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Case Style: United States v. Allen
Case Number: 13-3333-cr
Judge: Raymond Lohier
Court: UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Plaintiff's Attorney: WILLIAM B. DARROW, Gregory L. Waples
Defendant's Attorney: DAVID L. MCCOLGIN
Description: The facts are not in dispute. On July 25 or 26, 2012, the Springfield,
Vermont Police Department received a written complaint that on July 23, John
Johnston had been assaulted by a man known to him only as “D.J.” A
Springfield police officer interviewed Johnston on July 26, and based on that
interview, and the officer’s prior experience, he concluded that “D.J.” was in fact
Allen. On July 27, 2012, four Springfield police officers went to Allen’s apartment
with the “pre‐formed plan . . . to arrest [him] for the alleged assault and process
him . . . at the Springfield police station.” J.A. 137.2 Despite having nearly two
days and ample probable cause,3 the officers did not seek a warrant for Allen’s
arrest. Allen’s apartment was located on the second and third floors of a three
story building that housed a hair salon on the first floor. The front door to
Allen’s apartment was on the street level, and led directly to a hallway and
staircase to the second floor. Neither the entrance, the hallway, nor the staircase
was shared by other tenants.
After they arrived, the officers knocked on Allen’s door. Allen heard the
knock, and stepped onto his second‐floor porch. One of the officers requested
that Allen come down to speak with him; Allen complied. Allen opened the door
to his apartment, and during the next five to six minutes that he spoke with the
officers, he remained “inside the threshold” while the officers stood on the
2 See also J.A. 136 (district court noting that officers “travelled [sic] to Defendant’s apartment intending to . . . arrest him”). 3 Allen has never challenged his arrest on the basis of lack of probable cause.
sidewalk. The district court noted that during the encounter, “[n]o weapons
were drawn and the officers did not physically touch [Allen].” J.A. 137.
Allen told the officers that although he knew Johnston, he had not
assaulted him, and had not seen him in several days. Explaining that Johnston
had called him several times, Allen at one point handed the officers his cell
phone so that they could view his call log. The officers looked at the phone, and
returned it to Allen. The officers then told Allen that he would need to come
down to the police station to be processed for the assault. In other words, he was
under arrest. Allen, who had appeared at the door in his stocking feet, asked
whether he could retrieve his shoes and inform his 12‐year‐old daughter, who
was upstairs in the apartment, that he would be leaving with the officers. The
officers advised Allen that he could not return upstairs unless they accompanied
him, which they did.4
Once inside the apartment, one of the officers asked Allen whether he had
anything in his pockets; Allen took out several items, including seven bags of
marijuana. Officers also saw what appeared to be drug paraphernalia in plain
4 On appeal, Allen does not challenge the determination that once he was under arrest, as a matter of law, officers had a “right to remain literally at [his] elbow at all times.” J.A. 148, quoting Washington v. Chrisman, 455 U.S. 1, 6 (1982).
view. Officers escorted Allen out of the apartment, where he was then
handcuffed, placed in the police cruiser, and transported to the police station.
Based in part on the drug paraphernalia that they saw inside the
apartment, as well as the bags of marijuana in Allen’s pockets, the officers
applied for and obtained a search warrant. While executing that warrant, the
officers recovered, among other things, a hand gun and various drug
paraphernalia. Prompted by the fruits of that search, federal agents later
rearrested Allen on the federal charge of being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). Allen admitted to the agents that he
possessed the firearm.
II. Prior Proceedings
After being indicted by a federal grand jury for his violation of 18 U.S.C.
§ 922(g)(1), Allen moved to suppress the firearm, and the statements he made,
contending that both were fruits of a warrantless in‐home arrest in violation of
the Fourth Amendment. A one‐day hearing followed, at which Allen and one of
the Springfield police officers who initially arrested him testified. After the
hearing, the district court denied Allen’s motion in a written opinion and order.
