USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_________

No. 95-1814

JOANNE JOYCE, INDIVIDUALLY

AND AS EXECUTRIX OF THE ESTATE OF
JAMES D. JOYCE,

Plaintiff, Appellant,

v.

TOWN OF TEWKSBURY, MASSACHUSETTS,

JOHN R. MACKEY, ALFRED DONOVAN

AND ROBERT BUDRYK,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. A. David Mazzone, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Campbell, Senior Circuit Judge,
____________________
Selya, Boudin, Stahl and Lynch, Circuit Judges.
______________

____________________
April 29, 1997
____________________

OPINION EN BANC

____________________

Robert LeRoux Hernandez

________________________

with

whom

Law Offices of Robert

_________________________

Hernandez were on brief for appellant.

_________
Larry W. Yackle
_________________

with

whom

John Reinstein
_______________

was

on

brief

American Civil Liberties Union of Massachusetts, amicus curiae.

Leonard H. Kesten
___________________
Fliegauf
________
appellees.

with

whom

Deidre Brennan Regan,

______________________

and Brody, Hardoon, Perkins & Kestin

___________________________________

were on

Kurt
_____
brief

Per Curiam.
__________

decision of

one

We are concerned on this

the district court granting

of the several claims

case, specifically, a

without

Review is

a search

claim that police

warrant

de novo and the

_______

most favorable to

that have been

violated

the

appeal with the

summary judgment on

litigated in this

entry into a

Fourth

facts are set forth

the party opposing

house

Amendment.

in the light

summary judgment.

Le
__

Blanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993),
_____
__________________

cert. denied, 511 U.S. 1018 (1994).

____________

Late on the evening

of August 6, 1989,

Donovan and Robert Budryk

James Joyce

the

("the Joyces")

arrived at the home of

Joanne and

in Tewksbury, seeking

Joyces' son, Lance Joyce.

with his parents, the

officers Alfred

Although Lance

police had received a call

to arrest

did not live

earlier in

the evening from Lance's ex-girlfriend informing them that he

was

there.

Lance's

Allegedly, an

arrest

on

charge of

domestic restraining order.

Lance answered

door,

outstanding warrant

violating

existed for

chapter 209A

Mass. Gen. Laws ch. 209A,

the officers' knock at

7.

the Joyces' side

opening the interior door but keeping the outer screen

door closed.

warrant for

Instead,

Officer Budryk told Lance that the officers had

his arrest,

Lance retorted

doorway, calling for his

Joanne Joyce, who

"ya

and asked

him to

right" and

mother.

had been asleep,

-2-2-

step outside.

withdrew from

The police

the

followed him.

then came downstairs

to

find her son and

room.

the police officers standing in

her dining

Her husband entered the room a few minutes later.

The

Joyces asked

the officers

what was

going on

and

whether they had a warrant; the officers explained that

were there to

existed,

arrest Lance and that a warrant for his arrest

although they

Joyce left the

room with

separately) to call

Donovan

and

they

did not

with them.

a third officer

the police

Budryk's

have it

(who had

department, which

understanding

that

James

arrived

confirmed

there

was

an

outstanding warrant for Lance's arrest.

While her husband was gone, a scuffle ensued between the

police officers and

she protested

Joanne Joyce.

Joanne

Joyce admits that

Lance's immediate arrest, although

she denies

pushing

the

police officers

grasped

Joanne

Joyce's

upper

away.

One of

arms and

the

moved

officers

her

aside,

allowing them to handcuff Lance and secure his arrest; Joanne

Joyce

claims that one of the officers threatened to kill her

unless she got out of the way.

Joanne Joyce was charged with

assault and battery but acquitted in a state court jury trial

in February 1990.

In April 1990, the Joyces brought suit alleging that the

officers,

U.S.C.

the chief of police

1983

and the Massachusetts Civil

Gen. Laws ch. 12,

upon

alleged

and the town

11I.

violations

had violated 42

Rights Act, Mass.

