasonable at the time of entry. United States v.

Risse, 83 F.3d 212, 216 (8th Cir.1996). See Anderson, 1996 WL 731244 at **2 ("the

officers' belief that Steven was residing at home, while perhaps not correct, was

reasonable").

Payton and Steagald cannot be understood to divide the world into residences

belonging solely to the suspect on the one hand, and third parties on the other. The rule

announced in Payton is applicable so long as the suspect "possesses common authority

over, or some other significant relationship to," the residence entered by police. Risse, 83

F.3d at 217. Thus, entry into a residence pursuant to an arrest warrant is permitted when

"the facts and circumstances within the knowledge of the law enforcement agents, when

viewed in the totality, must warrant a reasonable belief that the location to be searched is

the suspect's dwelling, and that the suspect is within the residence at the time of entry."

Magluta, 44 F.3d at 1535.

Turning to the second prong of the Payton test, courts "must be sensitive to

common sense factors indicating a resident's presence." Direct surveillance or the actual

viewing of the suspect on the premises is not required. Magluta, 44 F.3d at 1535, 1538.2

2
While surveillance certainly may bolster a Payton entry, the cases fail to reveal any
requirement of substantial prior surveillance of a residence prior to entry. Compare Harper,
928 F.2d at 896, (police conducted "intermittent surveillance"), and Edmonds, 52 F.3d at
1248 (police surveilled apartment complex for less than three hours and saw all the cars
depart except for a black Mustang associated with the arrestee), with Lauter, 57 F.3d at 213

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Indeed, the officers may take into account the fact that a person involved in criminal

activity may be attempting to conceal his whereabouts. Id., at 1538. The suspect's

presence may be suggested by the presence of an automobile, United States v. Morehead,

959 F.2d 1489, 1496 (10th Cir. 1992), aff'd on other grounds sub nom., United States v.

Hill, 971 F.2d 1461 (10th Cir. 1992) (en banc); United States v. Beck, 729 F.2d 1329,

1331-32 (11th Cir. 1984); Magluta, 44 F.3d at 1537-38; the time of day, United States v.

Terry, 702 F.2d 299, 319 (2d Cir.), cert. denied, 461 U.S. 931, 104 S.Ct. 482, 77 L.Ed.2d

304 (1983) (reasonable to believe suspect would be at home at 8:45 a.m. on Sunday

morning); Edmonds, 52 F.3d at 248 (entry at 6:45 a.m. was "early enough that it was

unlikely someone living in the apartment would have already departed for the day");

Anderson, 1996 WL 731244 ("the officers came to the home at 8:45 p.m., on a cold,

snowy evening, a time when a person would reasonably be expected to be at home");

observing the operation of lights or other electrical devices, Route, 104 F.3d at 63

(officers heard television set left on inside residence after third person left residence);

Magluta, 44 F.3d at 1538 (observations that "the lawn was manicured and a porch light

was on" gave "no indication that Magluta departed, such as for work or the like");

Morehead, 959 F.2d at 1496 (holding that an illuminated light provided a reasonable basis

for officers to believe the subject of an arrest warrant was within the building); and the

(facts suggest no prior surveillance of the residence) and United States v. Beck, 729 F.2d,
1329, 1331-32 (11th Cir. 1984) (same).

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circumstances of a suspect's employment, Lauter, 57 F.3d at 215 (officer's conduct

reasonable since they knew the suspect "was unemployed and typically slept late");

United States v. Woods, 560 F.2d 660, 665 (5th Cir. 1977), cert. denied, 435 U.S. 906, 98

S.Ct. 1452, 55 L.Ed.2d 497 (1978) (reasonable to believe suspect would be "at his place

of abode, especially at 8:30 in the morning for a man not known to be working"). And

the officers may consider an absence of evidence the suspect is elsewhere. See Terry, 702

