United States v. Reeves

FILED
United States Court of Appeals
Tenth Circuit

May 7, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 07-8028
DOUGLAS ALAN REEVES,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. No. 06-CR-27-CAB)

John T. Carlson, Assistant Federal Public Defender, Denver, Colorado, (Raymond
P. Moore, Federal Public Defender, Denver, Colorado, and Robert R. Rogers,
Assistant Federal Public Defender, Cheyenne, Wyoming, with him on the briefs)
for Defendant-Appellant.

Lisa E. Leschuck, Assistant United States Attorney, (John R. Green, Acting
United States Attorney, Cheyenne, Wyoming, with her on the brief) for Plaintiff-
Appellee.

Before MURPHY, HOLLOWAY, and TYMKOVICH, Circuit Judges.

MURPHY, Circuit Judge.
 Douglas Alan Reeves was arrested, without a warrant, when he answered

his motel door at 3:30 am. Reeves answered the door only after officers made

phone calls to his room, knocked on his door and window with flashlights, and

loudly identified themselves as police officers over the course of at least twenty

minutes. Subsequent to his arrest, weapons and ammunition were found in his

room and on his person. Reeves entered a conditional guilty plea to one count of

Felon in Possession of a Firearm and one count of Felon in Possession of

Ammunition. 18 U.S.C. §§ 922(g)(1), 924(a)(2). The plea agreement preserved

his right to appeal the district court’s denial of his motion to suppress evidence of

the weapons, premised on a violation of the Fourth Amendment. This court has

jurisdiction pursuant to 28 U.S.C. § 1291. Because we hold Reeves was seized

inside his room without a warrant in violation of Payton v. New York, 445 U.S.

573 (1980), and, because the government has not demonstrated that Reeves’

subsequent consents to search were not tainted by the unlawful seizure, we

REVERSE the district court’s denial of Reeves’ motion to suppress.

I.

This court reviews a district court’s ruling on a motion to suppress by

considering the evidence in the light most favorable to the prevailing party, here

the government. United States v. Cheromiah, 455 F.3d 1216, 1220 (10th Cir.

2006). The facts, therefore, taken in the light most favorable to the government

are as follows.

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 On March 13, 2005, at 9:30 pm Carbon County Sheriff’s Office deputies

and Baggs, Wyoming police officers responded to an aggravated assault call.

During the investigation, an EMT who treated the victim and who also worked as

a clerk in a liquor store, informed officers she heard Reeves make a comment

earlier the same day at the liquor store that “sometimes you gotta do what you

gotta do and God tells you to do it.” This statement was substantially similar to a

statement the assault victim heard her assailant make. As a result, Reeves became

a suspect in the assault investigation. Reeves was also known to the officers to be

a felon and they had received reports from citizens that he was in possession of a

handgun.

At 2:43 am, Baggs Chief of Police Mark Lapinskas, Carbon County

Sheriff’s Sergeant Michael Morris, Deputy Edward Fourman, and Deputy Dave

Fagnant arrived at the Country Inn Motel, where Reeves was known to have been

living for three months. Deputy Fourman and Sergeant Morris requested the

manager call Reeves and ask him to step outside. The manager made multiple

calls to Reeves’ room, but there was no response. During this time, Chief

Lapinskas and Deputy Fagnant kept watch on Reeves’ room. After receiving no

response to the phone calls, Chief Lapinskas, Deputy Fourman, and Sergeant

Morris approached the motel room and Deputy Fagnant went to the back of the

motel to watch the rear exit.

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 Outside Reeves’ motel room, the officers commenced knocking on the door

and window, using their police-issued black metal flashlights. The officers

knocked consistently for at least twenty minutes while yelling and identifying

themselves as police officers. 1 Deputy Fourman testified the officers “banged on

the window very loudly with [their] flashlights.” R. Vol. 3 at 10. During this

time period, Reeves did not come to the door or otherwise acknowledge the

officers’ presence. After approximately twenty minutes of banging and yelling,

Reeves came to the motel room door.

Chief Lapinskas testified that Reeves opened the door and stepped out of

the room. As Reeves exited, the officers observed he wore a holster. The officers

testified that they could not, however, determine whether the holster held a gun.

Chief Lapinskas ordered Reeves to show his hands, withdrew his taser, and aimed

its target light at Reeves. Reeves complied and was taken into custody. When

patted down, five .44 caliber rounds were found in his pocket. Chief Lapinskas

1
The district court made no findings regarding the length of time the
officers knocked on Reeves’ door. Although we consider the facts in the light
most favorable to the government, we note that the time spent knocking was most
likely more than twenty minutes. Relying on his incident report which was
prepared a few days after the incident, Deputy Fourman testified that the officers
arrived at the Country Inn Motel at 2:43 am and Reeves exited his room after 3:30
am. When asked to allocate those forty-five minutes, Fourman explained “[w]hen
I first got there, I went to the manager’s so that probably took ten minutes at that
point. It probably took another twenty minutes of knocking, consistent knocking,
before he exited the room.” R. Vol. 3, at 29. This leaves at least fifteen
unaccounted minutes.

