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Question Title: Arrest Warrants and Home Entry

E-Newsletter Edition: October 10, 2007

Response Provided By: Brian S. Batterton

Always note that state law may be more restrictive on police power than the U.S. Constitution.

QUESTION:
As a Deputy City Marshal some of our duties include apprehending those persons with outstanding city warrants which arise out of class C misdemeanor offenses such as traffic tickets and Public intoxication. Some of the deputies are confused however when they go and execute these warrants. My question is does an arrest warrant for the person's body give us the right to enter their home and search for them.

Question from Texas - Response tailored to Texas Law

_____

ANSWER:

The United States Supreme Court, in Payton v. New York, held that 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.  i 

The Court of Appeals of Texas has held that Payton applied to both felony warrants and misdemeanor warrants (including misdemeanor capiases, which in Texas, are considered equal to a warrant because they are founded on probable cause). ii  In Green v. State, police went to Green’s apartment to serve two misdemeanor arrest warrants which were for a traffic violation and a failing to appear for the traffic violation.  iii  A woman answered the door and an officer inquired as to whether Green was home. The woman told the officer he was at work and appeared nervous. She then attempted to shut the door on the officer and he blocked the door with his foot and then saw a person asleep on a sofa. At this time the woman ran into the apartment yelling for Green to wake up. The officer, along with back-up officers, entered the apartment and located Green asleep in a bedroom. During a search of his person incident to arrest, police found methamphetamine in his pocket and other drug paraphernalia in plain view, which they seized. Green filed a motion to suppress the evidence and argued that the officer’s entry into his apartment was illegal. The trial court denied the motion to suppress and Green was convicted. He appealed the denial of his motion to suppress.

The Court of Appeals looked at two primary issues. The first issue was whether Payton authorized police entry into a private residence to execute a misdemeanor arrest warrant. The second issue was whether the officer’s possessed a reasonable belief that the suspect was home which is required under Payton.

As to the first issue, the court said that whether a warrant is misdemeanor or a felony is not the relevant issue; the issue is whether a warrant is founded upon a determination of probable cause. iv  Because Texas requires misdemeanor warrants to be predicated upon a finding of probable cause, and in light of our law's equal treatment of felony and misdemeanor warrants, we hold that the limited police authority recognized in Payton to enter a suspect's residence to execute an arrest warrant when police reasonably believe the suspect to be home applies to the execution of both felony and misdemeanor warrantsv  Further the court held that, in Texas, a misdemeanor capias is valid when issued from a court with proper jurisdiction after a neutral magistrate has made a determination of probable cause; therefore, the misdemeanor capias follows the same form and procedure as a felony warrant.  vi 

Next, the court addressed the issue of whether the officers possessed a reasonable belief that Green was home when they entered his apartment. In Payton, the court set out a two pronged inquiry before police may enter a private residence to execute an arrest warrant. First, they must possess a reasonable belief that the residence is the suspect's dwelling, and, second, they must have "reason to believe" that the suspect is within the dwellingvii  Due to a lack of clear definition of a “reason to believe” the court looked to other jurisdictions for a definition. In United States v. Woods, the 5th Circuit Court of Appeals stated the following:

Due to the lack of authority on point, it is difficult to define the Payton "reason to believe" standard, or to compare the quantum of proof the standard requires with the proof that probable cause requires. We think it sufficient to hold that in order for law enforcement officials to enter a residence to execute an arrest warrant for a resident of the premises, the facts and circumstances within the knowledge of the law enforcement agents, when viewed in the totality, must warrant a reasonable belief that the location to be searched is the suspect's dwelling, and that the suspect is within the residence at the time of entry. . . . In evaluating this on the spot determination, as to the second Payton prong, courts must be sensitive to common sense factors indicating a resident's presence.  viii 

The Texas court then applied the facts in Green to the above standards. Here the lease agreement showed that the apartment was currently leased to Green, therefore the first prong was satisfied.

As to the second prong which requires a “reason to believe” that Green was home, the court held that the officers failed to meet the standard. First, they note that this incident took place at 10:00 a.m. on a Wednesday. The officer did not know what time, if at all, Green worked. Next, they did not know what type of car Green drove so they could not point to the presence of an automobile as an indicator that he was home. Additionally, there was no evidence, prior to the officer’s entry into the apartment, which indicated that anyone other than the female at the door was home. The only information offered by the officer was that the female was preoccupied with the room behind her and she seemed nervous. This alone is not sufficient to meet the “reason to believe” prong of Payton.  ix 

Therefore, in light of the unauthorized entry into the apartment to execute the misdemeanor arrest warrants, the court reversed the decision of the trial court and held that the evidence should have been suppressed.

In summary, the rule is listed below.

Police may enter a suspect's residence to execute an arrest warrant when police reasonably believe the suspect to be home applies to the execution of both felony and misdemeanor warrants.

Note that the underlined portion of the above rule sets forth the two pronged test that is contained within that rule. This test requires the police to have

  • A reasonable belief that the suspect is at his or her residence; and
  • A reasonable belief that the suspect is within their residence.

Citations

  1. 445 U.S. 573, 603 (1980)
  2. Green v. State, 78 S.W. 3d 604 (Tex. App. –Fort Worth [2nd Dist.] 2002)
  3. Id.
  4. Id. at 610
  5. Id. at 611
  6. Id.
  7. Payton, 445 U.S. at 603
  8. 560 F.2d 660, 665 (5th Cir. 1977)
  9. Green, 78 S.W. 3d at 614
 
       
 


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