Fourth Circuit Decision on the Constitutional Requirements for a Lawful Entry

Case reviews nonconsensual police entry into a private residence to arrest an occupant


Kendrick Brinkley was the subject of an arrest warrant for the unlawful possession of a firearm by a convicted felon. ATF Special Agent Jason Murphy was in charge of a federal-state task force in Charlotte, North Carolina that was responsible for locating and arresting Brinkley. Murphy received information in February 2017 that Brinkley may be located at either of two local addresses.

Murphy obtained a water bill for one of the addresses that had Brinkley’s name on it. The other address was an apartment located on Stoney Trace Drive, Mint Hill, North Carolina. Detective Robert Stark, a task force member, checked a North Carolina statewide law enforcement database that showed Brinkley received a traffic citation on January 2, 2017, that displayed the Stoney Trace Drive address. Stark also checked a North Carolina Department of Corrections database that showed Brinkley to be connected to the Stoney Trace Drive address “at some point in January” 2017. The law enforcement database contained several other different addresses for Brinkley in 2016, one added in late December 2016.

Detective Stark located Brinkley’s Facebook page and observed some photos that led him to believe that Brinkley was dating Brittany Chisholm. He checked the law enforcement database and found that she was also connected to the Stoney Trace Drive address. Stark and Murphy decided that they would attempt to arrest Brinkley at the Stoney Trace Drive address the next morning. Stark, Murphy and three other officers arrived at the suspected location the next day and Stark knocked at the front door.

The court stated that in its view, “the home takes pride of place in our constitutional jurisprudence.”

The officers heard movement inside the residence and after about a minute a female asked who was there and Stark answered, “It’s the police.” Officers heard additional movement inside for another minute and then Brittany Chisholm opened the door.

Stark told her they were looking for Brinkley and requested permission to enter. Chisholm did not respond but instead became very nervous. She looked back over her shoulder and officers observed an unknown female inside the apartment. They also heard a noise coming from a back bedroom. Both women were observed looking backward toward that bedroom.

Stark asked Chisholm again if the officers could enter to look for Brinkley. Chisholm denied entry and asked if the officers had a search warrant. The officers decided to enter without Chisholm’s permission based upon the information they had accumulated at the point of entry and arrested Brinkley in the back bedroom.

The officers executed a protective sweep of the premises. During the sweep, they observed digital scales, a plastic bag containing cocaine base and a bullet. They obtained a search warrant for the residence and located three firearms and firearm magazines. Brinkley was later indicted for possession of cocaine base with intent to distribute and possession of a firearm. Brinkley moved to suppress the evidence gleaned from the search warrant. Brinkley argued that (1) police lacked probable cause to believe that he resided in the Stoney Trace Drive residence and (2) the officers did not possess probable cause to believe that he was present inside when they entered.

The Federal District Court Judge denied the motion to suppress and after entering a conditional guilty plea, Brinkley filed an appeal with the Fourth Circuit Court of Appeals.

THE DECISION OF THE FOURTH CIRCUIT

The Court of Appeals reversed the decision of the lower federal court. [1] The court first noted that according to the Supreme Court of the United States in Payton v. New York, [2] an arrest warrant and a reasonable belief that the subject of the warrant is present in his/her own residence is sufficient legal authority for police to enter the subject’s own residence to arrest him/her. The Fourth Circuit further observed that the Supreme Court ruled one year later in Steagald v. United States, [3] that absent emergency circumstance or consent, police are required to obtain a search warrant to enter third party private premises to arrest the subject of an arrest warrant who does not reside in that location.

The Supreme Court made clear in the Steagald situation, that the third-party owner of a particular residence has specific Fourth Amendment rights in the sanctity of the premises that can only be overcome with a search warrant. In that situation, absent consent or exigent circumstances, the arrest warrant for the person believed present at the location is not sufficient to protect the rights of the third-party owner of the residence.

PROBABLE CAUSE REQUIRED THAT THE SUBJECT OF AN ARREST WARRANT IS AN ACTUAL RESIDENT OF A PARTICULAR RESIDENCE AND IS PRESENT AT THE TIME OF ENTRY

The Fourth Circuit noted that there is a disagreement among the majority of federal courts of appeal concerning whether police need probable cause to believe that the subject of an arrest warrant is an actual resident of a private residence and is present at the time of entry before entering the premises to arrest that person. [4]

After taking careful note of the split between the federal circuits on this issue, the Fourth Circuit decided that probable cause is necessary to believe that the subject of an arrest warrant resides at a particular location and is present at the time of entry. [5]

The court explained that “requiring that law enforcement officers have probable cause to believe their suspect resides at and is present within a dwelling before making a forced entry is the only conclusion commensurate with the constitutional protections the Supreme Court has accorded to the home.” The court stated that in its view, “the home takes pride of place in our constitutional jurisprudence.”

APPLICATION OF THE “PROBABLE CAUSE” STANDARD TO THE ISSUE OF RESIDENCY

The Fourth Circuit examined the information officers had concerning whether Brinkley actually resided at the Stony Trace Drive residence.

The court observed that while the law enforcement database relied upon by officers disclosed the two most recent January 2017 entries that linked Brinkley to the Stony Trace Drive address, it also displayed “many others – including the two immediately preceding entries, one added just five days earlier [that] linked Brinkley to other addresses.” Further, the police had obtained a utility bill in Brinkley’s name for a different address. The court stated that utility bills typically constitute strong evidence of a person’s residence but added that the “officers did not look into this residence” or any of the other addresses found in the database although listed multiple times.