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performed a protective sweep of the motel room, observing a revolver lying on

the floor, two rifles in an open closet, and boxes of ammunition on a storage

shelf. The revolver was in plain view to the officers located outside the room.

The officers read Reeves his Miranda rights and requested consent to

search the room. Reeves initially consented, but quickly withdrew his consent

and the officers ceased the search. Before the officers withdrew from the room,

however, the revolver on the floor was seized. Reeves was taken to the Baggs

Town Hall at approximately 3:50 am and interviewed about the assault. He

denied involvement and volunteered to submit to testing. The interview lasted

about one hour. Reeves was then transported seventy-five miles from Baggs to

Rawlins where he was taken to the hospital to submit to a sexual assault kit. He

remained at the hospital from 6:30 am to 8:00 am. Reeves was then transported

to the Sheriff’s Office in Rawlins and the officers resumed the interview that

began at the Baggs Town Hall. The officers again requested permission to search

Reeves’ motel room. At 8:20 am, Reeves signed a form granting permission to

search the room. The search of the motel room produced two long-barreled rifles

and one .22 caliber handgun. Reeves was tried on the sexual assault charges and

the trial ended in a hung jury. He was subsequently transferred from state to

federal custody to face federal firearm charges.

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 II.

On appeal, Reeves argues he was arrested inside his home in violation of

the Fourth Amendment and that the evidence subsequently obtained was tainted

and should be suppressed. 2 He claims he only opened his door as a result of

coercive police conduct and this coercion effectuated an arrest inside his home at

the moment he opened his door. Because this was a routine felony arrest and

there were no exigent circumstances, he argues, the subsequent search of his room

was barred by the Fourth Amendment.

In reviewing the district court’s denial of a motion to suppress, this court

considers the evidence in the light most favorable to the government. Cheromiah,

455 F.3d at 1220. This court must accept the district court’s factual findings

unless those findings are clearly erroneous. United States v. McKissick, 204 F.3d

1282, 1296 (10th Cir. 2000). The ultimate determination of reasonableness under

the Fourth Amendment, however, is a question of law reviewed de novo. Id.

In Payton v. New York, the Supreme Court held that, absent exigent

circumstances, police officers may not enter an individual’s home without consent

to make a warrantless routine felony arrest even if probable cause to arrest the

individual exists. 445 U.S. at 576. Payton held “the Fourth Amendment has

2
The officers knew at the time of the incident that Reeves had been living at
the Country Inn Motel for at least three months. There is no question Reeves’
motel room was his home for purposes of the Fourth Amendment. Hoffa v.
United States, 385 U.S. 293, 301 (1966).

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drawn a firm line at the entrance to the house.” Id.; see also Kirk v. Louisiana,

536 U.S. 635, 638 (2000) (per curiam). That line can be breached by conduct

other than physical entry. This court has held that officers need not physically

enter the home for Payton to apply. United States v. Maez, 872 F.2d 1444, 1451

(10th Cir. 1989). Rather, “it is the location of the arrested person, and not the

arresting agents, that determines whether an arrest occurs within a home.” Id.

(quotation omitted). As a result, although the officers were positioned outside the

motel room, Reeves was inside his room at the time he opened his door and we

analyze this encounter as occurring within his home.

Encounters between police officers and citizens generally can be

categorized as arrests, investigatory stops, or consensual encounters. United

States v. Shareef, 100 F.3d 1491, 1500 (10th Cir. 1996). Consensual encounters

do not implicate the Fourth Amendment. 3 Id. Both arrests and investigatory

stops, however, are seizures under the Fourth Amendment. Terry v. Ohio, 392

U.S. 1, 16-19 (1968). Payton’s protections apply to all Fourth Amendment

seizures of persons inside their homes. 4 445 U.S. at 590 (“In terms that apply

3
So-called “knock and talks” fall into this category of encounter. United
States v. Cruz-Mendez, 467 F.3d 1260, 1264 (10th Cir. 2006) (“[A] ‘knock and
talk’ is a consensual encounter and therefore does not contravene the Fourth
Amendment, even absent reasonable suspicion.”).
4
The scenario in which an individual voluntarily opens his door to the
police and is subsequently seized while still inside his home, is not before us and
we express no opinion on such a situation. Cases analyzing such scenarios,
(continued...)