The section 1983 claims were based

of

the

Fourth

and

Fourteenth

-3-3-

Amendments

warrant

during

into the

the

officers'

Joyce home

and

force in arresting Lance Joyce.

the officers had

infliction

entry

claimed use

search

of excessive

The Joyces also claimed that

committed assault and

of emotional distress

without

battery, intentional

and malicious prosecution,

and that the town had negligently trained and

supervised the

officers in

violation of the Massachusetts

Tort Claims Act,

Mass. Gen. Laws ch. 258.

The defendants

of

illegal entry.

38 (1976), they

Fourth

of

motion

by

Lance Joyce

margin

evidence in the

the police had

because they

lawfully arresting.

on the issue

Citing United States v. Santana, 427 U.S.

_____________
_______

said that

Amendment

pursuit

moved for summary judgment

entered

whom they

the

were

The district court

order,

not violated

in the

in

process of

granted defendants'

explaining that

record to

Joyce home

the

"[t]here

support [that] the

is

no

entry was

in

violation of the Fourth Amendment."

A jury trial followed.

three

of

the remaining

The record indicates that

claims were

presented at

only

trial: a

section 1983

claim alleging

that the officers

had violated

the Fourth Amendment by using excessive force to arrest Lance

Joyce,

causing

claim; and

his mother

injury; a

a Massachusetts Civil

malicious prosecution

Rights Act claim

based on

the alleged threat by the officers to Joanne Joyce during the

-4-4-

altercation.

The jury returned a

verdict for the defendants

on all counts.

Joanne

Joyce then

appealed on

her own

executrix of

the estate of James Joyce.

for reversal

of the

entry claim but

arguing

that

summary judgment

also for a

the trial

because the jury was not

as one

of

new trial

the latter

behalf and

as

She asked not only

grant on

the illegal

on the other

claims

claims,

was tainted

allowed to consider unlawful

entry

of the circumstances incident to the excessive force,

malicious prosecution and MCRA claims.

A panel of this court

affirmed the district court's grant of summary judgment.

Joanne

Joyce

then

petitioned for

rehearing

en banc,
_______

supported

curiae.
______

warrant,

Santana
_______

by the

American Civil

Liberties Union

as amicus
______

Both urge that the officers' entry, without a search

violated

the

Fourth Amendment;

they

distinguish

on the ground that the suspect there was standing in

public space (just outside her house) when the police engaged

her,

while

Lance

Joyce

was

inside

throughout.

Joyce also argues that

violation of

restraining order,

his

parents'

home

the underlying offense,

is

not a

felony

under

Massachusetts law.

In considering

concluded

that

the

the petition

claim

against the

foreclosed by qualified immunity.

supplemental

memoranda.

for rehearing en banc, we

________

officers

Accordingly, we

might

be

requested

Having considered the memoranda, we

-5-5-

have decided to grant

opinion, and substitute

resolution of

rehearing en banc, withdraw

_______

the panel

this opinion as the en banc court's

________

the appeal.

Because

qualified immunity turns

primarily on an appraisal of existing case law, oral argument

has been deemed unnecessary.

When the police enter

the home of the person

they wish

to arrest, the arrest warrant suffices for entry if "there is

reason

to believe

the suspect

York, 445 U.S. 573, 603 (1980).

____

arrest warrant,

to

is within."

person's

451

police must generally have

U.S. 204,

house

may be

212-13

lawfully

v. New
___

But even when armed with an

enter lawfully a third person's home.

States,
______

Payton
______

(1981).

a search warrant

Steagald v. United
________
______

However,

entered

without a

third

search

warrant if exigent circumstances exist, Steagald, 451 U.S. at

________

213-14,

and

exigent

Santana, 427 U.S.

_______

circumstances include

at 42-43; Hegarty
_______

"hot

pursuit."

v. Somerset County,
_______________

53

F.3d

1367, 1374

(1st Cir.),

cert. denied,
____________

116 S.

Ct. 675

(1995).

