United States v. Thabit, 2023 WL 108013 (8th Cir. 2023)
Justin Thabit missed two monthly visits with his parole officer in January and March. When officers conducted a home visit at his mother’s residence, she reported he had a room at the house, but had not spent the night there for several weeks. Officers obtained a parole violation arrest warrant for Thabit. During a warrant roundup briefing, a detective said he had received a tip, “maybe a week prior,” from a confidential informant who told him Thabit was staying at a residence with an unidentified woman and selling drugs.
When officers arrived at the residence, they saw Thabit leaving in his car. They arrested Thabit, then entered the home, conducted a full search, and seized firearms and drugs. Thabit was charged with gun and methamphetamine crimes. The trial court ordered the evidence be suppressed because the officers lacked reasonable suspicion Thabit was residing at the woman’s residence. Clarifying the standard for lawful entry into a third party’s residence based on a parole violation arrest warrant, the court of appeals upheld the suppression. We’ll look at the level of information an officer should have before entering a third party’s residence to make a felony arrest based on an ordinary arrest warrant and based on a parole or probation violation arrest warrant. The rules aren’t exactly simple, and this case shifted the rule for those in the 8th Circuit.
A suspect may be arrested for a felony in any public place in which the suspect is found, whether the arrest is with a warrant or upon probable cause without a warrant. However, different rules apply to arrests made in residences. Unless there is an actual exigency, an officer cannot enter a residence for the purpose of making a warrantless felony (or misdemeanor) arrest (“The Fourth Amendment…prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest” ).
A valid felony arrest warrant carries the inherent authority to enter the named suspect’s home. To allow a proper entry into the home, two questions must be considered: First, is there a reasonable belief the home to be searched is the suspect’s dwelling, and second, is there a reasonable belief the suspect is within the home at the time of entry? The Supreme Court has not yet defined the necessary level of certainty for each consideration. Most courts have ruled that the standard is a “reasonable belief” and is less than probable cause. But not in Thabit’s case, so hang on.
An officer must have a search warrant to enter a third party’s home to make an arrest, even if the officer possesses an arrest warrant (Steagald v. United States, 451 U.S. 204 (1981)). The homeowner or other person in authority over the home can always consent to entry by law enforcement. Even if the wanted suspect protests, the homeowner’s consent is a valid basis for entry to arrest the suspect.
Another exception is exigent circumstances. A non-criminal traffic offense, where the officer is not in immediate pursuit of the suspect, is not sufficiently exigent to allow warrantless entry to arrest (Welsh v. Wisconsin, 466 U.S. 740 (1984)). The exigent circumstances doctrine excuses warrantless compliance with the Fourth Amendment warrant clause in four general circumstances:
- When an officer is in hot pursuit of a fleeing felon,
- When necessary to prevent imminent destruction of evidence,
- To prevent a suspect’s escape,
- And in response to a risk of danger to the police or others. This last circumstance is often referred to as the “emergency aid doctrine.”
These factors are all considered in light of the “risk of danger, the gravity of the crime and the likelihood that the suspect is armed” (Minnesota v. Olson, 495 U.S. 91 (1990)). In Kentucky v. King (563 U.S. 452 (2011)), the Supreme Court limited the exigent circumstances rule where police create the very exigency used to justify warrantless entry: “Under this doctrine, police may not rely on the need to prevent destruction of evidence when that exigency was created or manufactured by the conduct of the police.” A final exception is the doctrine of hot pursuit. The hot pursuit exception to the warrant requirement holds that a suspect may not defeat a proper arrest simply by getting home one or two steps ahead of pursuing police (United States v. Santana, 427 U.S. 38 (1976)). “Hot pursuit” implies an immediate pursuit of a suspect fleeing from officers.
Unless there is an actual exigency, an officer cannot enter a residence for the purpose of making a warrantless felony (or misdemeanor) arrest.
None of the exceptions to the Payton and Steagald rules applied to Thabit’s arrest. It wasn’t his house, the officers did not have a search warrant, no exigent circumstances or hot pursuit were present. Right about now you might be thinking, “He was on parole, had diminished liberties, and the government had significant interests in parole supervision and recidivism prevention.” Good thinking! You may be recalling the Sampson and Knights cases from a few years back.
The Supreme Court upheld a California statute allowing law enforcement officers (not only probation and parole officers) to conduct suspicionless investigatory searches and seizures of parolees at any time (Sampson v. California, 547 U.S. 843 (2006)). The Court ruled that parolees are like prisoners and have substantially diminished privacy interests. A few years before the Sampson decision, in United States v. Knights (534 U.S. 112 (2001)), the Court ruled officers could search the home of a California probationer based on reasonable suspicion because he was subject to a probation condition that allowed suspicionless searches and seizures by any law enforcement officer at any time. However, in neither case did the Court answer the question of the level of suspicion needed to determine whether a parolee resides at a particular place, thus allowing officers to enter and search without a search warrant or other justification.
Some federal courts have applied a standard of whether it was “objectively reasonable” for officers to believe that a parolee resided at a particular location. Others have applied a reasonable suspicion standard, without defining any distinction between reasonable suspicion and objective reasonableness. The 5th, 6th, 9th and 11th Circuits follow a probable cause standard, while the District of Columbia, 10th and 2nd Circuits require something less, such as “reasonable belief.” In Thabit’s case, the court held an “officer must have probable cause to believe a dwelling is the residence of a parolee in order to initiate a warrantless search of a residence not known to be the home of a parolee.”
Where does that split of decisions leave an officer on the street? Some of the rules broadly apply, and until the Supreme Court weighs in, an officer should know:
- A valid felony arrest warrant includes authority to enter the named suspect’s home. The officer should first ask:
- Do I have a reasonable belief the home to be searched is the suspect’s home?
- Do I have a reasonable belief the suspect is inside the home right now?
- In the case of a parole violation arrest warrant, do I have probable cause to believe the home is the violator’s residence?
- At the very least, have I consulted with appropriate legal counsel to assess the authority to enter without a warrant?
- An officer must have a search warrant to enter a third party’s home to make an arrest, even if the officer possesses an arrest warrant.
- Exigent circumstances and hot pursuit may excuse compliance with the warrant requirement.
- Authority to enter does not necessarily create authority to search the residence.
- When there is time to obtain a warrant, a search warrant is always the legally safest basis to enter a residence, whether to apprehend a suspect or parole violator, or to search for evidence and contraband.
In Thabit’s case, the detective could not recall how he had received information about where Thabit was staying. There was no corroboration of the tip. The court held probable cause was lacking and upheld the exclusion of the evidence.
