On October 16, 2019, the Eleventh Circuit Court of Appeals decided Bailey v. Swindell et al.[i], in which the court examined whether a deputy violated the Fourth Amendment when he arrested a person inside his residence without a warrant. The relevant facts of Bailey, taken directly from the case, are as follows:
The argument had occurred when Bailey stopped by the couple’s marital home to retrieve a package. Bailey no longer lived in the home with Rolinger and their two-year-old son, as the couple was embroiled in a contentious divorce. When Bailey rang the doorbell—seemingly more than once—he woke the boy, who started to cry. Rolinger came to the door but refused to open it and told Bailey to leave. Bailey responded that he wasn’t leaving without his package, and Rolinger eventually informed him that she had put it in the mailbox. Bailey retrieved the package and departed.
Rolinger went to her mother’s house and called 911 to report the incident to police. In response to the call, Deputy Andrew Magdalany was dispatched to interview Rolinger, and Swindell went to talk to Bailey. At some point before Swindell reached Bailey, he called Magdalany and gathered additional details about the encounter and the surrounding circumstances. Magdalany told Swindell, for instance, that in the three months since Bailey’s separation from his wife, he had visited the marital residence repeatedly, moved items around in the house, and installed cameras without his wife’s knowledge. Magdalany also explained that Rolinger was “fear[ful]” and believed that her husband had “snapped.” Even so, he told Swindell that he had not determined that Bailey had committed any crime.
Armed with this information, Swindell approached Bailey’s parents’ home—where Bailey was living—knocked on the door, and told Bailey’s mother Evelyn that he wanted to speak to Bailey. Bailey came to the door and stepped out onto the porch, accompanied by his brother Jeremy. Bailey, Evelyn, and Jeremy all remained on the porch during the encounter, although only Bailey spoke with Swindell. Swindell immediately advised Bailey that he was not under arrest. Shortly thereafter, Swindell retreated off the porch to establish what he described as a “reactionary gap” between himself and Bailey—a distance that Jeremy estimated could have been as far as 13 feet. Swindell asked Bailey to speak with him privately by his patrol car, but Bailey declined, saying that he wasn’t comfortable doing so. Swindell then told Evelyn and Jeremy to go back inside so that he could talk to Bailey alone, but they, too, refused. Bailey asked Swindell why he was there, but Swindell initially didn’t respond; he eventually said that he was there to investigate, although he never clarified exactly what he was investigating. Frustration growing, Swindell then repeatedly demanded—at a yell—that Evelyn and Jeremy return to the house and that Bailey talk to him by his patrol car, but no one complied.
Bailey then announced that he was heading inside and turned back into the house. Without first announcing an intention to detain Bailey, Swindell charged after him and “tackle[d] [him] . . . into the living room,” simultaneously declaring, “I am going to tase you.” Importantly for our purposes, by that time Bailey was—as he, Evelyn, and Jeremy all testified—already completely inside the house. Swindell then proceeded to arrest Bailey.[ii]
Bailey filed suit in district court and alleged that Swindell violated his rights under the Fourth Amendment when he arrested him in his home without a warrant. The district court held that there was probable cause for the arrest and granted qualified immunity and summary judgment to Deputy Swindell. Bailey appealed this decision to the Eleventh Circuit Court of Appeals.
On appeal, Bailey argued that the district court, even assuming the arrest was based on probable cause, failed to address whether the arrest violated the Fourth Amendment because it was a warrantless arrest that occurred in his home without consent or exigent circumstances. Thus, the issue on appeal was whether an officer who has probable cause to arrest a person, can enter that person’s home and arrest them if they were previously standing outside the home.
The court of appeals began by noting the law related to qualified immunity. When an officer is engaged in a discretionary function, such as deciding whether to effectuate an arrest, in order to defeat the officer’s qualified immunity, the plaintiff must
show both (1) that [he] suffered a violation of a constitutional right and (2) that the right [he] claims was ‘clearly established’ at the time of the alleged misconduct.[iii]
The plaintiff argued that (1) that Deputy Swindell lacked probable cause to arrest him and (2) Deputy Swindell impermissibly arrested him in his residence without a warrant. The court decided to assume, without holding, that the deputy had probable cause to arrest Bailey. This is because, even if the deputy had probable cause to arrest Bailey, for the arrest to not violate the Fourth Amendment, the deputy must have entered Bailey’s home in a constitutionally permissible manner.
The court then set out to examine the law regarding arrests in residences. The court of appeals first examined the United States v. Santana.[iv] In Santana, the police conducted a sting operation. They then went to Santana’s home to arrest her for selling heroine. The police approached the suspect, Dominga Santana, as she was standing in her doorway holding brown paper bag. The officers, who were approximately fifteen (15) feet away, identified themselves as police and displayed identification. Santana fled into her residence, and the police followed her and arrested her inside her residence. They did not have a warrant. The Supreme Court held that the in-home warrantless arrest was legal under the Fourth Amendment because the arrest began in a public place, when she was standing on her doorway. As such, she could not retreat into a private place to defeat an arrest that was initiated in a public place. The court considered this “hot pursuit.”