Here, the

defendants claim that Santana justified their

_______

entrance into the Joyce home because they were in hot pursuit

of

Lance

Joyce.

police first

Joanne Joyce

the ACLU

engaged Santana when she was

standing directly

that

and

to uphold

on her threshold.

the entry

slope, allowing the

in this

respond that

outside her home,

_______

Ultimately, they argue

case creates

a slippery

police to enter without a search warrant

-6-6-

if the police merely suspect that the person sought is inside

the house.

The governing

not

yield

surprising

very

many

since

reasonableness:

case law under the

the

bright

line

ultimate

Fourth Amendment does

rules.

This

is

not

touchstone

is

one

of

the hot pursuit is only one of several well-

established examples of "exigent

circumstances" that make it

reasonable for the police to enter without obtaining a search

warrant.

See Minnesota v.

Olsen, 495 U.S.

91, 100 (1990);

___ _________

Hegarty, 43 F.3d at
_______

_____

1374.

Conversely, we are

by the slippery slope argument:

already in progress,

not impressed

entry where an arrest is not

or where the offense

is truly trivial,

would present quite a different case.

But

present

exception

even

case

within

is not

this

reasonableness

entirely

likely does not turn

framework,

straightforward.

Santana's
_______

on whether the individual is

standing immediately outside or immediately inside the

when

the police

And,

the fact

violation

here

"minor offense,"

first confront

that

as a

him and attempt

Massachusetts

classifies

misdemeanor does

see Welsh v.
___ _____

the

not

house

an arrest.

the

alleged

reduce it

Wisconsin, 466 U.S.

_________

to a

740, 753

(1984); we

agree with the panel that

violations

of protective

orders

"domestic violence and

are among

the more

grave

offenses affecting our society."

-7-7-

On

the other hand, we have no information as to whether

Lance

Joyce's conduct that gave rise to the protective order

involved actual

some basis

have

violence, although

the police may

for concern apart from the

ourselves suggested

may undermine

have had

protective order.1 We

that certain

"mitigating factors"

an exigency showing, including

any inadequacy

in the opportunity afforded for a peaceable surrender and the

fact that entry

1374.

occurs at

nighttime.

Hegarty,
_______

43 F.3d

at

So, there are arguments to be made on both sides.

The Supreme Court cases,

Santana at
_______

the other,

with Steagald at one

________

do not definitively

case.

Even a quick review of lower court

there

is no

settled answer as

doorway arrests.

to the

pole and

resolve our

own

cases reveals that

constitutionality of

See State v. Morse, 480 A.2d 183, 186 (N.H.

___ _____

1984)

_____

(collecting cases); 3 W. LaFave,

6.1(e) (3d ed. 1996) (same).

divided,

with some decisions

Search and Seizure

__________________

Circuit court precedent is also

helpful to the

police in this

case and others less so.2

____________________

1The police officers' testimony at

Lance

had

drinking

corroborated by
protective
twice by the
to

problem

trial indicated that

(information

Mrs. Joyce's testimony), had

custody ten or eleven

was

been placed in

times and arrested once or

Tewksbury police, had resisted

escape on prior

which

occasions, and that

arrest or tried

officer Donovan had

been involved in a few of the earlier incidents.

2Compare, e.g., United States

_____________ _____________
804-05 (1st Cir.

v. Rengifo, 858 F.2d 800,

_______

1988), cert. denied,

____________

490 U.S. 1023

(1989)

and United States v. Carrion, 809 F.2d 1120, 1123, 1128 & n.9
_________________
_______
(5th Cir. 1987) with
____

United States v. McCraw, 920

_____________
______

F.2d 224,

229-30 (4th Cir. 1990)

and United States v. Curzi,

___ _____________
_____

867 F.2d

-8-8-

Given

the

unsettled

hesitation in concluding

protected

by

officials

against section

acted

state

the law,

we

have

that the officers in this

qualified

reasonably.

of

Hunter
______

immunity

1983

v.

which

Bryant,
______

case are

protects

liability so

public

long as

502 U.S.

no

224,

they

228

(1991);

the

Anderson v. Creighton, 483 U.S. 635, 639 (1987).