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equally to seizures of property and to seizures of persons, the Fourth Amendment

has drawn a firm line at the entrance to the house. Absent exigent circumstances,

that threshold may not reasonably be crossed without a warrant.” (emphasis

added)); Kirk, 536 U.S. at 638 (“[P]olice officers need either a warrant or

probable cause plus exigent circumstances in order to make a lawful entry into a

home.”). As a result, labeling an encounter in the home as either an investigatory

stop or an arrest is meaningless because Payton’s requirements apply to all

seizures. 5 United States v. Saari, 272 F.3d 804, 809 (6th Cir. 2001).

4
(...continued)
therefore, are not relevant to the analysis of this appeal, where the question is
only whether Reeves voluntarily opened his door. Accordingly, the concurrence’s
reliance on such cases is misplaced. See United States v. Barker, 437 F.3d 787,
790 (8th Cir. 2006) (concluding a reasonableness standard may apply when
officers “requested” a defendant step outside his room, as opposed to issuing a
“command”); United States v. Beaudoin, 362 F.3d 60, 67-69 (1st Cir. 2004) (“The
police did not order Beaudoin out of the doorway until he had voluntarily opened
the door and spoken with them.”), vacated on other grounds sub nom. Champagne
v. United States, 543 U.S. 1102 (2005); United States v. Gori, 230 F.3d 44, 51-55
(2d Cir. 2000) (holding the defendant voluntarily opened his door and no longer
had an expectation of privacy in the entrance area); United States v. Portillo-
Portillo, No. 07-2070, 2008 WL 538487, at * 3 (10th Cir. Feb. 28, 2008)
(unpublished) (applying an investigatory stop analysis to defendants who
voluntarily opened the door to police). United States v. Taylor is even less
relevant. 90 F.3d 903, 908 (4th Cir. 1996) (holding officers did not conduct a
search by looking into an open window because there was no expectation of
privacy in the area and the items seen through the window provided the officers
with probable cause and exigent circumstances to enter the home).
5
The concurrence is correct in noting that one other circuit has applied the
investigatory stop framework to a non-consensual encounter in a home with a
closed door. See United States v. Jerez, 108 F.3d 684, 691-93 (7th Cir. 1997).
Our circuit and several others, however, have correctly applied Payton v. New
(continued...)

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 That Payton applies to all warrantless seizures in the home is the only

logical outcome. If we were to hold otherwise, it would allow a seizure in the

home when only reasonable suspicion exists, yet prohibit a seizure in the home

when an officer has probable cause to arrest, but no exigent circumstances. It

cannot be the case that Payton’s “firm line at the entrance to the house” offers

less protection to individuals for whom probable cause to arrest does not exist.

445 U.S. at 576.

A.

We first consider whether Reeves was seized inside his room and opened

the door as a result of coercive police conduct. “[A] person has been ‘seized’

5
(...continued)
York, 445 U.S. 573 (1980), to such encounters. United States v. Flowers, 336
F.3d 1222, 1227 (10th Cir. 2003); United States v. Maez, 872 F.2d 1444, 1451
(10th Cir. 1989); see also United States v. Mowatt, 513 F.3d 395, 399-400 (4th
Cir. 2008) (“It is well established that a search occurs for Fourth Amendment
purposes ‘when officers gain visual or physical access to a . . . room after an
occupant opens the door not voluntarily, but in response to a demand under color
of authority.’” (quoting United States v. Conner, 127 F.3d 663, 666 (8th Cir.
1997)); United States v. Saari, 272 F.3d 804, 809 (6th Cir. 2001) (“Payton’s
holding that warrantless seizures of persons in their homes violate the Fourth
Amendment, absent exigent circumstances, applies to this case regardless of
whether the officers at issue were conducting an arrest or an investigatory
detention.”); Conner, 127 F.3d at 666 n.3 (“Our analysis of the entry of the motel
room under Payton necessarily rejects the government’s argument that we should
assess the police officers’ command to open the door under a reasonableness
standard.”); United States v. Johnson, 626 F.2d 753, 757 (9th Cir. 1980) (applying
Payton to the seizure of an individual who opened his door when agents
misrepresented their identities).

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within the meaning of the Fourth Amendment only if, in view of all of the

circumstances surrounding the incident, a reasonable person would have believed

that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554

(1980). In situations where the individual could not or would not wish to leave,

even absent the police presence, “the appropriate inquiry is whether a reasonable

person would feel free to decline the officers’ requests or otherwise terminate the