United States v. Allen, No. 5:12‐cr‐130‐1, 2013 WL 1736665 (D. Vt. Apr. 22, 2013).5
The district court cited California v. Hodari D., 499 U.S. 621, 626 (1991) to
conclude that Allen was arrested “while [he] was inside the threshold of his
apartment and the officers were outside on the sidewalk.” J.A. 141. Under
Hodari D., “[a]n arrest requires either physical force . . . or, where that is absent,
submission to the assertion of authority.” 499 U.S. at 626. The district court
reasoned that Allen submitted to the officer’s authority once he asked for
permission to say goodbye to his daughter and retrieve his shoes. Accordingly,
the district court determined that Allen was subjected to an “‘across the
threshold’ arrest,” a conclusion that neither party directly challenges on appeal.6
5 While this citation to an electronic version of the district court’s opinion and order is provided for ease of reference, all direct citations of that opinion are taken from the Joint Appendix. 6 We agree with the district court’s legal conclusion that Allen was subject to an “across the threshold arrest,” but do not agree that Hodari D., provides the proper analytical framework. In that case, the Supreme Court held that a suspect fleeing police in a street encounter was not arrested because he did not “submi[t] to the assertion of authority” by the police officer who ordered him to stop. See Hodari D., 499 U.S. at 625‐26. There was, therefore, no Fourth Amendment seizure until the officer tackled the suspect. Neither the parties nor the district court cites appellate authority applying Hodari D. in the context of citizen‐police encounters in the home. In that context, we believe that the traditional totalityof‐the‐circumstances analysis provides the appropriate framework. See United States v. Mendenhall, 446 U.S. 544, 554 (1980) (“[A] person has been ‘seized’
The district court then analyzed whether such an “across the threshold”
arrest triggers the rule of Payton v. New York, 445 U.S. 573 (1980), when law
enforcement officers have summoned the defendant to that location. Canvassing
precedent from the Supreme Court, this Court, and other courts of appeals, the
district court acknowledged that the case presented a “close[ ] question,” but
concluded that the “pivotal inquiry is whether law enforcement crossed the
threshold of the home in order to effectuate the arrest.” J.A. 145. Accordingly,
the district court determined that Allen’s arrest did not violate the Fourth
Amendment, and denied his suppression motion.
Thereafter, with the Government’s consent, Allen entered a conditional
guilty plea to the felon in possession charge, reserving his right to appeal the
denial of the suppression motion. The district court entered judgment,
sentencing Allen to 23 months’ imprisonment, two years’ supervised release, and
imposed a $100 special assessment. This timely appeal followed, and we now
within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”). Applying that test de novo, we conclude that Allen was arrested while standing inside the threshold of his home, and therefore agree that this case concerns an “across the threshold” arrest. In any event, however, neither party disputes that Allen was arrested while he was still inside his home.
The Fourth Amendment provides in relevant part that the “right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated.” U.S. Const. amend.
IV. The Amendment, therefore, “indicates with some precision the places and
things encompassed by its protections: persons, houses, papers, and effects.”
Jardines, 133 S. Ct. at 1414 (internal quotation marks omitted). But the home is
“first among equals,” because at the Amendment’s “very core stands the right of
a man to retreat into his own home and there be free from unreasonable
governmental intrusion.” Id. (internal quotation marks omitted). Accordingly,
“seizures inside a home without a warrant are presumptively unreasonable.”
Payton, 445 U.S. at 586.
In Payton, the Supreme Court held that the police violated the Fourth
Amendment by physically entering a home without a warrant to effect an arrest.
The Court noted that “physical entry of the home is the chief evil against which
the wording of the Fourth Amendment is directed.” 445 U.S. at 585 (internal
quotation marks omitted). Quoting with approval this Court’s decision in United
States v. Reed, 572 F.2d 412, 423 (2d Cir. 1978), the Court went on to explain the
general rationale for prohibiting warrantless arrests inside the home in the
absence of an exigency:
To be arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home. This is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances, even when . . . probable cause is clearly present.
Id. at 588‐89. It is therefore settled law that, at a minimum, law enforcement
officers violate Payton when, in the absence of exigent circumstances or consent,
they physically enter protected premises to effect a warrantless search or arrest.