________
_________

Supreme Court

has

said,

qualified immunity

ample protection to all but the plainly

who knowingly violate the

335, 341

(1986).

law."

The aim

otherwise be deterred

"provides

incompetent or those

Malley v. Briggs,
______
______

is

As

to protect

475 U.S.

those who

from official duties for fear

might

that an

innocent mistake would create personal liability.

The

critical point

here is

that officers

Donovan and

Budryk are "entitled to qualified immunity [so long as] their

decision was reasonable, even if mistaken."

________________

at

229 (emphasis added); see

___

1, 3 (1st

cir. 1996).

Thus,

Hunter, 502 U.S.

______

Veilleux v. Perschau, 101 F.3d

________
________

the officers

are not

liable

unless

in the

circumstances of

this case it

is reasonably

well-established, and should therefore have been clear to the

officers,

unlawful.

that

the

Because

entry

it is

without

search

not even clear

warrant

that there

was

was a

violation--a point that we do not decide--there certainly was

no

violation so patent as to strip the officers of qualified

immunity.

____________________

36, 40 (1st Cir. 1989).

-9-9-

The

Joyces

also

sued

the town

under

section

1983,

alleging that its failure to properly train and supervise the

officers

resulted

in

their

unlawful entry

Municipal liability under section

St. Louis
__________

v.

Prapotnik,
_________

of Independence, 445
_______________

is

the

actions

of

112,

municipality to be

lower-level

home.

128

(1988),

and

qualified immunity, Owen v. City

____
____

U.S. 622, 650 (1980).

not impossible for a

her

1983 is not vicarious, see

___

485 U.S.

municipalities do not enjoy

of

officers

who

Consequently, it

held liable for

are

themselves

entitled to

qualified immunity.

Walker v.
______

Waltham Housing
_______________

Auth., 44 F.3d 1042, 1047 (1st Cir. 1995).

_____

However,

our

rationale

here

for

granting

qualified

immunity to the officers--that the unsettled state of the law

made

it

reasonable to

constitutional--also

Tewksbury

believe

the

precludes

could not have

conduct in

municipal

this

case

liability.

been "deliberately indifferent" to

citizens' rights, Bowen v. City of Manchester, 966 F.2d

_____
___________________

18 (1st Cir.

their

conduct

whether the

the

1992), in

failing to teach

was unconstitutional.

Joyces have pointed to

officers' conduct

was endorsed

the officers

We

need not

13,

that

decide

evidence suggesting that

by a

municipal policy.

See St. Hilaire v. City of Laconia, 71 F.3d 20,

___ ___________
_______________

29 (1st Cir.

1995), cert. denied, 116 S. Ct. 2548 (1996).

____________

There is some cost in not deciding the

issue on the

Fourth Amendment

merits, even in the form of dictum.

But the en
__

-10-10-

banc
____

court is

agreed that

qualified immunity

applies, and

there

is less consensus

issue.

that

very

about the underlying constitutional

Indeed, some members

of the en banc court consider

________

Donovan and Budryk's entry

doubtful

Resolution

decisive,

legality

can properly

into the Joyce

under

await

the

a case

home was of

Fourth

where

Amendment.

the issue

is

as it could easily be on a suppression claim where

qualified immunity does not apply.

The

panel opinion

given above, the judgment

is

withdrawn and,
_________

for the

of the district court

on grounds of qualified immunity.

Concurrence follows.
___________________

reasons

is affirmed
________

-11-

-11-

TORRUELLA,
TORRUELLA,

damages

suit

appropriate,

Chief Judge
Chief Judge
___________

on

qualified

because

(concurring).
(concurring).

immunity

the parties

Resolving this

grounds

exercised the

is

entirely

opportunity to

brief this issue, and because the issue of qualified immunity can

be "resolved

States
______

v.

with

certitude on

La Guardia, 902
___________

F.2d

the existing

1010,

1013

record."

(1st Cir.

United
______

1990)

(appellate

court has

discretion,

"reach virgin issues"); see also

_________

v. Harwood,
_______

69 F.3d 622, 627

in the

exceptional case,

Nat'l Ass'n of Social Workers

______________________________

(1st Cir. 1995).