encounter.” Florida v. Bostick, 501 U.S. 429, 436 (1991). Circumstances that

indicate a seizure include, “the threatening presence of several officers, the

display of a weapon by an officer, some physical touching of the person of the

citizen, or the use of language or tone of voice indicating that compliance with

the officer’s request might be compelled.” 6 Mendenhall, 446 U.S. at 554; Maez,

872 F.2d at 1450.

Opening the door to one’s home is not voluntary if ordered to do so under

color of authority. In Maez, the defendant was a suspect in a bank robbery. 872

6
The concurrence seems to believe that cases in which officers seize an
individual inside his home, but do not cross the threshold themselves (what it
calls “constructive entry” cases) are subject to a different seizure standard.
Concurrence at 1. Under its theory, police conduct in such cases must be
“excessively coercive” to violate Payton. Id. As explained above, however, it is
the location of the defendant, not the officer, which governs whether the
heightened Fourth Amendment protections of the home apply. Thus, so called
“constructive entry” cases and regular entry cases are analytically
indistinguishable for purposes of examining whether a seizure occurred.
Furthermore, such an approach is not supported by this court’s precedent.
Flowers, 336 F.3d at 1226 n.2; Maez, 872 F.2d at 1450.

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F.2d at 1446. The police planned Maez’s arrest over the course of at least three

hours, but did not obtain a warrant. Id. at 1446-47. Ten officers, including a

SWAT team, surrounded Maez’s home and, with rifles pointed at the trailer,

asked the occupants to come out one at a time over loudspeakers. Id. at 1447,

1449-50. The occupants complied and Maez was taken into custody. Id. at 1450.

This court concluded “Payton is violated where there is such a show of force that

a defendant comes out of a home under coercion and submits to being taken in

custody.” Id. at 1451; see also United States v. Al-Azzawy, 784 F.2d 890, 893

(9th Cir. 1985) (holding defendant was seized inside his home when officers

surrounded his trailer and ordered him through a bullhorn to leave the trailer and

drop to his knees); United States v. Morgan, 743 F.2d 1158, 1163-64 (6th Cir.

1984) (holding the police seized the defendant inside his home when the

defendant was ordered out of his home with his hands up).

Further, this court has held that if an individual’s decision to open the door

to his home to the police is not made voluntarily, the individual is seized inside

his home. United States v. Flowers, 336 F.3d 1222, 1226 n.2 (10th Cir. 2003)

(“[W]e hold that Flowers’ decision to open his door was not voluntary and he was

arrested while in his home.”). In Flowers, the officers suspected the defendant

was selling liquor illegally. Id. at 1223. After knocking on the door of the

defendant’s home and inquiring if they could purchase alcohol, the officers were

offered wine through a hole in the wall of the home. Id. at 1224. The officers

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told the defendant, “in a firm tone of voice, ‘Tulsa Police Department, open the

door.’” Id. We concluded “a reasonable person confronted by police officers

outside his door at night and a command by one of the officers to allow them to

enter, would have believed that he had to open the door of his home and submit to

the show of authority.” Id. at 1226 n.2.

In United States v. Jerez, the Seventh Circuit held that when officers

knocked on a motel room door for three minutes, identified themselves as

officers, asked the occupants to open the door, knocked on the window for one-

and-a-half to two minutes, and shined a flashlight into the window, the

subsequent opening of the door by the defendant was a submission to a show of

authority and a seizure within the meaning of the Fourth Amendment. 108 F.3d

684, 691-93 (7th Cir. 1997). It concluded,

The three minutes of silence by Room 161’s occupants, when
combined with the other circumstances of this case, especially the
lateness of the hour, amounted to a refusal by Mr. Jerez and Mr.
Solis to answer the door. Once the officers had been refused
admittance, their continued efforts to rouse the occupants out of bed
certainly prevented them from ignoring the continued requests and
from maintaining the privacy and solitude of their dwelling.

Id. at 691-92 (footnote omitted); see also United States v. Conner, 127 F.3d 663,

665-66 (8th Cir. 1997) (holding when four officers knocked on the defendants’

motel door three times, identified themselves as police, and demanded the

defendant “open up,” the defendants did not voluntarily consent to the entry).

The Sixth Circuit determined a seizure occurred when,

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 the officers positioned themselves in front of the only exit from
Defendant’s apartment with their guns drawn. They knocked
forcefully on the door and announced that they were the police.
Upon opening the door, Defendant was instructed to come outside,
which he did. Under these circumstances, a reasonable person would
have believed that he was not free to leave.

Saari, 272 F.3d at 808; see also, United States v. Mowatt, 513 F.3d 395, 400 (4th

Cir. 2008) (holding the defendant’s acquiescence to demands to open his door

constituted a search).

The officers’ conduct outside Reeves’ motel room would lead a reasonable

person to believe he was not free to ignore the officers. See Mendenhall, 446

U.S. at 554; Bostick, 501 U.S. at 436 . Although there is no evidence the officers

gave Reeves a direct order to open his door, the officers’ actions were effectively

a command to open the door. The record demonstrates that three officers

pounded on Reeves’ door and window while yelling and loudly identifying

themselves as police officers. They continued this conduct consistently for at

least twenty minutes. This encounter began between 2:30 and 3:00 in the

morning, a time which must be taken into consideration when analyzing the

coerciveness of the encounter. Flowers, 336 F.3d at 1226 n.2; see also Jerez, 108

F.3d at 690. 7 A reasonable person faced with several police officers consistently

7
The Seventh Circuit placed significant emphasis on the late hour of an
encounter. The court stated:

Because our law and legal traditions long have recognized the special
(continued...)

