LEGAL QUESTIONS ANSWERED
Question Title: Arrest
Warrants and Home Entry
Edition: October 10, 2007
Brian S. Batterton
Always note that state law may be
more restrictive on police power than the U.S. Constitution.
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
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
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
to execute an arrest warrant when police reasonably believe the suspect to
be home applies to the execution of both felony and misdemeanor warrants. v
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
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 dwelling. vii 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
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
within the knowledge of the law enforcement agents, when viewed in the
totality, must warrant a reasonable belief that the location to be searched
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
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
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.
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
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.
445 U.S. 573, 603 (1980)
Green v. State, 78 S.W. 3d 604 (Tex. App. –Fort Worth [2nd Dist.]
Id. at 610
Id. at 611
Payton, 445 U.S. at 603
560 F.2d 660, 665 (5th Cir. 1977)
Green, 78 S.W. 3d at 614