One would think

that a Fourth Amendment right cannot possibly be deemed

established"

from the

officers when

point

a total of

to

of view

of

seven judges,

"clearly

the defendant

including the

police

district

court, the appellate panel, and finally the en banc First Circuit

court,

are themselves in disagreement as to the precise scope of

that right.

I write

that my

dissenting

Steagald v.
________

have

separately, however, only because

I believe

brothers,

show

United States, 451

_____________

in

their

efforts

U.S. 204 (1981)

to

how

is controlling,

lost sight of the touchstone of Fourth Amendment law, which

is reasonableness.

people

to

be

See U.S. Const. Amend. IV ("The right

___

secure

in

their

persons,

of the

houses, papers,

and

effects, against unreasonable searches and seizures, shall not be

____________

violated . . . .") (emphasis added).

intuitions regarding

the sanctity

the determination of

what kinds

reasonable.

We

follow

the

Our strong and

of the home

obviously inform

of searches are,

Supreme

-12-12-

Court's

deep-seated

and are

lead

in

not,

these

difficult determinations, but where the unique facts of a case do

not fall squarely under any one Supreme Court precedent, as here,

we cannot help but consider the reasonableness of

the particular

search at issue.

We

follow

know from Santana

_______

fleeing

suspect

from

that it

the

residence into that residence, without a

purpose of effectuating an arrest.

suspect may not defeat an arrest

a public place, and

Watson, 423 U.S. 411

may be

threshold

reasonable to

of

private

search warrant, for the

Santana, 427 U.S. at 43 ("[A]

_______

which has been set in motion in

is therefore proper under [United States v.

______________

(1976)], by the expedient of escaping

to a

______

private

place.").

We

also

certainly

not
___

reasonable

residence

without a search

circumstances,

warrant is

under

in

the

inside.

either

know

to

from

simply

enter

warrant, in

belief that

One may

Santana
_______

Steagald
________

third

the absence

the

seek to

that

subject

or Steagald
________

--

but

party's

an arrest

present case

either way,

this

requires that we draw some conclusions regarding their scope.

drawing

pursuit"

the

outlines of

exception,

the

"exigent

find

myself

circumstances" or

naturally

is

of exigent

of

subsume the

it

In

"hot

turning

to

reasonableness.

The

reasonable for

precise

police

question,

officers, who

then,

are

is

whether

acting on

an

it

is

arrest

warrant arising

are standing a

subject of that

from the commission

few feet

of a jailable

away from, and

offense, who

face-to-face with,

arrest warrant (separated only by

the

a transparent

-13-13-

outer

screen door), who have

informed the same

must

step outside because he is under

that

the arrestee

refuses

subject that he

arrest, and who then find

to cooperate

and retreats

into the

residence, to follow

that arrestee

effectuate the arrest.

the residence

into the house

(And add to this the

in order

to

fact that although

belonged technically to a third party, a suspect's

parents' residence is often looked upon

as approximating his own

residence.)

these

Because

officers' entry and

case

falls

Santana.
_______

to

follow

under

believe,

on

arrest was reasonable, I

the

"hot

Let us not lose sight

precedents

that

pursuit"

facts,

that

the

conclude that this

rationale

discussed

in

of reasonableness in our efforts

are,

on

occasion,

not

clearly

determinative.

This

said, it

may be

that this

particular damages

suit, with its spotty record, is not the best context in which to

define those "exigent circumstance" parameters on

the merits.

am confident, moreover, that

to qualified

the police

an

After all,

this is not a
___

entered an unrelated third-party's home

arrestee

clearly

may

immunity.

these defendants are fully entitled

without any

process at

all

violate Steagald -- although some

________

question

whether the

process

-14-14-

in search of

action would

members of this court

that was

enough to satisfy the Fourth Amendment.

Concurrence follows.
___________________

-- such

case in which

followed

here was

LYNCH,
LYNCH,

sympathetic

Circuit Judge (concurring).

