On November 13, 2020, the Fourth Circuit Court of Appeals decided the United States v. Brinkley[i], which is instructive regarding the Fourth Amendment requirements to enter a private residence under Payton to execute an arrest warrant.  The facts of Brinkley are as follows:

In February 2017, a federal-state task force in Charlotte, North Carolina, sought to execute outstanding arrest warrants. J.A. 113. Brinkley, then subject to an arrest warrant for unlawfully possessing a firearm as a convicted felon, was among the targets. J.A. 111. A.

A. Bureau of Alcohol, Tobacco, and Firearms (ATF) Special Agent Jason Murphy oversaw the operation. J.A. 110-11. An ATF analyst first provided Agent Murphy with at least two possible addresses. J.A. 125. Because a water bill for one of these addresses was in Brinkley’s name, Agent Murphy initially believed that address was Brinkley’s most likely residence. J.A. 125-26. One of the other addresses that the analyst provided was an apartment on Stoney Trace Drive in Mint Hill, North Carolina, J.A. 64, 125-26; no utility bill in Brinkley’s name was associated with this address, J.A. 125.

Charlotte-Mecklenburg Police Department Detective Robert Stark, a member of Agent Murphy’s task force, also tried to locate Brinkley. J.A. 63-64, 110-11, 125. On February 2, Detective Stark searched for Brinkley on CJLEADS, [*3]  a North Carolina statewide law enforcement database.1 J.A. 64. Detective Stark found multiple addresses in the database linked to Brinkley. J.A. 64-66, 154. Two CJLEADS entries — one for a traffic citation, added January 2, J.A. 155-56, and another from the state department of corrections, added “at some point in January” — were associated with the Stoney Trace apartment, J.A. 64-65, 68.

But other CJLEADS entries that Detective Stark found placed Brinkley at numerous other addresses. J.A. 74, 87. One entry, added five days before the January 2 traffic citation, provided an address on Planters View Drive. J.A. 88, 154. Another entry, added a month before that, gave an address on Stone Post Road in Charlotte. J.A. 88, 154. Older entries, including at least five more from the same year, and others dating further back, listed the Planters View Drive address and still other addresses. J.A. 74, 154. Detective Stark did not look into the Planters View Drive address or any of these other addresses. Rather, “based on the length of time that those addresses had been associated with” Brinkley, Detective Stark believed that they “were probably family addresses” where Brinkley did not reside. J.A. [*4]  89. But the detective intended to check these other addresses if Brinkley was not found at the Stoney Trace apartment. J.A. 89.

Detective Stark then found Brinkley’s public Facebook page. J.A. 72-73. Posts and photos there led him to believe that Brinkley was dating one Brittany Chisholm. J.A. 73. Detective Stark searched for Chisholm on CJLEADS and found that she was also associated with the Stoney Trace apartment. J.A. 73-74. Based on this information, Detective Stark concluded that Brinkley lived there with Chisholm. J.A. 75.

Detective Stark reported his conclusion to Agent Murphy, who came to agree that Brinkley probably resided in the Stoney Trace apartment. J.A. 111-12, 126. Neither officer was certain that they had uncovered Brinkley’s address. J.A. 112, 126. Rather, in Agent Murphy’s experience, it was “common for someone like Mr. Brinkley . . . to have more than one place where they will stay the night.” J.A. 126.

The next day, Agent Murphy, Detective Stark, and three other police officers went to the Stoney Trace apartment to conduct what both Agent Murphy and Detective Stark characterized as a “knock-and-talk” to “start [their] search for Mr. Brinkley.” J.A. 75-76, 113, 126-27. [*5]  The officers intended to “interview the occupants to find out if [he] was indeed there,” and to arrest him if he was. J.A. 75, 113. Agent Murphy acknowledged that he “had no idea if [Brinkley] was going to be there that morning,” but thought the Stoney Trace apartment was the “most likely address” to “find Mr. Brinkley or evidence of his whereabouts.” J.A. 134.