F.2d at 319 (one factor in supporting reasonableness was twelve-year-old son's failure to

indicate father was not inside). No single factor is, of course, dispositive. Rather, the

court must look at all of the circumstances present in the case to determine whether the

officers entering the residence had a reasonable belief that the suspect resided there and

would be found within.3

In the present case, the Salt Lake City Police Department had informed the FBI

that Raymond "comes into the city on weekends, does a burglary or two then goes back to

the Indian reservation at LaPoint, Utah." BIA Lt. Reynolds told defendant McPheters

3
One consideration which is not relevant to this determination involves information
gained after the entry. Since the focus is the reasonableness of the officers' actions, evidence
which is obtained after the entry cannot be used to establish the legality of those actions or,
conversely, invalidate an otherwise reasonable entry. Here, for example, when Raymond
finally surrendered himself on December 27, 1993, he was asked for his address while he was
being booked. He responded by stating that he lived at the Valdez residence in LaPoint.
Since this information was not known to the defendants at the time of the entry into the
Valdez residence, it cannot retroactively justify the defendants' conduct.

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that Raymond lived with his mother. Raymond himself had told BIA Officer

Littlewhiteman in September that he lived with his mother. Littlewhiteman also had seen

a white pickup truck at the Valdez house, which he knew was driven by a friend of

Raymond's.4 Another BIA officer told Littlewhiteman that Raymond was at the Valdez

house on December 3. On December 4, the white pickup truck was found wrecked near

the Valdez house and footprints led from the truck toward the Valdez house.

Littlewhiteman submitted an affidavit stating that he knew Raymond would

probably be home around midday, since he knew Raymond was unemployed, liked to stay

out late drinking, sometimes abused drugs such as heroin and cocaine, and was suspected

of having committed at least two nighttime burglaries.5 Significantly, the plaintiff did not

4
The plaintiff suggests an alternative explanation for the pickup's presence at her
house, stating that Tom was a friend of hers, and that the pickup truck was present when Tom
came to visit not Raymond Valdez, Jr., but the plaintiff. As with the after-the-fact
determination about where Raymond actually lived, the true reason for the pickup truck's
presence is not controlling. Rather, the case must be decided on the basis of what the officers
knew at the time of their entry into the residence. Here, there is no evidence McPheters and
Littlewhiteman had any reason to take the frequent presence of the white pickup truck as
anything other than another indication that the suspect continued to reside in the Valdez
house.

5
The dissent seeks to minimize these uncontroverted facts by treating the officers'
conclusion as a single piece of "evidence", when the conclusion itself is grounded on these
several facts known by the defendants prior to their first entry. Additionally, although not
articulated as such, the dissent seemingly applies a standard much closer to "probable cause"
than "reasonable belief." While probable cause itself is a relatively low threshold of proof,
it is a higher standard than "reasonable belief", which is, as everyone agrees, the appropriate
standard. See Alabama v. White, 496 U.S. 325,329, 110 L.Ed.2d 301,308, 110 S.Ct. 2412
(1990) (noting "the lesser showing required" for reasonable suspicion); Beall v. Moore, Slip.
op., Case No. 96-2095, 1997 WL 234786 (10th Cir. May 7, 1997) ("satisfaction of the higher

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attempt to offer any facts which would contradict Littlewhiteman's affidavit on

Raymond's suspected nocturnal activities. In her response to the summary judgment

motion, plaintiff complains that the affidavit was "nonsensical, non-factual and therefore

irrelevant." (R. Exh. 3 at ¶ 17). She does not, however, offer any evidence which would

controvert this portrait of Raymond Valdez, Jr.’s night life. The evidence of late-night

drinking, drug abuse, and unemployment is therefore uncontroverted. More importantly,

the ultimate accuracy of the affidavit's characterization of Raymond's lifestyle is not

significant. What is significant, and also uncontroverted, is that Littlewhiteman had been

presented with such information prior to the entry into the Valdez residence. Finally,

after the first search on December 7, a witness (Sherman DuBois) told McPheters and

Littlewhiteman that he had seen Raymond at the Valdez residence earlier that day.