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knocking and yelling at their door for twenty minutes in the early morning hours

would not feel free to ignore the officers’ implicit command to open the door.

Bostick, 501 U.S. at 435. As a result, when Reeves answered his door he did so

in response to a show of authority by the officers and he was seized inside his

home. See Maez, 872 F.2d at 1450.

B.

We next turn to the question of whether Reeves’ arrest inside his home was

justified by probable cause and exigent circumstances. Officers may enter an

individual’s home without consent and conduct a warrantless arrest if both

probable cause and exigent circumstances exist. Payton, 445 U.S. at 590.

Exceptions to the warrant requirement, however, are “few in number and carefully

delineated.” Welsh v. Wisconsin, 466 U.S. 740, 749 (1984) (quotation omitted).

The government bears the burden of establishing that exigent circumstances made

the warrantless entry necessary. United States v. Cuaron, 700 F.2d 582, 586

(10th Cir. 1983). In determining whether the government has met its burden, we

“evaluate the circumstances as they would have appeared to prudent, cautious,

7
(...continued)
vulnerability of those awakened in the night by a police intrusion at
their dwelling place, our Fourth Amendment jurisprudence counsels
that, when a knock at the door comes in the dead of night, the nature
and effect of the intrusion into the privacy of the dwelling place must
be examined with the greatest of caution.

Jerez, 108 F.3d at 690.

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and trained officers.” United States v. Anderson, 154 F.3d 1225, 1233 (10th Cir.

1998). Here, even assuming the officers had probable cause to arrest Reeves, no

exigent circumstances existed to permit the officers to enter Reeves’ room.

The district court found that the officers had to act because Reeves was a

felon and they had knowledge he was leaving immediately for California. The

district court’s finding that the officers knew of Reeves’ travel plans at the time

they took him into custody is clearly erroneous. The undisputed testimony of

Deputy Fourman at the suppression hearing was that he learned of Reeves’

possible travel to California from the motel manager after Reeves had already

been handcuffed and taken into custody. There was no evidence presented that

the officers knew of Reeves’ travel plans before they seized him. As a result, this

information could not support a conclusion that exigent circumstances existed at

the time the officers approached Reeves’ room.

The government argues exigent circumstances were supported by officer

and victim safety. To demonstrate that officer or victim safety justifies a

warrantless entry, the government must show, “(1) the officers had an objectively

reasonable basis to believe that there was an immediate need to enter to protect

the safety of themselves or others, and (2) the conduct of the entry was

reasonable.” United States v. Walker, 474 F.3d 1249, 1253 (10th Cir. 2007).

The government points to Reeves’ appearance in his doorway and the

officers’ reasonable belief that the holster he wore could contain a handgun. This

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event, however, occurred only after Reeves had submitted to the officers’ show of

authority and was seized. A factor that develops post-seizure cannot be used to

justify exigency. See Mowatt, 513 F.3d at 399. The government has pointed to

no evidence that could support exigency at the time Reeves was seized. 8 As a

consequence, no exigent circumstances existed to provide an exception to the

warrant requirement.

C.

Finally, we consider whether Reeves’ unlawful arrest rendered his

subsequent consents to the search of his room invalid and the evidence gathered

in the search inadmissible. See Wong Sun v. United States, 371 U.S. 471, 487-88

(1963). Reeves claims the evidence seized from his room was tainted by the

unlawful seizure and should be excluded. When a consensual search is preceded

by an unlawful arrest, the government must prove the consent was given

voluntarily. It must also “establish a break in the causal connection between the

illegality and the evidence thereby obtained.” United States v. Melendez-Garcia,

28 F.3d 1046, 1053 (10th Cir. 1994) (quotation omitted).

The district court concluded that Reeves’ consent was voluntary, but did

not reach the issue of taint. Whether the taint of an illegal arrest has dissipated is

8
The government makes references to victim and public safety in its brief,
but fails to make any argument as to how these considerations could support
exigency. We note the record is devoid of any mention of a victim or member of
the public whose safety may have been at risk during this encounter.

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analyzed under the factors articulated in Brown v. Illinois, 422 U.S. 590, 603-04

(1975): “1) the temporal proximity between the police illegality and the consent

to search; 2) the presence of intervening circumstances; and particularly 3) the

purpose and flagrancy of the official misconduct.” Melendez-Garcia, 28 F.3d at

1054.