B. The five officers arrived at the Stoney Trace apartment around 8:30 AM on Friday, February 3, all wearing clothing identifying themselves as police officers. J.A. 75-77, 91. In Agent Murphy’s words, they intended “to basically secure the area and sit up on the house and wait to see if Mr. Brinkley left.” J.A. 134. Detective Stark knocked on the front door, and the officers heard movement inside for about a minute. J.A. 77. A woman asked who was there, and Detective Stark answered that it was the police. J.A. 77. The officers heard movement for another minute until Chisholm, wearing pajamas, slowly opened the door. J.A. 77, 114.

Detective Stark informed Chisholm that the officers were looking for Brinkley and asked to enter the apartment. J.A. 96. Chisholm denied that Brinkley was there. J.A. 78, 96, 115, 128. According to Detective [*6]  Stark, Chisholm grew “very nervous”; her “body tensed” and her “breathing quickened,” and she looked back over her shoulder into the apartment. J.A. 78. The officers saw another woman they did not recognize, but later identified as Jermica Prigon, wearing pajamas and folding clothes in the living room. J.A. 79, 97, 116. The officers heard movement coming from a room in the back of the apartment, and both Chisholm and Prigon repeatedly looked back toward that area. J.A. 78-80, 115-16.

Detective Stark again asked if Brinkley was present and if the officers could enter to look for him. J.A. 79, 115. He explained that the police “had information that [Brinkley] was staying at this residence” and “asked for [Chisholm’s] permission . . . to come through and just do a walk through to make sure that he was indeed not at the residence.” J.A. 115. Chisholm, still seeming nervous, answered that she did not want the police officers to enter her apartment and asked if they had a search warrant authorizing them to do so. J.A. 79, 115.

Detective Stark estimated the entire exchange with Chisholm lasted “a little more than a minute”; Agent Murphy thought it lasted more than three. J.A. 96-97, 129. Both [*7]  testified that based on Chisholm’s demeanor and behavior, Prigon’s presence, the movement they heard in the back of the apartment, and the morning hour (8:30 AM), they believed Brinkley was inside. J.A. 81, 117, 133. Agent Murphy testified that the sounds and the women’s reactions led him to believe “100 percent that Mr. Brinkley was hiding in the apartment.” J.A. 134.

At this point, the officers decided not to follow the original plan to secure the area and wait to see if Brinkley left the home. J.A. 134. Instead, Agent Murphy told Chisholm that he believed she was hiding Brinkley and that the officers were going to enter the apartment to serve an arrest warrant on him. J.A. 81, 117. Then the five uniformed and armed officers entered the apartment. J.A. 99. Detective Stark recalled that he probably entered with his gun drawn; Agent Murphy believed that he did not draw his weapon at this time. J.A. 81, 117. The officers found Brinkley in a bedroom. J.A. 82, 99, 118. They arrested and handcuffed him. J.A. 82, 99, 118.[ii]

Brinkley was charged with various weapons and drug offenses under federal law.  He filed a motion to suppress and argued that the police unlawfully entered the apartment so all evidence obtained should be suppressed.  The district court denied the motion, and he pled guilty with the right to appeal the denial of the motion to suppress.

Brinkley subsequently appealed the denial of the motion to suppress to the Fourth Circuit Court of Appeals.

The issue on appeal was whether the police lawfully entered the Stoney Trace apartment under the arrest warrant for Brinkley.

The court of appeals first examined the legal principles relevant to the issue in Brinkley’s case.  The court noted there are two situations officers may encounter when attempting to serve arrest warrants. The first situation occurs when an officer attempts to execute the arrest warrant at the suspect’s residenceThe second situation occurs when an officer attempts to execute an arrest warrant for a suspect who is located at a third party’s residenceThe court then discussed the legal principles related to each situation.