In the case at hand, Deputy Swindell argued that the arrest of Bailey was supported by Santana. However, the court of appeals noted that the difference was that, in Santana, the police initiated the arrest when Santana was standing in a public place (the threshold of the door), but in Bailey’s case, Deputy Swindell did not initiate the arrest until Bailey had fully entered his residence. Of course, this does assume that Bailey’s version of the facts are correct, but at this stage of the litigation, the court is required to credit the plaintiff’s version of events.
The court of appeals also examined Payton v. New York.[v] Payton was a consolidated case that involved two separate incidents with the same issue. In the first case, the police had developed probable cause to believe that Theodore Payton had committed a murder. They had not obtained a warrant. Officers knocked on Payton’s door and when he did not answer, they forced entry. They determined that he was not home but they also collected evidence that was used against him in court. In the second case, officers had probable cause to believe the Obie Riddick had committed robberies. They did not have a warrant. They knocked on his door and his young son opened the door. Officers saw Riddick through the open door. They entered and arrested Riddick and also obtained evidence that was used against him at trial. Ultimately, the cases went to the Supreme Court under one consolidated case. The Supreme Court held
[A]bsent exigent circumstances”—and even assuming the existence of probable cause—the threshold of the home “may not reasonably be crossed without a warrant. Id. at 590.[vi]
The court of appeals also discussed the Eleventh Circuit precedent, McClish v. Nugent.[vii] In McClish, an officer was standing on a porch, and he reached into McClish’s residence and pulled him out the door and arrested him. McClish stated that he was behind the threshold of the door completely in his residence. While this was McClish’s version of events, the court was required to credit his version at this stage of the litigation. The court held that the officer violated the Fourth Amendment by entering McClish’s residence to arrest him without a warrant, consent or exigent circumstance.
The court also discussed the Eleventh Circuit precedent, Moore v. Pederson.[viii] In Pederson, an officer was talking to Moore, who was standing inside the doorway of his apartment. The officer was standing outside the apartment at the doorway. The officer told Moore to turn around and put his hands behind his back, and he complied. The officer handcuffed and arrested Moore. The court held that
McClish clearly established that an officer may not execute a warrantless arrest without probable cause and either consent or exigent circumstances, even if the arrestee is standing in the doorway of his home when the officers conduct the arrest.[ix]
The court of appeals, in the case at hand, then stated
The bottom line, post-Payton: Unless a warrant is obtained or an exigency exists, “any physical invasion of the structure of the home, by even a fraction of an inch, [is] too much.” Kyllo v. United States, 533 U.S. 27, 37 (2001) (quotation marks and citation omitted).[x]
The court of appeals then applied the precedent above to the facts of Bailey’s case. The court noted that, in Santana, the arrest was set in motion while Santana was in a public place. Bailey’s arrest, in contrast, was not set in motion until after he fully entered his residence. The court of appeals stated
Bailey’s arrest, by contrast, wasn’t initiated in public, and therefore can’t qualify as a “true hot pursuit.” Id. at 42 (quotation marks omitted). Swindell gave no indication that he intended to arrest Bailey before he threatened to tase him and simultaneously tackled him from behind. Taken in the light most favorable to Bailey, the facts demonstrate that the threat and tackle occurred only after Bailey had retreated entirely into the house, so “hot pursuit” provides no justification for the warrantless entry here.[xi]
The court further distinguished Santana from Bailey’s case noting that Santana also involved the exigent circumstance of “destruction of evidence” because Santana fled into her residence with evidence in her hand. A delay in entry could have resulted in the destruction of that evidence. In Bailey’s case, there was no such threat of destruction of evidence.
Thus, since there was no hot pursuit and no exigency, the court held that the deputy violated the Fourth Amendment when he “crossed the threshold to effectuate a warrantless, in-home arrest. As such, the plaintiff met the first element he must establish in order to defeat the deputy’s qualified immunity.
The second element the plaintiff must establish is that the law was “clearly established” such that another reasonable officer in the same situation would have known his conduct violated the Fourth Amendment.
Regarding this issue, the court of appeals stated that McClish and Moore both clearly established that
[A] warrant (or exception) is always required for a home arrest “even if the arrestee is standing in the doorway of his home when the officers conduct the arrest.” 806 F.3d at 1050 n.14.[xii]
Thus, the plaintiff satisfied the second element required to defeat qualified immunity. As such, the deputy was not entitled to qualified immunity in this case.
[i] No. 18-13572 (11th Cir. Decided October 16, 2019)
[ii] Id. at 3-6
[iii] Id. at 7
[iv] 427 U.S. 38 (1976)
[v] 445 U.S. 573 (1980)
[vi] Id. at 590
[vii] 483 F. 3d 1231 (11th Cir. 2007)
[viii] 806 F.3d 1036 (11th Cir. 2015)
[ix] Id. at 1050, n.14 (emphasis added)
[x] Bailey at 12
[xi] Id. at 13
[xii] Id. at 15 (emphasis added)