Circuit Judge (concurring).
______________

to the

very

strong arguments

violated the Fourth Amendment,

the judges

there

this

While

that the

I am

police

I join the per curiam.

of this court so strongly

That

disagree about whether

was a Fourth Amendment violation means that the law in

area is

officers'

not

actions

so clearly

established

as to

objectively unreasonable.

make

Anderson
________

the

v.

Creighton,
_________

483

Laconia, 71 F.3d
_______

U.S.

635

20 (1995).

(1987); St. Hilaire

____________

The officers

v.

City of
_______

are entitled

immunity, given the state of the law in 1989.

Dissent follows.
_______________

to

-15-15-

SELYA,
SELYA,

Judge, joins
Judge, joins
_____

Circuit Judge,
Circuit Judge,
_____________

(dissenting).
(dissenting).

with
with

whom
whom

Though the

STAHL,
STAHL,

Circuit
Circuit
_______

Fourth Amendment has

fallen on hard times, a woman's home remains her castle.

en banc court, seeking cover under the doctrine of

immunity (a doctrine

briefed

nor argued

which, as I understand

to the

Although

I applaud the

cannot in good

court; that

on the

withdrawal of

conscience join

opinion admittedly

demanded

by

clearly established

adhering

to

it

and, thus,

qualified

it, was neither

panel), effectively

unconstitutional encroachment

The

condones an

sanctity of

the home.

the panel

opinion, I

the opinion of

edges closer to

law,

perpetuates

but

the en

banc

the holding

stops short

of

a constitutionally

intolerable result.

As

the

Respectfully and regretfully, I dissent.

en

doctrine of qualified

banc

not

shield

faithfully

immunity protects

actions are reasonable, if

does

court

mistaken.

violations

relates,

state actors

the

whose

But qualified immunity

of

clearly

established

constitutional principles merely because the specific factual

situation in which a violation arises has novel features.

the

Supreme Court

recently noted

"general statements

of

giving

fair

and

of the law are

clear

in the

immunity context,

not inherently incapable

warning,

constitutional rule already identified in the

may apply

with obvious clarity

question, even

though the

As

to the

very action

general

decisional law

specific conduct

in

in question has

not

-16-16-

previously been held unlawful."

S. Ct.

1219, 1227

(1997) (citation, brackets,

quotation marks omitted).

In the

nothing

in the

United States v. Lanier, 117

_____________
______

absence

instant

and internal

This is exactly such a case.

of

exigent

circumstances

record suggests

any exigency,

and

let

alone demonstrates exigency to an extent that might carry the

day on summary

warrantless,

suspect's

judgment

non-consensual

home in order

York, 445 U.S. 573,

____

procure

home

the

entry

by

to arrest him.

576 (1980).

the

police

See
___

Of course,

into

Payton v. New
______
___

once the police

a valid arrest warrant, they may enter the suspect's

for the limited purpose

id. at 603.
___

person's
________

Fourth Amendment prohibits

of effecting the

arrest.

But even then, the police may not enter a

_

home
____

without

contradistinction

circumstances.

See
___

to

consent,

an

arrest

search

warrant),

third
_____

warrant

or

See
___

(in

exigent

Steagald v. United States, 451 U.S. 204,

________
_____________

205-06, 212-15 (1981).

In

established

plaintiff,

defendant

this case

rule

laid

down by

the

Steagald
________

the clearly

Court.

Joanne Joyce, was not herself a suspect.

officers entered

without a search warrant,

circumstances.

warrant for

the police transgressed

To

her

home

without her

and in the absence of

be sure,

the defendants

the plaintiff's son,

Lance Joyce,

The

Yet the

consent,

any exigent

had an

arrest

but that

is

scantconsolation becauseLance didnot livein hismother's home.

-17-17-

In

from

this

heavily

stitching together a qualified immunity defense

poor-quality

cloth,

the en

indeed, almost exclusively

Santana, 427 U.S. 38 (1976).