The government argues the district court’s determination that Reeves’

consent was voluntary is not clearly erroneous. It does not, however, attempt to

demonstrate a break in the causal connection between the unlawful arrest and the

consent. This court’s case law makes clear that the government bears the burden

of demonstrating both voluntariness and a break in the causal connection. Id.

Although the tests do overlap to some extent, evidence obtained by consent after

an unlawful seizure should be admitted “only if it is demonstrated that the consent

was both voluntary and not an exploitation of the prior illegality.” Id. at 1054-55

(quotation omitted). “We require the government to demonstrate that any taint of

an illegal search or seizure has been purged or attenuated not only because we are

concerned that the illegal seizure may affect the voluntariness of the defendant’s

consent, but also to effectuate the purposes of the exclusionary rule.” Id. at 1054.

Although the district court did not address the taint issue, the government

has not asked this court to remand this case to the district court for additional fact

finding. Nor has the government argued that facts bearing on the question of

attenuation are in dispute. The government has completely failed to address

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whether there was a break in the causal relationship between the unlawful arrest

and the subsequent search. 9 Because the government has failed to identify

anything in the record demonstrating in any way that the taint from the unlawful

seizure was purged or attenuated before Reeves gave consent to search his motel

room, this court cannot say the causal connection between the illegality and the

consent was broken.

III.

Because Reeves was seized inside his home in violation of Payton’s

warrant requirement and because the government has failed to demonstrate that

the taint of the unlawful seizure had dissipated prior to obtaining Reeves’ consent

to search his room, the district court’s denial of the motion to suppress is

REVERSED.

9
A review of the record did not reveal any obvious evidence of attenuation.

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07-8028, United States v. Reeves

TYMKOVICH, J., concurring.

I write separately to emphasize what I see as unnecessarily broad language

explaining the “constructive entry” doctrine. Constructive entry is deemed to

have occurred where police, although they do not cross the threshold and

physically enter a home as required by Payton v. New York, 445 U.S. 573, 576,

590 (1980), use excessive coercion to force someone from the home. United

States v. Maez, 872 F.2d 1444 (10th Cir. 1989) (applying Payton). Under the

majority’s formulation, this question submits to a bright line rule: any “show of

force” that induces a suspect to leave the home—whether or not excessively

coercive—is tantamount to formal arrest regardless of the circumstances. I would

take a more nuanced, totality of the circumstances approach, and would not deem

every show of force as equivalent to a formal arrest.

As the majority correctly notes, analyzing whether police illegally seized a

suspect turns on the nature of the encounter: did the incident constitute a

consensual encounter, an investigatory stop, or an arrest? See Cortez v.

McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007). 1 A formal arrest is a seizure

“characterized by [a] highly intrusive or lengthy search or detention.” Oliver v.

Woods, 209 F.3d 1179, 1186 (10th Cir. 2000). To arrest a suspect, the police

1
I note, however, that the district court did not analyze whether Reeves
consented to opening the door. On a different record, it seems that consent could
be freely given even with police present outside the door.
must have probable cause. Id. An investigatory detention, in contrast, requires

police to have only reasonable suspicion. United States v. Perdue, 8 F.3d 1455,

1461 (10th Cir. 1993) (citing Terry v. Ohio, 392 U.S. 1, 21 (1968)). “While Terry

stops are seizures under the Fourth Amendment, they constitute such limited

intrusions on the personal security of those detained and are justified by such

substantial law enforcement interests that they may be made on less than probable

cause.” Id. at 1462 (10th Cir. 1993) (quoting Michigan v. Summers, 452 U.S.

692, 699 (1981)). Some cases have recognized that even coercive motel knock-

and-talk encounters supported by reasonable suspicion are not necessarily arrests.

United States v. Jerez, 108 F.3d 684, 693 (7th Cir. 1997). A more limited

encounter may profitably be analyzed under a reasonableness standard.

Nonetheless, the majority is correct in viewing the facts here as evolving into a

formal arrest.

But in construing those facts, the majority opinion takes them a step further

and strongly implies that even limited, non-consensual knock-and-talk encounters

are arrests if the suspect indicates any reluctance to open the door. In reaching

this conclusion, the majority relies on our decision in Maez, 872 F.2d at

1449–1451. In Maez, ten police officers, FBI agents, and a SWAT team

surrounded a trailer that was occupied by the defendant, his wife, and his

children. Id. at 1450. The SWAT team—dressed in black—pointed rifles at the

trailer and over a loudspeaker ordered everyone to exit the trailer. Id. While this

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was happening, the defendant and his wife also saw the police handcuff their

fifteen-year-old son who had been standing outside the trailer. Under this show

of authority, Maez agreed to surrender to the police.

