©2010 Brian S. Battertion, Attorney, Legal & Liability Risk Management Institute (LLRMI.COM) Shepard v. Budnick (11th Cir. 2008 Unpublished)
Law enforcement officers are often faced with the circumstance where they have probable cause to arrest a suspect for a particular crime, but he is inside his home and they are outside. The need for a warrant occurs to the officers, but what if, instead, they can simply knock on the door and get the suspect to the door. This can be a good idea, so long as the officers follow certain clearly established court precedent regarding warrantless in-home arrests.
The Eleventh Circuit Court of Appeals decided Shepard v. Budnick [i], which serves as an excellent review of constitutional law related to warrantless in-home arrests. The facts of Shepard are as follows:
Shepard alleges that around 9:30 p.m. on August 5, 2002, he and his wife were eating dinner in their home when Officer George Davis and Officer Jason Budnick, of the City of Hallandale Beach Police Department, knocked on their front door. Shepard arose from the dining room table, went to the door, and asked, “Who’s there?” After Officer Davis responded, “Hallandale Beach Police Department,” Shepard opened the door, where he faced Officer Davis, who was standing alone, just outside of Shepard’s residence at Shepard’s front door. Shepard asked, “May I help you?” and Officer Davis replied, “We are here to arrest you[;] [y]ou are Dwayne Shepard correct?” Shepard alleges that when he responded, “Yes I am Dwayne Shepard,” Officer Budnick appeared and joined Officer Davis in the doorway. Shepard then asked the officers, “Do you have a warrant?” Neither officer answered. Instead, they entered through the front door, grabbed Shepard by the arm, and pushed him into his living room and onto his sofa, which is about six feet from the front door. The officers arrested him on the sofa. Subsequently, Shepard was charged with lewd and lascivious conduct with a child and contributing to the delinquency of a minor. [ii]
Shepard plead no contest to the charges and was sentenced to probation; however, he violated his probation and was sentenced to fifteen years in prison. He filed suit against Officer Davis and Officer Budnick. [iii] After amending his complaint, he alleged that they violated his Fourth Amendment rights when they entered his home without a warrant or consent and arrested him. Officer Budnick alleged that this was an arrest in the doorway (also called a “threshold arrest”) and the law was not clearly established in this area; as such, the officer asserted that he was entitled to qualified immunity. The district court ultimately decided that the law was not clearly established regarding “doorway” arrest; therefore, Officer Budnick was given qualified immunity from suit.
When a government official, such as a police officer, is sued for a constitutional violation that occurred during a discretionary act, the court normally will first decide whether the officer violated the plaintiff’s constitutional rights. If the officer did not violate the constitution, the court will award the officer “summary judgment,” which means the suit is dismissed against the officer. However, if the court decides that the officer did violate the plaintiff’s constitutional rights, then the court must decide whether the law was clearly established at the time of the constitutional violation. If the law was not clearly established, then the officer is entitled to qualified immunity from suit. If the court determines that the law was clearly established, the officer is not entitled to qualified immunity and the case goes to trial before a jury.
In Shepard, since Officer Budnick was given qualified immunity by the district court, Shepard appealed to the Eleventh Circuit Court of Appeals. On appeal, he argued that this was not a “doorway” or “threshold” arrest, but rather the arrest occurred approximately six feet inside his home. Shepard then argued that, since the officer did not dispute the location of the arrest (six feet inside the home), and since he did not consent to the entry and exigent circumstances were not present, qualified immunity was not appropriate because the law that prohibited warrantless in-home arrests was clearly established.
At the outset the Eleventh Circuit set out to examine court precedent that was relevant to the issue of whether Officer Budnick’s act of entering Shepard’s home without consent, pushing him six feet inside his residence and arresting him, violated the Fourth Amendment. The court of appeals first turned to the United States Supreme Court decision in Payton v. New York. [iv] In Payton, the Supreme Court stated
It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable. [v]
However, the court of appeals noted that, as long as a warrantless arrest inside a home falls into one of the exceptions to the warrant requirement, the arrest may be reasonable under the Fourth Amendment. The court then stated that consent is one of the well-delineated exceptions to the warrant requirement. However, citing Eleventh Circuit precedent, the court stated
For the consent exception to the warrant requirement to apply, the consent must be voluntary, or, as we have stated, the product of an essentially free and unconstrained choice. [vi]
The court of appeals then sought to determine if, when Shepard opened his door and stated that he was in fact Dewayne Shepard, there was some “implied consent” to the officer’s entry into his home. As to “implied consent,” the court of appeals stated
[W]hatever relevance the implied consent doctrine may have in other contexts, it is inappropriate to sanction entry into the home based upon inferred consent. Moreover, we have determined that a defendant’s act of opening his door, stepping back, and placing his hands behind his head did not amount to implied consent to be arrested. [vii]
The court then applied the rules above to the facts of Shepard’s case. The Eleventh Circuit stated
Construing the factual allegations in the light most favorable to Shepard, the record shows that Shepard opened the door in response to the officers’ knock and announcement, asked, “May I help you?”, to which Officer Davis replied, “We are here to arrest you[;] [y]ou are Dwayne Shepard correct?” After confirming his identity, Shepard asked the officers for a warrant…the officers then entered through the front door, grabbed Shepard by the arm, and pushed him about six feet into the living room. Nothing in Shepard’s amended complaint places him in the threshold or inside the doorway…The officers arrested Shepard on the sofa…Accordingly, construing the facts in the light most favorable to Shepard, Officer Budnick did not have Shepard’s consent, either express or implied, to enter the home and arrest him in his living room, six feet within his home. Although one may voluntarily surrender to the police at the door, the facts alleged here show that Shepard neither surrendered to the police nor had an opportunity to do so. viii] [emphasis added]
As such, the court of appeals held that the officer did violate Shepard’s constitutional rights.