Arrest Warrant Execution at the Suspect’s Residence

When an officer attempts to execute an arrest warrant at the suspect’s residence, the Supreme Court case, Payton v. New York[iii] controls the officer’s conduct.  Regarding Payton, the Fourth Circuit stated

When police armed with an arrest warrant seek to enter a suspect’s own home, Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980), controls. There the Court concluded that “for Fourth Amendment purposes, 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.” Id. at 603. The Payton Court reasoned that an arrest warrant “will suffice to interpose the magistrate’s determination of probable cause between the zealous officer and the citizen,” so it is not constitutionally necessary for officers to seek additional judicial authorization before entering a suspect’s own home to arrest him. Id. at 602-03.[iv]

The court discussed the “reason to believe” that “the suspect is within” language in Payton.  After a review of other circuit’s precedent and Supreme Court precedent, the Fourth Circuit stated that it will interpret the “reason to believe” standard to equate to the “probable cause” standard.  The Fourth Circuit stated

It seems to us that interpreting reasonable belief to require probable cause hews most closely to Supreme Court precedent and most faithfully implements the special protections that the Fourth Amendment affords the home. For these reasons, we join those courts “that have held that reasonable belief in the Payton context ’embodies the same standard of reasonableness inherent in probable cause.'” Id. (quoting United States v. Gorman, 314 F.3d 1105, 1111 (9th Cir. 2002)).[v]

Thus, the court of appeals stated that that there are essentially two prongs that must be satisfied when executing an arrest warrant under Payton.  The first prong requires that the officer have probable cause to believe the residence is in fact the suspect’s residence.  The second prong requires the officer to have probable cause that the suspect is inside the residence before the police enter the residence under the authority of the arrest warrant.

Arrest Warrant Execution at a Third Party’s Residence

When an officer attempts to execute an arrest warrant for a suspect who is at a third party’s residence, the Supreme Court case, Steagald v. United States[vi] controls the officer’s conduct.  Regarding Steagald, the Fourth Circuit stated

[I]n Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68 L. Ed. 2d 38, the Court decided that an arrest warrant alone did not authorize police to enter a third party’s home. The Court explained that in this situation, unlike in Payton, “two distinct interests” protected by the Fourth Amendment are at stake: not only “[the suspect’s] interest in being free from an unreasonable seizure,” but also “[the third party’s] interest in being free from an unreasonable search.” Id. at 216. While an arrest warrant may adequately protect the former interest, it does “absolutely nothing to protect [the third party’s] privacy interest in being free from an unreasonable invasion and search of [her] home.Id. at 213. Consequently, the Steagald Court held that, absent exigent circumstances or consent, the Fourth Amendment requires police to obtain a search warrant before trying to apprehend the subject of an arrest warrant in a third party’s home. Id. at 216.[vii]

Thus, to enter the residence of a third party to execute an arrest warrant of someone who does not reside at that residence, an officer must have probable cause the suspect is at the third party’s residence and must obtain a search warrant to enter that residence (if consent is not given).

Did Payton or Steagald Apply in Brinkley’s Case?

In Brinkley’s case, the Fourth Circuit answered this question and stated

Because the officers in this case assertedly believed that Brinkley resided in the Stoney Trace apartment — and entered it pursuant solely to the authority of the arrest warrant — Payton‘s framework applies.[viii]

The court again explained the legal requirements of that standard and stated that, under Payton, to enter the Stoney Trace apartment

[T]he police needed to have probable cause to believe that [1] Brinkley resided there and [2] would be present when they entered.[ix]

Prong One:  Was there probable cause to believe that Brinkley lived at the Stoney Trace apartment?