We concluded that this “governmental intrusion, without consent and

without a warrant, was in the form of extreme coercion which effected the arrest

of Maez.” Id. at 1451. (emphasis added). We then explained that the arrest

should be treated as an arrest occurring inside Maez’s home. See id. (“[I]t is the

location of the arrested person, and not the arresting agents, that determines

whether an arrest occurs within a home.”) Because the arrest occurred inside

Maez’s home, we held the police needed either a warrant or probable cause plus

exigent circumstances in order to effectuate the arrest. Id. at 1451; see also

Payton, 445 U.S. at 590.

Maez stands for the proposition that when police use extremely coercive

tactics to force a defendant outside his home, such an encounter can be analyzed

as an arrest. The decision left open the question of how courts should analyze

less intrusive—but still non-consensual—encounters. Examples include routine

investigations where police wish to speak with a suspect or witness in following

up leads—investigations which may quickly exonerate someone erroneously

accused of misconduct. While a police visit to someone’s home may include

uniformed officers who are persistent in their efforts to speak with a resident

(“open the door, we need to talk to you” versus “come out with your hands up”),

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it seems to me that the coercion inherent in such an encounter does not

necessarily rise to the level of an arrest. I fear under the majority’s formulation,

as soon as police take a position at a door and knock persistently for more than a

few seconds, the encounter constitutes an arrest, which at least on these facts

needlessly broadens the constructive entry doctrine. 2

The majority also relies on United States v. Flowers, 336 F.3d 1222, 1227

(10th Cir. 2003). See Majority Op. 11–12. This reliance, however, is misplaced.

Flowers is not a constructive entry case. The police in Flowers actually entered

the defendant’s home in order to arrest him. Flowers, 336 F.3d at 1224. We

evaluated whether the defendant consented to opening the door and allowing the

police to enter his home. See id. at 1227 (“[A] reasonable person confronted by

2
A broad view of the constructive entry doctrine is not without its critics.
For instance, Professor LaFave, commenting on the concept that the “location of
the arrestee” matters, observes:

But this position, it is submitted, is unsound from the standpoint of
both principle and pragmatism. For one thing, it is certainly contrary
to the language of Payton which, again, merely says that the
“threshold may not reasonably be crossed without a warrant.” . . .
Secondly, this position is contrary to the rationale of Payton. . . .
[T]he warrant requirement makes sense only in terms of the entry,
rather than the arrest; the arrest itself is no more threatening or
humiliating than a street arrest. This certainly means that if the
arrest can be accomplished without entry, it should be deemed lawful
notwithstanding the absence of a warrant, even if the arrestee was
just inside rather than on the threshold at the time.

3 Wayne R. LaFave, Search & Seizure § 6.1(e), 301-02 (4th ed. 2007) (internal
quotation marks and citations omitted). Professor LaFave would not deem every
show of force as coercion constituting an arrest. Id. at 307-08.

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police officers outside his door at night and a command by one of the officers to

allow them to enter, would have believed that he had to open the door of his home

and submit to the show of authority.”) (emphasis added). We did not, however,

determine whether the tactics the police used to make the defendant open the door

were sufficiently coercive to constitute a constructive entry.

Other cases have recognized that brief non-consensual knock-and-talk

encounters may be analyzed as an investigatory stop. See, e.g., United States v.

Ray, 199 F. Supp. 2d 1104, 1111 (D. Kan. 2002) (“A knock and talk is ordinarily

consensual unless coercive circumstances such as unreasonable persistence by the

officers turns the encounter into an investigatory stop.”); United States v. Ponce

Munoz, 150 F. Supp. 2d 1125, 1133 (D. Kan. 2001) (same); see also United States

v. Barker, 437 F.3d 787, 789–90 (8th Cir. 2006) (relying on a Terry analysis to

evaluate a coercive knock-and-talk encounter); but see Fisher v. City of San Jose,

509 F.3d 952, 960 (9th Cir. 2007), en banc rehearing granted, No. 04-16095,

2008 WL 752621 (Mar. 14, 2008) (explaining Payton applies to all in-house Terry

seizures, regardless of whether the police cross the threshold); United States v.

Saari, 272 F.3d 804, 809 (6th Cir. 2001) (same). Similarly, many cases rely on a

Terry reasonableness standard in evaluating encounters involving a defendant

constructively seized inside his home after he or another occupant voluntarily

opens the door. See, e.g., United States v. Beaudoin, 362 F.3d 60, 67–71 (1st Cir.