See United States v. Stokes, 733 F.3d 438, 444 (2d Cir. 2013); see also Loria v.
Gorman, 306 F.3d 1271, 1286 (2d Cir. 2002) (denying qualified immunity because
“no reasonable officer could have concluded that . . . taking two steps into the
house . . . did not constitute a Fourth Amendment entry”).
Some of our sister circuits have read Payton narrowly, and appear to
conclude that there is no Payton violation unless police physically cross the
threshold and enter the home. See Knight v. Jacobson, 300 F.3d 1272, 1277 (11th
Cir. 2002); United States v. Berkowitz, 927 F.2d 1376, 1386‐88 (7th Cir. 1991);
United States v. Carrion, 809 F.2d 1120, 1128 (5th Cir. 1987). Other circuits have
eschewed that narrow reading, concluding that law enforcement officers may
violate Payton without physically entering the home. See, e.g., Fisher v. City of
San Jose, 558 F.3d 1069, 1074‐75 (9th Cir. 2009) (en banc); United States v. Saari,
272 F.3d 804, 807‐08 (6th Cir. 2001); United States v. Reeves, 524 F.3d 1161, 1165
(10th Cir. 2008). Those cases hold that the “officers need not physically enter the
home for Payton to apply,” partially because “it is the location of the arrested
person, and not the arresting agents, that determines whether an arrest occurs
within a home.” Reeves, 524 F.3d at 1165 (internal quotation marks omitted).
Those cases, however, tend to rely on the legal fiction of constructive or coercive
entry, a doctrine under which certain types of police conduct will be deemed an
entry.7 Under that doctrine, when officers engage in actions to coerce the
occupant outside of the home, they “accomplish the same thing” and achieve
the same effect as an actual entry, and therefore trigger Payton’s protections. See
United States v. Morgan, 743 F.2d 1158, 1166 (6th Cir. 1984).
While entitled to due regard, those cases of course do not bind us. Nor do
any of this Court’s cases decisively answer the question presented by this appeal,
7 See generally Steven B. Dow, “Step Outside Please”: Warrantless Doorway Arrests and the Problem of Constructive Entry, 45 New Eng. L. Rev. 7 (2010).
namely, whether Payton permits warrantless “across the threshold” arrests
where law enforcement officers have summoned the suspect to the front door of
his home. While Payton recognizes that “physical entry of the home is the chief
evil against which the wording of the Fourth Amendment is directed,” 445 U.S. at
585 (emphasis added) (internal quotation marks omitted), the Supreme Court has
“refused to lock the Fourth Amendment into instances of actual physical
trespass.” United States v. United States District Court for E. Dist. Of Mich., 407
U.S. 297, 313 (1972). The principles reflected in the Fourth Amendment “‘reached
farther than the concrete form’ of the specific cases that gave it birth, and ‘apply
to all invasions on the part of the government and its employés of the sanctity of
a man’s home and the privacies of life.’” Payton, 445 U.S. at 585, quoting Boyd v.
United States, 116 U.S. 616, 630 (1886). In light of those principles and for the
reasons that follow, we conclude that where law enforcement officers have
summoned a suspect to the door of his home, and he remains inside the home’s
confines, they may not effect a warrantless “across the threshold” arrest in the
absence of exigent circumstances.
This Court’s seminal case analyzing warrantless arrests in the home, Reed,
predates Payton. There, we addressed the “important and [as of that time] oft
reserved question whether and under what circumstances federal law
enforcement officers may enter the home of a suspect in order to effect a felony
arrest for which they have statutory authority and probable cause but no
warrant.” 572 F.2d at 414. Three armed federal agents knocked on the door of
Reed’s apartment, and Reed opened the door. Id. at 415. The testimony about
what transpired next differed. Reed testified “that the agents ‘rushed in’
immediately after she pulled the door open and then arrested her.” Id. at 422.