The court observed that the police review of Facebook showed that Brinkley may be dating Brittany Chisholm and that she was connected to the Stoney Trace Drive address. This provided officers with an additional reason to conclude that he “might well have stayed at Chisholm’s home, but did not speak to whether he did so as a resident or [an] overnight guest.” The court concluded that further investigation was necessary to establish probable cause that Brinkley was a resident of the premises.

The court suggested that police surveillance of the suspected location and possible inquiries with trusted sources like an apartment manager would likely provide officers with the probable cause required to establish that Brinkley was a resident of the premises.

DID THE OFFICERS HAVE PROBABLE CAUSE TO BELIEVE BRINKLEY WAS PRESENT AT THE TIME OF ENTRY?

The court determined that the officers did not have probable cause to believe that Brinkley was inside the apartment at the time of entry. The prosecution argued that the information police had that Brinkley may reside in the apartment; the time of entry (8:30 am); Chisholm’s delay in opening the door; Chisholm’s nervous demeanor; the sounds of movement from the rear of the apartment; and Chisholm and her guest looking backward when taken together established probable cause that Brinkley was present. The court disagreed.

The court rejected the information police had that suggested Brinkley possibly resided at the apartment because it did not rise to the probable cause level. The court explained, “When police know a suspect lives somewhere, generic indicia of presence may suggest that he is there, but when police are uncertain about where he lives, the same signs suggest only that someone is there – not necessarily the suspect.” The court was not persuaded by the other points argued by the prosecution and stated, “When police have limited reason to believe a suspect resides in a home, generic signs of life inside and understandably nervous reactions from residents, without more, do not amount to probable cause that the suspect is present within.”

CONCLUSION

This case presents law enforcement officers with an instructional reminder of several key Fourth Amendment constitutional requirements before attempting to arrest a person located in a residence.

These requirements include:

  • An arrest warrant is required, absent consent or exigent circumstances, before officers can enter a person’s own residence to apprehend him/her.
  • A search warrant is necessary, absent consent or emergency circumstances before officers can enter a third-party residence to arrest a subject located inside that residence. The existence of an arrest warrant for the subject inside the residence is not sufficient to overcome the Fourth Amendment rights of the third-party owner.
  • When officers seek to enter a subject’s own residence to arrest him/her, several Federal Circuit Courts of Appeal (see footnote 4) require officers to possess, in addition to an arrest warrant for the subject, probable cause to believe the subject actually resides in the premises and probable cause that he/she is present inside at the time of entry.
  • A smaller number of federal circuits (see footnote 4) take the position that when officers have an arrest warrant for a subject and seek entry to the subject’s own residence to arrest him/her, they need less than probable cause to believe the subject resides there and is present at the time of entry. Facts amounting to the lesser standard of a “reasonable belief” would suffice.


References

1. United States v. Brinkley, (No. 18-4455) (4th Cir. 2020).

2. See, Payton v. New York, 445 U.S. 573 (1980). The Supreme Court ruled “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.” (Id. at 603).

3. 451 U.S. 204 (1981).

4. Some federal circuits including the First, Second, Tenth, and the D.C. Circuit require less than probable cause (i.e., a “reasonable belief”) that the subject of an arrest warrant is an actual resident of a residence and is present at the time of entry before police can enter to arrest him. See e.g., U.S. v. Werra, 638 F.3d 326, 337 (1st Cir. 2011); U.S. v. Lauter, 57 F.3d 212, 215 (2nd Cir. 1995); Valdez v. McPheters, 172 F.3d 1220, 1224 (10th Cir. 1999); U.S. v. Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005). In Thomas, the D.C. Circuit explained that the standard was a “reasonable belief” that the suspect resided in the premises and was present at the time of entry. However, the court made clear that this standard was less than probable cause.

Several other federal appellate courts have required, in addition to an arrest warrant, that law enforcement officers possess probable cause to believe the subject of the arrest warrant actually resides in the premises to be searched and probable cause to believe he/she is present at the time of entry. See, U.S. v. Vasquez-Algarin, 821 F.3d 467, 477 (3d Cir. 2016); U.S. v. Barrera, 464 F.3d 496, 500 (5th Cir. 2006); U.S. v. Hardin,539 F.3d 404, 415 (6th Cir. 2008); U.S. v. Jackson, 576 F.3d 465, 469 (7th Cir. 2009); U.S. v. Gorman, 314 F.3d 1105, 1114 (9th Cir. 2002). It should be noted that the Seventh Circuit has indicated an inclination to rule this way.

5. The Fourth Circuit covers the states of Maryland, North Carolina, South Carolina, Virginia and West Virginia. The Third Circuit covers Pennsylvania, Delaware, New Jersey, and the Virgin Islands. The Fifth Circuit covers Louisiana, Mississippi and Texas. The Sixth Circuit covers Ohio, Michigan, Kentucky and Tennessee. The Seventh Circuit covers Illinois, Indiana and Wisconsin. The Ninth Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and the Mariana Islands.

The First Circuit covers, Massachusetts, New Hampshire, Maine, Rhode Island and Puerto Rico. The Second Circuit covers New York, Connecticut and Vermont. The Tenth Circuit covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. The Washington D.C. Circuit covers the District of Columbia.

About the author

John Michael Callahan served in law enforcement for 44 years. His career began as a special agent with NCIS. He became an FBI agent and served in the FBI for 30 years, retiring in the position of supervisory special agent/chief division counsel. He taught criminal law/procedure at the FBI Academy. After the FBI, he served as a Massachusetts Deputy Inspector General and is currently a deputy sheriff for Plymouth County, Massachusetts. He is the author of two published books on deadly force and an upcoming book on supervisory and municipal liability in law enforcement.

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