717 F.2d 482 (9th Cir. 1983), 81-1451, United States v. Underwood

Docket Nº:81-1451.
Citation:717 F.2d 482
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Jack Leroy UNDERWOOD, Defendant-Appellee.
Case Date:September 30, 1983
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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717 F.2d 482 (9th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellant,


Jack Leroy UNDERWOOD, Defendant-Appellee.

No. 81-1451.

United States Court of Appeals, Ninth Circuit

September 30, 1983

Argued and Submitted June 15, 1983.

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Brian C. Leighton, Asst. U.S. Atty., Fresno, Cal., for plaintiff-appellant.

Edward P. Moffat, Asst. Federal Defender, Fresno, Cal., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of California.


BROWNING, Chief Judge.

A federal arrest warrant was issued for Underwood, an escaped federal prisoner. Acting on the basis of this warrant, state officers entered a house in which Underwood was staying, arrested him, and seized weapons in plain view. The district court granted defendant's motion to suppress the weapons on the ground that entry without a search warrant identifying the house in which Underwood was found violated the fourth amendment. We hold that reversal is required by Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), rejecting the contention that the rule stated in Payton is dictum we need not follow.


Underwood escaped from a federal correctional institution in Kentucky. A United States magistrate issued a warrant for his arrest. Because Underwood had resided in Delano, California, federal authorities informed the Delano police of his escape. A reliable informant told Delano police that Underwood could be found at a house police believed to be the residence of a man named Johnny Duckett. The informant said Duckett told him that Duckett and Underwood "got cranked up" the night before and Underwood was "crashed" at the Duckett residence. Acting under the authority of the federal arrest warrant, but without obtaining a search warrant, the police surrounded the house, announced their presence, and hearing no response, made a nonconsensual entry through a slightly open door. The officers found Underwood in the house, armed with a hand gun. While handcuffing Underwood, one of the officers noticed, in plain view, a partially opened black coffin-shaped box containing a shotgun and ammunition.

Underwood was indicted for possession of an unregistered firearm and possession of a firearm by a felon. He moved to suppress the weapons. The district court held that the arrest warrant was valid and the officers had probable cause to believe Underwood was in the house when they entered. Nevertheless, the court granted the motion to suppress on the ground that "the entry [of the house] not being authorized by a search warrant, was constitutionally impermissible." The government contends the rule announced in Payton requires reversal. 1 We agree.

In Payton, the Supreme Court explicitly rejected the argument that a separate search warrant based on probable cause to believe a suspect was in a particular dwelling was necessary to protect the interests of the person named in an arrest warrant. "Thus, 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." 445 U.S. at 603, 100 S.Ct. at 1388.


There are only two possible grounds for avoiding the application of the rule announced in Payton to this case.

The first is that the person named in the arrest warrant in Payton was in his

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own home, while in this case the person named in the arrest warrant, Underwood, was in the home of a third person. For the purpose of determining whether Underwood's rights were violated, nothing turns on this difference. A person has no greater right of privacy in another's home than in his own. If an arrest warrant and reason to believe the person named in the warrant is present are sufficient to protect that person's fourth amendment privacy rights in his own home, they necessarily suffice to protect his privacy rights in the home of another. United States v. Clifford, 664 F.2d 1090, 1093 (8th Cir.1981).

The right of a third party not named in the arrest warrant to the privacy of his home may not be invaded without a search warrant, Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). But this right is personal to the home owner and cannot be asserted vicariously by the person named in the arrest warrant. See Steagald v. United States, 451 U.S. at 218-19, 101 S.Ct. at 1650-51; Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 424-25, 58 L.Ed.2d 387 (1978). "[D]efendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated." United States v. Salvucci, 448 U.S. 83, 85, 100 S.Ct. 2547, 2549, 65 L.Ed.2d 619 (1980).