One of the arresting agents, however, “testified that he placed Reed under arrest
in the living room‐dining room part of the apartment after advising her at the door
that his purpose was to place her under arrest.” Id. (emphasis added). The
district court, we noted, “believed that Reed was arrested when she opened the
door.” Id. We did not find that factual finding to be clearly erroneous, and
instead reasoned that
[n]o matter which of these versions is most accurate, Reed’s arrest was effected not in a “public” place but in a place protected by the Fourth Amendment. She was not arrested in the hallway of the apartment building. Nor was she standing on the threshold of her apartment in such a way that she would have been inside the apartment by taking a step backward and “outside” by taking a step forward. . . . Rather, she was arrested inside of her home.
Id. at 422‐23 (emphasis added). Regardless of the officer’s position with respect
to the threshold at the time of the arrest, we concluded, Reed retained the
protections of her home. Indeed, we further noted that we did not believe that
the fact that Reed opened the door to her apartment in response to the knock of three armed federal agents operated in such a way as to eradicate her Fourth Amendment privacy interest. To hold otherwise would be to present occupants with an unfair dilemma, to say the least[—]either open the door and thereby forfeit cherished privacy interests or refuse to open the door and thereby run the risk of creating the appearance of an “exigency” sufficient to justify a forcible entry. This would hardly seem fair in situations that present no exigent circumstances in the first place.
Id. at 423 n.9 (citation omitted).
Reed, a decision expressly approved by the Supreme Court in Payton,8
thus provides strong support for Allen’s position. Under one of the factual
scenarios that we accepted as true for purposes of that case, Reed was arrested
while she stood inside her threshold and officers remained outside of it. We held
that if that is what occurred, such an “across the threshold” arrest was
8 In its opinion in Payton, the Supreme Court cited Reed with approval, noting that the decision was “persuasive and in accord with this Court’s Fourth Amendment decisions.” 445 U.S. at 589.
The government argues, however, that Reed and Payton must be read in
light of our more recent decisions in United States v. Gori, 230 F.3d 44 (2d Cir.
2000), and United States v. Titemore, 437 F.3d 251 (2d Cir. 2006). In Gori, police
officers who were surveilling the door of a known “stash house” from the
hallway of the apartment building, were surprised by the arrival of a woman
delivering an order of food to the surveilled apartment. 230 F.3d at 46. The
officers, who had no warrant, permitted the woman to carry out her delivery,
and after an occupant of the apartment opened the door in response to her knock,
the officers, with their weapons drawn and badges displayed, ordered all six of
the occupants to step outside for the purposes of a brief investigatory detention.
Id. at 47. Eventually, two of the occupants were placed under arrest. Id. at 48.
Those two occupants later sought to suppress physical evidence seized
from the apartment and the statements they made, contending that police had
entered the apartment without consent and in the absence of exigent
circumstances. Id. The district court granted the suppression motion. While
crediting the officers’ testimony that they did not physically cross the
apartment’s threshold, the district court nevertheless determined that the officers’
conduct constituted an entry into the apartment sufficient to trigger Payton. Id.
at 48‐49. A divided panel of this Court reversed, concluding that Payton was not
implicated. Because the occupants opened the apartment “in response to the
knock of an invitee, there was no expectation of privacy as to what could be seen
from the hall.” Id. at 53, citing Santana v. United States, 427 U.S. 38 (1976).9
Thus, the officers “needed no warrant to temporarily ‘seize’ the occupants and
conduct a limited investigation,” id., more commonly known as a Terry stop.
This Court reasoned that “Terry must encompass” situations in which “police
standing in the hallway come face to face with the suspects through a door
opened voluntarily by the suspects in response to a knock by an invitee.” Id. at
9 In Santana, police sought to arrest Santana following an undercover narcotics purchase at her residence. As the police drove up to the house, “[t]hey saw Santana standing in the doorway of the house with a brown paper bag in her hand.” 427 U.S. at 40 (1976) (footnote omitted). As the officers approached within 15 feet of where Santana was standing and got out of their van shouting police, Santana retreated into the house. Police officers chased her through the open door, causing packets of heroin to spill out of the paper bag that she had been holding, and arrested her in the vestibule of her home. Id. at 40‐41. The exigent circumstance of “hot pursuit” excused the warrant requirement. Id. at 42‐43. See also Welsh v. Wisconsin, 466 U.S. 740, 750 (1984) (describing Santana as a case involving “hot pursuit of a fleeing felon”). Santana does not govern this case because the government has never contended that exigent circumstances existed here.