The Eleventh Circuit then set out to determine whether the law regarding in-home warrantless arrests in factually similar circumstances was clearly established at the time of the arrest. Again, if the law was not clearly established, then the officer is entitled to qualified immunity from the suit. A constitutional right is considered clearly established when the “contours of the right [are] sufficiently clear [such] that a reasonable officer would understand that what he is doing violates that right.” [ix]
The first case reviewed by the court of appeals was the United States v. Santana. [x] In Santana, the United States Supreme Court held
[A] suspect may not defeat an arrest which has been set in motion in a public place, and is therefore proper under Watson [involving a warrantless arrest in a restaurant], by the expedient of escaping to a private place. [xi]
The court of appeals also noted that the Supreme Court, in Payton v. New York, held
[I]n the absence of consent or exigent circumstances, the warrantless search or seizure of a suspect in his home violates the Fourth Amendment. [xii]
The court of appeals also reviewed Byrd v. Florida [xiii], decided by the Supreme Court of Florida in 1985. In this case, the court held
[T]hat a person could be arrested at the threshold of his residence if he so consented. [xiv]
Lastly, the court of appeals examined its own precedent in the United States v. Edmondson. [xv] In this case, the government argued that Edmondson consented to entry and arrest when an FBI agent ordered him to open his door and step back, he complied and then put his hands on his head. In Edmondson, the Eleventh Circuit held
[A] suspect does not consent to being arrested within his residence when his consent to the entry into his residence is prompted by a show of official authority. [xvi]
In Shepard, the court of appeals then applied the rules above to the facts of the case at hand. They stated
[T]he officers in this case ignored Shepard’s questions, entered through the front door, grabbed Shepard’s arm and pushed him six feet in his living room and onto the sofa, where they arrested him. In essence, the officers not only failed to acquire a warrant or obtain consent before going to Shepard’s house, but also forced their entry into his home. Shepard’s questions about the warrant, if anything, showed a lack of implied consent. [xvii]
The court of appeals also noted that since Shepard was pushed six feet back into his home and arrested, this did not equate to a “threshold” or “doorway” arrest similar to the arrest in Byrd.
Then applying the facts of Shepard’s case to the rules discussed above, the Eleventh Circuit held
Considering the above precedents, on August 5, 2002, the preexisting case law from the Supreme Court, this circuit, and the Supreme Court of Florida clearly established that (1) in the absence of consent or exigent circumstances, a warrantless arrest made within a suspect’s home is unreasonable under the Fourth Amendment; and (2) a person does not consent to being pushed back into his home and arrested in his living room by merely opening the front door in response to a knock and announcement by law enforcement officers, especially when that person immediately asks if the officers have a warrant. Applying this clearly-established law to the facts of this case, a reasonable officer would have had “fair and clear warning” that he could not go to a suspect’s home, knock on his front door, wait for him to answer, and without hearing anything else besides, “May I help you . . . I am Dwayne Shepard,” or “Do you have a warrant,” grab the suspect’s arm, push him six feet into his living room, and arrest him on his couch, all without a warrant of any kind. At this juncture, there is nothing in Shepard’s amended complaint that places him in the threshold or inside the doorway. Simply put, Shepard’s arrest was not a “threshold” arrest. Accordingly, because Officer Budnick violated Shepard’s clearly-established Fourth Amendment rights by arresting Shepard in his home without a warrant, consent, or exigent circumstances, we find that he is not entitled to qualified immunity on Shepard’s unlawful arrest claim. [xviii] [emphasis added]
As such, the court of appeals held that, since the law was clearly established, the district court erred in granting qualified immunity to the officers, and therefore, reversed its decision.
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NOTE:Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
SEE RELATED ARTICLES:
Consent, Exigent Circumstances, and Warrantless Home Entry (2008)
School Threats, Exigent Circumstances And Entry Into Private Premises (2010)
Underage Possession Of Alcohol And Warrantless Home Entry (2010)
When Imminent Destruction of Evidence Authorizes Warrantless Home Entry (2008)
9th Circuit Upholds Warrantless Search of Motor Home (2010)
9-1-1 HANG-UP CALLS: Exigent Circumstances and The 4th Amendment (2010)
Arrest Warrants and Home Entry (Legal Question Response 2007)
Officer with search warrant gets door shut in face… OK to enter? (Legal Question Response 2007)
CITATIONS:
[i] 300 Fed. Appx. 832 (11th Cir. 2008 Unpublished)
[ii] Id. at 833-834
[iii] Note: The case against Officer Davis was later dismissed without prejudice because he left the police department and could not be located for service of the suit.
[iv] 445 U.S. 573 (1980)
[v] Id. at 586
[vi] Shepard, 300 Fed. Appx. At 838 (quoting United States v. Gonzalez, 71 F.3d 819, 829 (11th Cir. 1996))
[vii] Id. at 838 (citing McClish v. Nugent, 483 F.3d 1231, 1241 (11th Cir. 2007); see also United States v. Edmondson, 791 F.2d 1512, 1515 (11th Cir. 1986))
[viii] Id. at 838-839
[ix] Id. at 839 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987))
[x] 427 U.S. 38 (1976)
[xi] Id. at 43
[xii] Payton, 445 U.S. at 590
[xiii] 481 So. 2d 468 (Fla. 1985)
[xiv] Id. at 472
[xv] 791 F.2d 1512 (11th Cir. 1986)
[xvi] Id. at 1515
[xvii] Shepard, 300 Fed. Appx. at 841
[xviii] Id. at 841-842