2004), vacated on other grounds, Champagne v. United States, 543 U.S. 1102

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(2005) (relying on a Terry analysis to conclude it was reasonable for an officer to

order a suspect, after he opened his door, to step out of the doorway of his motel

room); United States v. Gori, 230 F.3d 44, 54–57 (2d Cir. 2000) (relying on a

Terry analysis to conclude it was reasonable for officers to order several

occupants of a known stash house to step outside for a limited investigation);

United States v. Portillo-Portillo, No. 07-2070, 2008 WL 538487, at *3–*6 (10th

Cir. Feb. 28, 2008) (relying on a Terry analysis to conclude it was reasonable for

a Border Patrol agent to seize a suspected illegal alien inside his motel room by

asking him a question).

The majority claims several additional cases support the proposition that

Payton applies to all in-house Terry seizures, regardless of whether the police

actually enter the home: United States v. Mowatt, 513 F.3d 395, 399–400 (4th Cir.

2008); United States v. Conner, 127 F.3d 663, 666 (8th Cir. 1997); and United

States v. Johnson, 626 F.2d 753, 757 (9th Cir. 1980). Because none of these

cases created such a per se rule, these cases do not support the majority’s

position.

Mowatt involves an illegal search. The police sought to gain visual access

to the interior of the defendant’s apartment because the officers wanted to verify

whether the defendant was smoking marijuana. To force the defendant to open

the door, the officers repeatedly knocked and ordered the defendant to let them

inside. After an unspecified period of time, the defendant opened the door about

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twelve inches. Mowatt, 513 F.3d at 397. The court concluded the police

conducted an illegal search because “[i]t is well established that a search occurs

for Fourth Amendment purposes when officers gain visual or physical access to a

room . . . after an occupant opens the door not voluntarily, but in response to a

demand under color of authority.” Id. at 400.

In reaching this decision, the court distinguished United States v. Taylor,

90 F.3d 903 (4th Cir. 1996). In Taylor, the police similarly knocked on the

defendant’s door for “several minutes” and ordered the defendant to open it. Id.

at 906. When the defendant finally opened the door, one of the officers noticed a

machine gun on the dining room floor. Id. The court concluded the officers did

not conduct an illegal search because the defendant’s “front entrance was as open

to the law enforcement officers as to any delivery person, guest, or other member

of the public.” Id. at 909. The court in Mowatt distinguished Taylor by

explaining “the police [did not] demand visual access to the residence in Taylor,

wherein the officer merely observed the interior of the residence from a public

vantage point.” Mowatt, 513 F.3d at 400 n.4 (internal quotation marks omitted).

Mowatt therefore did not create a per se rule. Mowatt merely requires police to

have a search warrant if they demand visual access to a person’s home. Mowatt’s

holding, therefore, does not apply to the present case because—like in

Taylor—the police did not demand such access to Reeves’s room. Instead, they

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merely wanted Reeves to answer some questions about a crime that occurred

earlier in the day.

Conner also did not create a per se rule. The court concluded the officers

triggered Payton because they entered the defendants’ motel room without their

consent. Conner, 127 F.3d at 666. In dicta, the court suggested Payton would

have applied even if the officers had not crossed the threshold: “Our analysis of

the entry of the motel room under Payton necessarily rejects the government’s

argument that we should assess the police officers’ command to open the door

under a reasonableness standard.” Id. at 666 n.3. In a subsequent case, however,

the Eighth Circuit implicitly held that Conner did not create such a per se rule.

See United States v. Barker, 437 F.3d 787, 789–90 (8th Cir. 2006). In Barker, the

court relied on a Terry analysis to conclude that a less intrusive—but still

coercive—knock-and-talk encounter was reasonable Id.

Johnson likewise did not create a per se rule. In Johnson, the court

concluded the officers arrested the defendant in his doorway because the police

were brandishing guns when he opened his door. The court explained,

In this case, we are confronted with the situation where the suspect
was arrested as he stood inside his home and the officers stood
outside his home with drawn weapons. In these circumstances, it is
the location of the arrested person, and not the arresting agents, that
determines whether an arrest occurs within a home. Otherwise,
arresting officers could avoid illegal “entry” into a home simply by
remaining outside the doorway and controlling the movements of
suspects within through the use of weapons that greatly extend the
“reach” of the arresting officers.

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Johnson, 626 F.2d at 757. This language does not indicate that all non-

consensual knock-and-talk encounters trigger Payton. Instead, the court merely

suggests that highly coercive encounters involving officers brandishing weapons

are the functional equivalent of an arrest.

In the end, it is unnecessary in this case to resolve the question of whether

a per se rule exists, or whether a less intrusive—but still non-consensual—knock-

and talk encounter can be evaluated under the Terry reasonableness standard.

Here, the police tactics were sufficiently coercive under Maez to be characterized

as an arrest. Four officers surrounded Reeves’s room at 3 a.m. For at least

twenty minutes they pounded on Reeves’s door and window, while yelling and

loudly identifying themselves as police officers. Because the officers used

extremely coercive tactics to force Reeves to open his door, this encounter should

be characterized as an arrest.

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