By relying on Santana and the principles articulated in Terry, the panel
majority was able to avoid the question of whether “Payton’s solicitude is
aroused when a dwelling is penetrated by the voice of a police officer standing
outside.” Id. at 51. Further, the panel noted that “[b]ecause the defendants
opened the door in response to a knock initiated by someone whom they
invited,” it did not “need [to] not consider whether a suspect loses the
heightened protection of Payton merely by opening a door in response to a knock
by law enforcement.” Id. at 52 n.4. Given those constraints, the majority
concluded that “[o]nce a door is voluntarily opened by an occupant in response
to a knock by someone invited by the occupant, the Fourth Amendment’s
protection of the home is not abrogated so long as the officer’s conduct was
reasonable under the circumstances.” Id. at 54.
Then‐Judge Sotomayor dissented, concluding that Terry stops were not
permissible in the home. Id. at 62‐63 (Sotomayor, J., dissenting). Unlike the
majority, she further concluded that Payton was applicable “because the
occupants . . . were within the boundaries of the apartment and had a reasonable
expectation of privacy against government entry into the home.” Id. at 61
(emphasis added). Payton, in her view, was violated because “[w]ith their show
of authority from outside the door,” the officers made a “warrantless constructive
entry into the home,” and thereby “achieved the same result . . . they would have
achieved had they crossed into the apartment and removed the occupants.” Id.
at 62. Were police able to circumvent Payton by forcing occupants outside,
“Payton’s warrant and probable cause requirements would be meaningless.” Id.
In Titemore, a police officer wishing to speak with a suspect in his home
walked across the front lawn, up three steps to a porch, and approached a
sliding‐glass door. 437 F.3d at 254, 259. The glass door was open, but the screen
was closed. Standing outside the screen door, the officer spoke to Titemore, who
was sitting in the room with a firearm nearby. Id. The district court denied
Titemore’s motion to suppress the eventual seizure of the gun as the fruit of an
unlawful entry onto his property, holding that an officer does not offend the
Fourth Amendment when he approaches any part of a building where uninvited
visitors could be expected. United States v. Titemore, 335 F. Supp. 2d 502, 506 (D.
We affirmed the district court with “little difficulty,” because “when a
police officer enters private property for a legitimate law enforcement purpose
and embarks only upon places visitors could be expected to go, observations
made from such vantage points are not covered by the Fourth Amendment.” 437
F.3d at 260 (internal quotation marks omitted). A police officer not armed with a
warrant may approach a home and knock, precisely because that is “no more
than any private citizen might do.” Kentucky v. King, 563 U.S. 452, 469 (2011).
When the officer approached Titemore’s door, there was not yet probable cause
to arrest him; the officer intended only to ask him questions about an act of
vandalism that was under investigation. Titemore was not placed under arrest
during the ensuing interaction, and the officer’s entry into the house and seizure
of a rifle were based on Titemore’s consent. 437 F.3d at 259‐60.8
Nothing in Gori or Titemore undermines our holding in Reed, or suggests
that officers may go to a person’s home, call him or her to the door, and then
arrest him while he remains in his home. Gori depends on the fact that the
officers’ surveillance was interrupted by the arrival of the delivery person, which
led the officers to observe the suspects through a door that had been opened
8 To the extent that Titemore may be read broadly to permit law enforcement officers to enter curtilage to search for evidence, that broad holding has been abrogated by Jardines, 133 S. Ct. at 1416 (holding that “background social norms that invite a visitor to the front door do not invite him there to conduct a search”).
independent of any action or request by the police. The closeness of the case is
reflected in Judge Sotomayor’s dissent even on those facts. Titemore concerns the
authority of the police to approach the door of a residence to ask questions, and
does not address the legality of a warrantless, non‐exigent arrest of a person
inside his home by officers standing outside.