Plaintiff Valdez stresses that she denied to the defendants that Raymond lived

there or that she and her family knew where he in fact was. It is also stressed that the Salt

Lake County Attorney Fact Sheet prepared in connection with the investigation lists

Raymond's address as "transient." (R. Exh. 7 at 1). If this were the only evidence in the

case as to Raymond's residence, it would of course fatally undermine the defendants'

qualified immunity based on an objective belief Raymond lived at the Valdez residence.

But, under the circumstances of the case, such information only tends to support a

probable cause standard necessarily entails satisfaction of the reasonable suspicion
standard").

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determination of qualified immunity. That is, the officers knew from a variety of sources

that Raymond had been living with his mother, including Raymond's own statements in

the presence of defendant Littlewhiteman. The fact that the suspect was otherwise known

to be young, unemployed, and "transient" suggests, if anything, that he was still living

with his family in the Valdez residence.

Given the facts present in the case, the district court did not err in concluding that

the defendants could have reasonably concluded that Raymond Valdez, Jr. lived in the

residence, and that he would likely be present inside.6

AFFIRMED.

6
It may be noted that even under the "actual presence" test suggested by the Ninth
Circuit in Harper, there are grounds for affirming the district court's award of summary
judgment. In Harper, the court held that evidence available to the officers supported an entry
without a search warrant, although "just barely." 928 F.2d at 896-97. Specifically, the court
noted that the officers knew (1) the suspect's brothers lived in the residence, (2) according
to "an uncorroborated source," the suspect himself lived there, (3) the police saw automobiles
belonging to the suspect's known associates parked at the residence, (4) through "intermittent
surveillance" the suspect had been seen entering the residence with his own key during the
days prior to the entry, and (5) the suspect had lived with his family at another residence
before a previous incarceration "suggesting that he had no independent residence and would
resume living with them upon his release." 928 F.2d at 896. This fact pattern is strikingly
similar to the present case. While Valdez was not seen entering the residence "with his own
key," the defendants had been informed of his residence in the house not by "an
uncorroborated source" but by Raymond Valdez's own admission, in the presence of Officer
Littlewhiteman, that he lived with his mother. Valdez's family lived in the residence, he was
reportedly in the residence in the days prior to the entry, an automobile of a known associate
was observed at the residence, and the circumstances of Valdez's life suggested he would
likely be at the residence at the time the officers arrived.

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97-4057, Valdez v. McPheters

EBEL, Circuit Judge, concurring in part and dissenting in part.

The majority states the legal standard under Payton as follows: “[D]efendants were

entitled to enter the Valdez residence if there was a reasonable basis for believing that

Raymond Valdez, Jr. both (1) lived in the residence and (2) could be found within at the

time of entry.” Maj. Op., ante, at 10. Applying this test, the majority found that agents

McPheters and Littlewhiteman (collectively “defendants” or “agents”) possessed a

reasonable basis for concluding that Raymond Nathaniel Valdez (“Raymond”) resided at

his mother’s home and that he was present when they conducted their warrantless,

nonconsensual search. Because I disagree with the latter conclusion, I respectfully

dissent.

I. Payton’s First Prong: Suspect’s Residence

The majority concludes that the defendants reasonably believed that Raymond

resided at his mother’s home for Payton purposes. In doing so the majority, for the first

time in this circuit, articulates the standard of certainty officers must have about a

suspect’s residence before entering with only an arrest warrant. While ultimately I agree

with the majority that the defendants have made a sufficient showing under Payton’s first

requirement to entitle them to qualified immunity, I write separately on this issue to

discuss what level of certainty Payton and the Fourth Amendment require an officer to

possess regarding whether a suspect resides at a certain location before entering that

residence on the basis of an arrest warrant alone.
 The majority correctly notes that the other circuits to consider the issue have

almost unanimously adopted the reasonable belief standard for residence. See Maj. Op.,

ante, at 7-9. The reasons for doing so have been articulated with varying degrees of

clarity in the opinions cited by the majority. See United States v. Route, 104 F.3d 59, 62

(5th Cir.), cert. denied, 117 S. Ct. 2491 (1997); United States v. Risse, 83 F.3d 212, 216

(8th Cir. 1996); United States v. Lauter, 57 F.3d 212, 215 (2d Cir. 1995); United States v.