The court of appeals noted that the police relied on two entries in a computer database (CJLEADS) and Brinkley’s public Facebook page to establish that Stoney Trace was Brinkley’s residence.  The Fourth Circuit held that this was not sufficient to establish probable cause that Brinkley resided at that residence.  The court stated

Pursuant to Payton and Steagald, the officers needed to establish reason to believe not just that Brinkley was staying in the Stoney Trace apartment but that he resided there. If Brinkley was merely staying as a guest in someone else’s home, Steagald would require the officers to obtain a search warrant before they could enter it.[x]

The court of appeals noted that there was other evidence that Brinkley may reside at other addresses.  For example, computer database records showed a possible different residence as close in time as five days to the information that pointed to Stoney Trace.  The court went on to state that other verification would have been required to establish probable cause that Brinkley resided at Stoney Trace, even noting the fact that the agent in charge of the search for Brinkley stated that their original plan was to conduct a knock-and-talk and then do surveillance of the apartment.

Therefore, the court held that the police did not establish probable cause to believe that Brinkley resided at the Stoney Trace apartment.

Prong Two:  Was there probable cause to believe that Brinkley was present at the Stoney Trace apartment when they entered?

Regarding the second prong of Payton, the court stated

In determining reasonable belief as to a suspect’s presence, courts assess the signs of presence known to officers before they enter a home. See Graham, 553 F.3d at 14. Though we now know that the officers’ belief that Brinkley would be present proved to be correct, the Fourth Amendment demands that we “prevent hindsight from coloring the evaluation of the reasonableness of a search or seizure.” Martinez-Fuerte, 428 U.S. at 565.[xi]

The court noted six factors upon which the government relied upon to attempt to establish the “reasonable belief” (probable cause) that Brinkley was present.  The factors were as follows:

(1) [T]he officers’ purportedly reasonable belief that he resided there; (2) the morning hour (8:30 AM); (3) Chisholm’s delay in opening the door; (4) Chisholm’s nervousness; (5) the sounds of movement in the apartment; and (6) Chisholm and Prigon’s looks toward the back of the apartment.[xii]

The court then discussed each factor.  Regarding the first factor, the court noted that the officers actually failed to establish a “reasonable belief” (probable cause) that Brinkley resided at Stoney Trace.  As such, that factor did not work in the government’s favor.  Regarding the early hour and the delay in opening the door, the court stated that it is not unusual for a person who answers the door at 8:30 am in pajamas to have an approximately two minute delay prior to answering the door.  Regarding the fourth factor, Chisholm’s nervousness, the court stated that it is not unusual for a person to be nervous when five police officers are at the person’s door asking questions and requesting to enter the person’s apartment.  As to the fifth factor, the court stated that the sound of movement could have been from a child, parent, or anyone and there was no specific information that the noise was from Brinkley.  At most, it meant someone may be present.  Lastly, regarding Chisholm and Prigon’s looking to the back of the apartment toward the noise, the court stated this was a “typical reaction” to “any source of noises.”

Further, the court, in its analysis, emphasized that

When police have limited reason to believe a suspect resides in a home, generic signs of life inside and understandably nervous reactions from residents, without more, do not amount to probable cause that the suspect is present within.[xiii]

Therefore, the court of appeals held that the police did not establish probable cause that Brinkley was present in the apartment and thus failed to establish the second prong of Payton.

In conclusion, the Fourth Circuit stated

We hold that reasonable belief amounts to probable cause and that the police, in this case, lacked reason to believe Brinkley resided in the Stoney Trace apartment and would be present when they entered.[xiv]

Therefore, the court reversed the district court’s denial of the motion to suppress.



[i] No. 18-4455 (4th Cir. Decided November 13, 2020)

[ii] Id. at 2-8

[iii] 445 U.S. 573 (1980)

[iv] Brinkley at 10-11 (emphasis added)

[v] Id. at 15 (emphasis added)

[vi] 451 U.S. 204 (1981)

[vii] Brinkley at 11 (emphasis added)

[viii] Id. at 11

[ix] Id. at 15 (emphasis added)

[x] Id. at 18 (emphasis added)

[xi] Id. at 22-23 (emphasis added)

[xii] Id. at 23

[xiii] Id. at 29 (emphasis added)

[xiv] Id. at 30

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