We believe that a careful reading of Reed establishes a precedent, binding
on this panel, that when officers approach the door of a residence, announce their
presence, and place the occupant under arrest when he or she, remaining inside
the premises, opens the door in response to the police request, the arrest occurs
inside the home, and therefore requires a warrant. We follow that precedent
because we must. But we are also content to do so because we believe that the
decision was correct.
In recent years, the Supreme Court has repeatedly made clear that the
Fourth Amendment applies with its greatest force in the home. See, e.g.,
Jardines, 133 S. Ct. at 1414 (“[W]hen it comes to the Fourth Amendment, the
home is first among equals.”); Georgia v. Randolph, 547 U.S. 103, 115 (2006) (“[I]t
is beyond dispute that the home is entitled to special protection as the center of
the private lives of our people.”). While the “ultimate touchstone of the Fourth
Amendment is ‘reasonableness,’” Riley v. California, 134 S. Ct. 2473, 2482 (2014),
it remains true that “searches and seizures inside a home without a warrant are
presumptively unreasonable.” Brigham City, Utah v. Stuart, 547 U.S. 398, 403
(2006) (internal quotation marks omitted). Although law enforcement officers,
like any other citizens, have an implied license to approach a home, knock on the
door, and try to speak with the occupants, King, 563 U.S. at 469; see also
Titemore, 437 F.3d at 259‐60, “[t]he scope of [that] license – express or implied – is
limited not only to a particular area but also to a specific purpose.” Jardines, 133
S. Ct. at 1416. Such a purpose generally does not include conducting a
warrantless search, id., or likewise, a warrantless arrest.
Bearing in mind that the government bears a “heavy burden” when
attempting to justify warrantless arrests in the home, see Welsh v. Wisconsin, 466
U.S. 740, 749‐50 (1984), in light of our precedent and recent Supreme Court case
law, we conclude that Allen’s “across the threshold” arrest violated the Fourth
Amendment. If the rule of Payton, and the fundamental Fourth Amendment
protection of the home on which it is based, are to retain their vitality, the rule
must turn on the location of the defendant, not the officers, at the time of the
arrest. We therefore hold that irrespective of the location or conduct of the
arresting officers, law enforcement may not cause a suspect to open the door of
the home to effect a warrantless arrest of a suspect in his home in the absence of
While it is true that physical intrusion is the “chief evil” the Fourth
Amendment is designed to protect against, Payton, 445 U.S. at 585, we reject the
government’s contention that this fact requires that Payton’s warrant
requirement be limited to cases in which the arresting officers themselves cross
the threshold of the home before effecting an arrest. The protections of the home
extend beyond instances of actual trespass. As then‐Judge Sotomayor observed,
“Payton’s warrant and probable cause requirements would be meaningless,”
Gori, 230 F.3d at 62 (Sotomayor, J., dissenting), if officers could effect warrantless
in‐home arrests through shows of authority.
As a practical matter, allowing the police to arrest a subject in his home,
even without first entering the home, would undermine the barrier against
government intrusions into the home that the warrant requirement attempts to
erect. In cases like this one, the arrest takes place in the home, and as this case
illustrates, a physical intrusion into the home will very frequently follow the
There is no dispute in this case that Allen was arrested while still in his
home. The government does not contend that Allen was free to refuse the
officers’ command that he would have to come to the police station with them, or
that a “reasonable person” would have felt free to do so. See United States v.
Mendenhall, 446 U.S. 544, 554 (1980). The government does not and could not
contend that Allen made a consensual decision to accept a police invitation to
discuss matters with them at another location. From the point at which the
officers told Allen that he would need to come down to the police station to be
processed for the assault, they had asserted control over his person. Allen
reasonably believed that he needed the officers’ permission to return upstairs to
get his shoes and to say goodbye to his daughter, and the officers confirmed that
belief, advising him that he could go upstairs only if he was accompanied by one
or more officers. The result of the “across the threshold” arrest was exactly the
same as if the officers had entered the apartment and arrested Allen inside, save
that the intrusion into the apartment’s interior followed rather than preceded the
announcement that Allen was under arrest.