Edmonds, 52 F.3d 1236, 1248 (3d Cir. 1995); United States v. Magluta, 44 F.3d 1530,

1535 (11th Cir. 1995).

I have no doubt that within the qualified immunity context, the majority articulates

the proper standard. In Anderson v. Creighton, the Supreme Court held that government

agents performing discretionary duties are entitled to qualified immunity so long as their

complained-of actions were objectively legally reasonable “assessed in light of the legal

rules that were ‘clearly established’ at the time [the actions were] taken.” 483 U.S. 635,

639 (1987) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982)). In another context,

this court has recognized that in a § 1983 action, we must assess government agents’

actions under the appropriate substantive law modified by a “reasonable officer” standard.

See Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995) (“When a warrantless arrest is

the subject of a § 1983 action, the defendant arresting officer is ‘entitled to immunity if a

reasonable officer could have believed that probable cause existed to arrest’ the plaintiff.”

(quoting Hunter v. Bryant, 502 U.S. 224, 228 (1991)). Here, Payton dictates the clearly

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established law: “[For Fourth Amendment purposes, an arrest warrant founded on

probable cause implicitly carries with it the limited authority to enter a dwelling in which

the suspect lives when there is reason to believe the suspect is within.” Payton, 445 U.S.

at 603. While the language of Payton implicates no reasonableness standard as to a

government agent’s belief regarding a suspect’s residence, the qualified immunity

rationale requires that we assess whether “the suspect lives” within the “dwelling” entered

according to what a reasonable officer would believe. Cf. Romero, 45 F.3d at 1476. In

this case the record indicates that the officers had sufficient indicia — barely sufficient —

to form a reasonable belief that Raymond resided at the Valdez family home in La Point,

Utah. Accordingly, I concur with the majority that the agents have sufficiently met

Payton’s first requirement for qualified immunity purposes.

II. Payton’s Second Prong: Suspect’s Presence

In order to be entitled to summary judgment based on qualified immunity, the

agents also must meet the second requirement of Payton’s clearly established law – they

must have possessed a “reason to believe the suspect [was] within” Mrs. Valdez’s home

at the time they entered. See Payton, 445 U.S. at 603. As the majority correctly observes,

in assessing whether a government agent’s belief of presence was reasonable “courts

‘must be sensitive to common sense factors indicating a resident’s presence.’” Maj. Op.,

ante, at 11 (quoting United States v. Magluta, 44 F.3d 1530, 1535 (11th Cir. 1995)). In

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this case, common sense belies a finding that the officers had a reason to believe

Raymond was within the Valdez family home in La Point, Utah when they executed their

search.

The majority catalogues a number of circumstances that this and other circuit

courts have recognized as bases for a reasonable belief of a suspect’s presence within his

home. Specifically, the majority identifies “presence of an automobile, . . . the time of

day, . . . operation of lights or other electrical devices, . . . and the circumstances of a

suspect’s employment” as recognized evidence of presence. See Maj. Op., ante, at 12-13.

Notwithstanding the myriad ways to infer presence and the forgiving standard for

evaluating whether an officer’s belief of a suspect’s presence is reasonable, this case

stands in stark contrast to those cited by the majority because the instant record is devoid

of any reliable evidence known to the agents indicating that Raymond was actually home

at the time of the defendants’ search.

The majority cites exactly one piece of evidence1 in support of its conclusion that

the agents reasonably believed Raymond was home when they searched his mother’s

residence:

Littlewhiteman submitted an affidavit stating that he knew Raymond
would probably be home around midday, since he knew Raymond was

I deal here with only the first of the two unsuccessful searches executed by the agents
1

on December 7, 1993, at the Valdez home. For purposes of a cause of action under § 1983
predicated upon that first search, I find it irrelevant that “after the first search on December
7, a witness (Sherman DuBois) told McPheters and Littlewhiteman that he had seen
Raymond at the Valdez residence earlier that day.” Maj. Op., ante, at 15.