The second possible ground for avoiding the application to this case of the Supreme Court's positive statement in Payton that an arrest warrant plus reason to believe the suspect is present are sufficient to permit entry without a search warrant is that the statement was merely dictum that need not be followed by this court because the officers in Payton had neither a search warrant nor an arrest warrant. This restrictive interpretation of Payton has been rejected by every court of appeals 2 and every state court 3 that has considered the issue. We reject it as well.

The question before the Court in Payton was the constitutionality of New York statutes that authorized police to enter a private residence without a warrant to make a felony arrest. The State argued that only a search warrant based on probable cause to believe the suspect was in the home at the time could adequately protect the privacy interest at stake, and because it was manifestly impractical to obtain such a warrant, no warrant at all was constitutionally required. The Supreme Court rejected the State's argument on the ground that the impracticality of obtaining a search warrant did not require a holding that no warrant was required. While a search warrant would afford greater protection, the Court reasoned that an arrest warrant would afford sufficient protection to the person named in the warrant to satisfy the fourth amendment. 445 U.S. at 602-03, 100 S.Ct. at 1388. The Supreme Court held that arrests under the statute were invalid, not because no warrant was obtained, but "[b]ecause no arrest warrant was obtained ...." Id. at 603, 100 S.Ct. at 1388 (emphasis added). This is the holding of the case.

If there was any doubt as to this interpretation of Payton, it was laid to rest by Steagald v. United States, 451 U.S. at 214, n. 7, 101 S.Ct. at 1648, n. 7 and Michigan v.

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Summers, 452 U.S. 692, 704, 101 S.Ct. 2587, 2595, 69 L.Ed.2d 340 (1981). In both cases the Court treated this language in Payton as part of the Payton holding.

In Steagald, police officers with an arrest warrant entered a third party's home to effect the arrest of the person named in the arrest warrant. The suspect was not present, but the officers seized cocaine in plain view and used it to convict the homeowner. The Supreme Court held the homeowner was constitutionally entitled to the protection of a search warrant. 451 U.S. at 216, 101 S.Ct. at 1649. The Court reasserted the Payton rule that the fourth amendment rights of the person named in the arrest warrant were fully protected by an arrest warrant, and no search warrant was required: "In Payton, of course, we recognized that an arrest warrant alone was sufficient to authorize the entry into a person's home to effect his arrest." Id. at 214 n. 7, 101 S.Ct. at 1648 n. 7. The Court restated the reason for the rule: "Because an arrest warrant authorizes the police to deprive a person of his liberty, it necessarily also authorizes a limited invasion of that person's privacy interest when it is necessary to arrest him in his home." Id. The Court noted this reason is inapplicable to a third party whose home is entered to execute an arrest warrant naming another: "Such a warrant embodies no judicial determination whatsoever regarding the person whose home is to be searched. Because it does not authorize the police to deprive the third person of his liberty, it cannot embody any derivative authority to deprive this person of his interest in the privacy of his home." Id. Hence, deprivation of the homeowner's right to privacy must be based on an independent determination by a magistrate, evidenced by a search warrant, that the person named in the arrest warrant is probably in the home.

Steagald thus reaffirms as a rule of positive law the Payton principle that an arrest warrant alone is sufficient to protect the fourth amendment interests of the person named in the warrant when arrested in his home, restates the rationale for the rule, and incorporates it into the fabric of fourth amendment law. The Court continued this process in Michigan v. Summers.

The question in Michigan v. Summers was whether a warrant to search a home for contraband implicitly carries with it authority to detain the occupants while the search is conducted. The Court held that it did. 452 U.S. at 705, 101 S.Ct. at 2595. The Court rested its decision squarely upon an analogy to the Payton rule that an arrest warrant afforded sufficient protection to a suspect's privacy interest in the home entered to arrest him, which the Court referred to and treated as the holding of Payton. The Court reasoned that if, as Payton holds, a warrant authorizing an invasion of an individual's liberty interest implicitly carries limited authority to invade his privacy interest, then a warrant authorizing an invasion of...

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