By advising Allen that he was under arrest, and taking control of his
further movements, the officers asserted their power over him inside his home.
That they did so is evident if we consider what would have happened if Allen,
after being told in effect that he was under arrest, had simply closed the door and
retreated deeper into his home. It is inconceivable that the officers would at that
point have shrugged their shoulders and turned away. An arrested person is,
and should be, arrested: When the police are authorized to take a person into
custody, and undertake to do so, they must have the authority to make the arrest
effective if the suspect refuses to comply.
A rule that permitted an arrest “across the threshold,” but allowed the
arrested person to refuse the arrest simply by closing the door, would not be
viable, for it would undermine the authority of the police and encourage
resistance by those who were aware of the rule. The “right to remain literally at
[an arrestee’s] elbow,” Washington v. Chrisman, 455 U.S. 1, 6 (1982), attaches
immediately upon arrest. But if that is so, then an arrest “across the threshold”
will often lead to the very intrusion into the home that Payton warns is the “chief
evil” against which the warrant requirement protects. 445 U.S. at 585.
The government’s effort to invoke the authority of Hodari D. to claim that
Allen was only arrested when, and because, he submitted to the officers’ demand
rather than resisting it, is unpersuasive. Under Hodari D., “[a]n arrest requires
either physical force . . . or, where that is absent, submission to the assertion of
authority.” 499 U.S. at 626 (emphasis omitted). We know of no authority that
applies the rule of Hodari D., which was crafted to deal with police‐citizen
encounters on the street, to in‐home encounters. On the street, the police may
enforce their lawful commands by force, chasing down and overcoming a suspect
who refuses to comply with an officer’s announcement that the suspect is under
arrest. If applied with due regard for the sanctity of the home, however, the
Hodari D. approach would be unworkable in the context of an “across the
threshold” arrest. If the rule of Payton is respected, an officer lacking a warrant
would have to stop at the threshold and allow a suspect to defy arrest.
Alternatively, if the “across the threshold” arrest is to be rendered effectual, the
police would have to be authorized to pursue the suspect into his home,
undermining the Payton rule. The government’s argument injects an incoherent
third layer between consensual police‐citizen encounters and Fourth Amendment
seizures – the quasi‐voluntary arrest, in which a suspect does not freely agree to
accompany the officers, but rather is under arrest, yet only to the extent that he
agrees to be. The Hodari D. framework thus cannot properly be applied to police
encounters with persons inside their homes.
Allen’s behavior cannot be seen as waiving or forfeiting the protections of
the Fourth Amendment. While Allen had no obligation to open the door or to
speak to police officers in the first place, see King, 563 U.S. at 470, the fact that he
– as would most reasonable people – chose to do so does not mean that he
forfeited the Fourth Amendment’s protections of the home. As in Reed, “to hold
otherwise would present occupants with an unfair dilemma,” 572 F.2d at 423 n.9,
and would discourage citizens from opening the door to speak with law
enforcement officers. The government does not contend that Allen consented to
the officers’ entry into his home. Neither is it argued – nor could it be, on these
facts – that any exigency existed that would excuse the need for a warrant.
While the consequences of the rule advocated by the government are
problematic, the consequences of the rule gleaned from Reed do not present
comparable difficulties. Certainly there is no difficulty on the facts of this case.
Here, the officers had probable cause to arrest Allen two days before the arrest,
ample time to obtain a warrant. Any problems in effecting the arrest were thus
the result of their decision to forgo seeking a warrant, and instead go to Allen’s
home with the “pre‐formed plan . . . to arrest [him]” without a warrant. J.A. 137.
Nor would application of the Reed rule create problems in cases in which
probable cause is initially lacking, but develops during the course of a “knock
and talk” visit to the suspect’s home. If the circumstances create an exigency
(say, the police interview yields the information that the suspect has a bomb
inside his apartment), the exigent circumstances exception to the warrant
requirement will permit the officers to cross the threshold and make the arrest.