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 unemployed, liked to stay out late drinking, sometimes abused drugs such as
heroin and cocaine, and was suspected of having committed at least two
nighttime burglaries. Significantly, the plaintiff did not offer any facts
which would contradict Littlewhiteman’s affidavit on Raymond’s suspected
nocturnal activities.2

Maj. Op., ante, at 14-15 (emphasis added) (footnote omitted). Based upon this “portrait

of Raymond Valdez, Jr.’s night life,” the officers claim they formed a reasonable belief

that Raymond would be home at noon on December 7, 1993. In my estimation, Payton’s

second prong requires more.

At most, this “evidence” of Raymond’s lifestyle implicates the interrelated “time

of day” and “circumstances of employment” factors identified by the majority. According

to the “time of day” cases cited, ante at 12, early morning has been recognized as a time

when suspects can probably be found at home. See United States v. Edmonds, 52 F.3d

1236, 1248 (3d Cir. 1995) (“The agents came to the apartment to arrest Carlton Love at

6:45 a.m., early enough that it was unlikely someone living in the apartment would have

2
Moreover, the majority’s paraphrasing of Littlewhiteman’s declaration implies a
greater level of certainty regarding finding Raymond at his mother’s house at noon on
December 7, 1993, than the words Littlewhiteman used under oath. Instead of stating that
he “knew” that Raymond would be home around midday or that he “knew” about Raymond’s
lifestyle, Littlewhiteman actually said only that he had “information” that “indicated that
Valdez was unemployed, that he liked to stay out late at night drinking, that he sometimes
abused drugs such as heroin and cocaine, and that he was suspected of having committed at
least two burglaries which had occurred at night. Based on his lifestyle, I believed that
Valdez would be at the Valdez residence when we went looking for him about noon.”
As indicated in the text of my dissent, this information is inadequate, in my opinion,
to support any reasonable belief as to where Raymond could be found at noon on December
7, 1993. If anything, it merely emphasizes Raymond’s itinerate and unstructured lifestyle and
it establishes that no one had any reasonable basis for concluding that he would be at his
mother’s home at noon on December 7.

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already departed for the day.”); United States v. Terry, 702 F.2d 299, 319 (2d Cir. 1983)

(“[T]he agents arrived at the apartment at 8:45 A.M. on a Sunday morning, a time when

they could reasonably believe that Terry would be home.”). Further, this court recognized

in an unpublished disposition that “8:45 p.m., on a cold, snowy evening, [is] a time when

a person would reasonably be expected to be at home.” Anderson v. Campbell, No. 95-

6459, 1996 WL 731244, at **3 (10th Cir. Dec. 20, 1996).

Significantly, the officers in all three of the “time of day” cases cited by the

majority had other indicia of presence besides the time of day at which they conducted

their search. In Edmonds, the officers arrived at 6:45 a.m., and “[o]n their arrival, the

observed the [defendant’s] black Mustang parked in front of the apartment.” 52 F.3d at

1248. In Terry, “[w]hen the agents arrived at the apartment building, a 12-year old boy

wearing a shirt with the name ‘Terry’ on it told them his father and mother lived in the

apartment and did not indicate that his father was not home.” 702 F.2d at 319. In

Anderson, when officers approached the defendant’s front door, they observed a man

through the window who had “basically the same height, weight and facial features . . .

[who] looked young enough for the warrant’s physical description of the suspect to have

easily matched him.” Anderson, 1996 WL 731244, at **3 (quotation marks omitted).

Thus, these cases stand for the proposition that “time of day” plus other indicia of

presence can support Payton’s reasonable belief of presence requirement. See also

United States v. Beck, 729 F.2d 1329, 1331-32 (11th Cir. 1984) (“Beck’s car, identified

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by the agents, was parked nearby; and it was reasonable to believe that one would be at

home at 7:30 a.m. and be sound asleep . . . .”).