_______

as misplaced.

banc

court

relies

on United States v.
______________

The court's reliance strikes me

Santana is an "exigent circumstances" case; it

_______

stands only for the proposition that when the police confront

a suspect whom they have probable cause to arrest in a public

__ _ ______

place, and the suspect subsequently flees into

_____

they may

pursue and

arrest her.

See id.
___ ___

her own home,

at 42-43.

That

proposition has no application here for

two reasons (each of

which is independently sufficient to defenestrate the en banc

court's reasoning).

First,

under Steagald,
________

warrantless non-consensual

searches of a third person's home are only excused by exigent

circumstances.

451 U.S. at 205-06.

circumstances:

the hot

pursuit of a fleeing suspect

public place into a private one.

case,

for

fact

by contrast, there is

pursuit

Santana involved exigent

_______

hot, cold,

427 U.S. at 42-43.

simply no evidence

or lukewarm.

from a

In this

of any need

Certainly, the mere

that Lance Joyce, prompted by police action, moved from

one part of his

mother's home to another did

cognizable exigency.

See United States

___ _____________

not create any

v. Curzi, 867
_____

F.2d

36, 40-43,

officers

43 n.6

cannot use

(1st Cir.

exigent

1989) (explaining

circumstances that

that police

they

have

created to justify a warrantless search).

-18-18-

Second,

and

equally

important,

the

record

is

pellucid

that Lance

was

not in

public place

when

the

officers first confronted him; although he opened an interior

door,

he remained

exterior

weather

entirely shut.

Santana
_______

door

between

himself

house and

and

the

kept an

officers

While the en banc court blithely asserts that

does not

police

completely within the

turn on

whether the

individual

whom the

desire to apprehend is inside or outside a house when

the first contact occurs, this distinction makes every bit of

difference.3

third

parties'

The rule prohibiting

homes

followed

and

Santana,
_______

Steagald,
________

Payton,
______

a case

emerged

interpreted

in

Steagald,
________

Santana.
_______

451 U.S.

in which

warrantless invasions of

at

214

the Supreme

Rather

case

that

than extending

n.7, 222,

reinforces

Court concluded

that

"physical entry of the

home is the chief evil

against which

the wording of the

Fourth Amendment is directed."

at

omitted).

585

Amendment

house."

(citation

has drawn

Id. at 590.
___

Consequently,

firm line

at

445 U.S.

"the

the entrance

Fourth

to

the

The Constitution does not equivocate on

____________________

3.

Recent Supreme Court case law confirms that police action

directed at individuals
subject

to

intense

constitutional
established in
(1995), pertains

within the confines of a dwelling is

constitutional

requirement

to

scrutiny.

"knock

Wilson v. Arkansas, 115 S.

______
________

Ct. 1914, 1915-16

The elevation of this

constitutional status can only be understood

protection granted

private home's confines

scene.

announce,"

only when the subject of the arrest warrant

is within a dwelling.

special

and

The

those persons

requirement to
in terms of the

who are

when the police first arrive

within a
on the

-19-19-

this point.

1388 (7th

two

See
___

United States v. Berkowitz, 927

_____________
_________

Cir. 1991) ("Payton did

______

feet into

the

home; it

not draw the

drew the

line

F.2d 1376,

line one or

at the

home's

entrance."); State v. Morse, 480 A.2d 183, 186 (N.H. 1984); 3

_____
_____

W. LaFave, Search and Seizure

___________________

6.1(e)

(3d ed. 1996).

Nor

should we.

In

third

sum, I believe that

party's

warrant, or

home

in

the officers' entry into a

the absence

of

exigent circumstances plainly

consent,

violated Steagald
________

and thus violated the homeowner's clearly established

Amendment rights.

a search

Fourth

See United States v. McCraw, 920 F.2d 224,

___ _____________
______

228-29 (4th Cir. 1990) (rejecting use of Santana when door to

_______

dwelling was only partially opened from within).

By

on

denies

this point,

the

en

banc

court

not

only

hedging

the

plaintiff her day in court but also invites the proliferation

of such incidents.

Since we will be seen as sanctioning that

which we are unwilling to condemn, I respectfully dissent.

-20-20-