Absent such exigency, the availability of telephonic warrants, the ability of
officers to surveil the home until a warrant is obtained, and the power to make a
warrantless arrest if the suspect emerges from his home into the street, see United
States v. Watson, 423 U.S. 411, 413, 417‐18 (1976), should permit effective arrests
in virtually all cases.
Finally, unlike our sister circuits, we do not believe that the legal fiction of
“constructive” or “coercive” entry is necessary to reach this result, nor that it
provides adequate guidance to law enforcement officers or to the judiciary who
must review these liminal cases. Under that doctrine, an “across the threshold”
arrest counts as an entry into the home by the police if their command to the
occupant to submit to arrest is sufficiently forceful and compelling, but not if, as
in this case, the occupant calmly responds to an authoritative, but polite,
command to accompany the officers and submit to police custody. Such a rule is
beset with practical problems. As the author of one leading treatise has
recognized, the need to sort out whether an arrest occurred in, at, on, or by the
threshold already presents close fact‐finding issues for the district courts. See 3
Wayne R. LaFave, 3 Search and Seizure: A Treatise on the Fourth Amendment §
6.1(e) (5th ed. 2012). To add an additional layer of uncertainty to that burden by
requiring courts to determine whether a non‐exhaustive list of factors, such as the
events immediately preceding or accompanying the order, the number and
location of officers, the nature and content of the words used to transmit the
command, and whether police guns are holstered or brandished, constitute
circumstances sufficient to trigger Payton would multiply the difficulties of
applying the rule. See, e.g., Saari, 272 F.3d at 808. Such a rule not only requires
courts to “employ metaphysical subtleties to resolve Fourth Amendment
challenges,” Gori, 230 F.3d at 54 (internal quotation marks omitted), but also
contravenes the “general preference to provide clear guidance to law
enforcement through categorical rules,” Riley, 134 S. Ct. at 2491.
Apart from these practical consequences, the “constructive entry” rule
strikes us as conceptually muddled. Turning the application of Payton on
whether the officers physically entered the home seems to us undesirable, but it
at least presents a clear rule with a clear rationale, rooted in the special protection
of the home against governmental intrusion. But if that is to be the primary rule,
it is unclear what rationale supports an exception where the officers remain
outside, but convey their command to the occupant with sufficient force to
ensure that he will comply. More to the point, the reasons for applying the
Payton rule in the “constructive entry” cases is equally applicable to the present
case. Exerting the authority of the police to require a suspect to leave his home to
be arrested is a sufficient “constructive” entry to require a warrant. The
command of an officer, legally entitled to make an arrest by the existence of
probable cause, is, and should be, a sufficient exercise of authority to require the
suspect to comply with that command, whether or not the officer backs the
command with a sufficiently loud and clear threat of force. Such a command
projects the authority of the police into the home, and requires a warrant under
9 To the extent the government argues that adhering to the Reed rule regarding “across the threshold” arrests would require a warrant before the police could telephone or e‐mail a suspect to demand his appearance, we are content to leave that issue for another day. It is doubtful whether such a practice, if it exists at all, could amount to a seizure, any more than the issuance of a summons or
In short, we embrace the rule, which in any event we are compelled to
follow by the binding circuit precedent of Reed, that where law enforcement
officers summon a suspect to the door of his home and place him under arrest
while he remains within his home, in the absence of exigent circumstances,
Payton is violated regardless of whether the officers physically cross the
threshold. That rule applies regardless of whether the police “constructively” or
“coercively” entered the apartment through shows of force or authority beyond
that conveyed by the simple command to the occupant to submit to arrest. We
believe that this rule provides clear guidance to law enforcement, avoids undue
complexities and perverse incentives to householders not to open their doors to
inquiring police officers, and most importantly, ensures that the Fourth
Amendment protections, which are at their zenith in the home, are adequately
subpoena does. In contrast, the present case involves the highly traditional arrest procedure of a face‐to‐face announcement by one or more officers that a suspect is under arrest and must immediately accompany the officers and submit to their direction.
Outcome: For the foregoing reasons, we VACATE appellant’s conviction, REVERSE
the denial of the suppression motion, and REMAND the case for further
proceedings consistent with this opinion.