The “circumstances of a suspect’s employment” cases provide the best support for

the majority’s conclusion that agents McPheters and Littlewhiteman reasonably believed

Raymond was present when they searched his mother’s home. In United States v. Lauter,

57 F.3d 212, 215 (2d Cir. 1995), the Second Circuit deemed reasonable an ATF agent’s

belief of a suspect’s presence at his basement apartment during an 8:30 a.m. raid after a

tip from a “reliable CI” that the suspect “was unemployed and typically slept late,” and

had moved into the basement apartment that weekend. That case is distinguishable, both

because of the quality of the confidential informant’s information and the earlier time of

morning for the entry. In United States v. Woods, 560 F.2d 660, 665 (5th Cir. 1977), the

Fifth Circuit acknowledged that “there is no indication in the record that the officers had

reason to know whether appellant would be at his home when they went there to execute

the arrest warrant,” however, the court nonetheless found “it a reasonable anticipation on

the officers’ part to believe that a person would be at his place of abode, especially at 8:30

in the morning for a man not known to be working . . . .” That case may similarly be

distinguishable from the present case based on the early-morning nature of the search.

Although to the extent it is not distinguishable, I would not follow its relaxed standard for

meeting Payton’s second prong.

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 Here, the agents paint a vague picture of Raymond as an unemployed, late-night

drinking, drug-abusing party-goer. Accepting that picture as accurate, I find that the

agents presented no evidence that Raymond had engaged in any late-night activities, let

alone drinking or drug abuse, the night before they conducted their search. Further, the

agents presented no evidence — assuming that Raymond had painted the town the night

before the search — that he retired to his mother’s house after the revelry ended. In light

of the agents’ knowledge of Raymond’s “transient” nature, I find the leap too great from

their general impressions of Raymond’s lifestyle to a reasonable belief that he would be

present at his mother’s house at noon on the random day they chose to search. See Blake

v. Peterson, No. 94-C-6561, 1995 WL 360702, at *10 (N.D. Ill. June 14, 1995) (“Even

more significant [as to their belief of presence], the agents in Edmonds[, 52 F.3d at 1248,]

were certain that their suspect was presently residing at the apartment that they entered

pursuant to the arrest warrant. In the instant case, agents did not . . . establish that the

suspect actually resided at [residence searched].”). There was nothing in the record to

suggest that Raymond stayed at his mother’s house on a routine or even frequent basis.

Given all the other locations where he could have been on that particular day in light of

his peripatetic, criminal, and unstructured lifestyle, there was absolutely no reason to

believe that he was in fact in his mother’s home on that particular day at that particular

time.

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 The majority correctly explains that “[d]irect surveillance or the actual viewing of

the suspect on the premises is not required.” Maj. Op., ante, at 11-12. However, officers

must possess some specific facts that indicate a suspect will be found within his or her

home at the time, on the day the officers decide to search, in order to justify entry into a

suspect’s home based on an arrest warrant alone. By sanctioning the search of agents

McPheters and Littlewhiteman, the majority today almost entirely eviscerates the second

requirement that Payton imposes before an agent, armed only with an arrest warrant, can

enter a suspect’s home. The limited rule permitting early-morning or late-evening

searches when other evidence indicates that a suspect is at home, now extends until noon.

I cannot say that Payton’s “limited authority” to enter a suspect’s dwelling — “the chief

evil against which the wording of the Fourth Amendment is directed,” Payton, 445 U.S. at

585 (quotation omitted) — can be extended to almost any time of day based only on an

officer’s belief that a suspect has a penchant to drink or stay out late. Because the

officers here had no specific reason to believe that Raymond was drinking, abusing drugs,

or out late partying the night before their December 7, 1993 search, and because the

officers had no reason to believe that he would have returned to his mother’s home even

if he had been engaged in any of these activities, I find their belief that he would be at his

mother’s at noon on the day they decided to search to be unreasonable.

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