Warrants & In-Home Arrests

Entering a home to arrest an occupant

In the past, officers could forcibly enter a residence to arrest an occupant whenever they had probable cause to arrest. Now, however, a forcible entry is permitted only if there were additional circumstances that justified the intrusion. As we will now explain, the circumstances that are required depend on whether officers enter the suspect’s home or the home of a third person, such as a friend or relative of the suspect.

Entering the suspect’s home

To enter the suspect’s home, officers must comply with the so-called Ramey-Payton rule,162 under which a forcible entry is permitted only if both of the following circumstances existed:

1. WARRANT ISSUED: A warrant for the suspect’s arrest must have been outstanding. Either a conventional or Ramey warrant will suffice.163

2. ARRESTEE’S HOME: Officers must have had “reason to believe” the suspect, (a) lived in the residence, and (b) was presently inside. Although most federal courts have ruled that the “reason to believe” standard is merely reasonable suspicion,164 the Ninth Circuit ruled it means probable cause.165 The California Supreme Court has not yet decided.166

Entering a third person’s home

If the suspect is inside the home of a third person, such as a friend or relative, the so-called Steagald rule applies, which means that officers may enter only if they have a search warrant supported by an affidavit that establishes probable cause to believe, (1) the suspect committed the crime under investigation, and (2) he is presently inside the residence and will be there when the warrant is executed.167 See page 11 for a sample Steagald warrant.

Other grounds for entering

There are essentially three situations in which officers without a warrant may enter a residence to arrest an occupant:

“Hot Pursuit”

Officers may enter if they are in “hot pursuit” of the suspect. In this context of executing arrest warrants, the term “hot pursuit” means a situation in which all of the following circumstances existed:

1. PROBABLE CAUSE TO ARREST: Officers must have had probable cause to arrest the suspect for a felony or misdemeanor.

2. ATTEMPT TO ARREST OUTSIDE: Officers must have attempted to make the arrest outside the residence.

3. SUSPECT FLEES INSIDE: The suspect must have tried to escape or otherwise prevent an immediate arrest by going inside the residence.168

“Fresh Pursuit”

Officers may also enter a residence without a warrant to arrest an occupant if they are in “fresh pursuit.” This essentially means they must have been actively attempting to locate the arrestee and, in doing so, were quickly responding to developing information as to his whereabouts. Although the courts have not established a checklist of requirements for fresh pursuits, the cases seem to indicate there are four:

1. SERIOUS FELONY: Officers must have had probable cause to arrest the suspect for a serious felony, usually a violent one.

2. DILIGENCE: Officers must have been diligent in attempting to apprehend the suspect.

3. SUSPECT INSIDE: Officers must have had probable cause to believe the suspect was inside the structure.

4. CIRCUMSTANTIAL EVIDENCE OF FLIGHT: Officers must have been aware of circumstances indicating the suspect was in active flight or that active f light was imminent.169

Consent

If officers obtained consent to enter from the suspect or other occupant, the legality of their entry will usually depend on whether they misled the consenting person as to their objective, so that an immediate arrest would have exceeded the scope of consent. For example, if officers said they merely wanted to enter (“Can we come in?”) or talk (“We’d like to talk to you.), a court might find that they exceeded the permissible scope of the consent if they immediately arrested him.170 But there should be no problem if officers intended to make the arrest only if, after speaking with the suspect, they believed that probable cause existed or continued to exist.171

Footnotes

162 See People v. Ramey (1976) 16 Cal.3d 263; Payton v. New York (1980) 445 U.S. 573.

163 See People v. Case (1980) 105 Cal. App.3d 826, 831 [“From a practical standpoint the use of the Ramey Warrant form was apparently to permit, prior to an arrest, judicial scrutiny of an officer’s belief that he had probable cause to make the arrest without involving the prosecutor’s discretion in determining whether to initiate criminal proceedings.” Quote edited]; People v. Bittaker (1980) 48 Cal.3d 1046, 1070; Godwin v. Superior Court (2001) 90 Cal.App.4th 215, 225 [“To comply with Ramey and Payton, prosecutors developed the use of a Ramey warrant form, to be presented to a magistrate in conjunction with an affidavit stating probable cause to arrest.”].

164 See U.S. v. Route (5th Cir. 1997) 104 F.3d 59, 62 [“All but one of the other circuits [the 9th] that have considered the question are in accord, relying upon the ‘reasonable belief’ standard as opposed to a probable cause standard. . . . [W]e adopt today the ‘reasonable belief’ standard of the Second, Third, Eighth, and Eleventh Circuits.” Citations omitted].

165 See Cuevas v. De Roco (9th Cir. 2008) 531 F.3d 726, 736; Motley v. Parks (9th Cir. en banc 2005) 432 F.3d 1072. NOTE: Because the United States Supreme Court used the words “reason to believe,” and because the Court is familiar with the term “probable cause,” it would seem that it meant something less than probable cause. See U.S. v. Magluta (11th Cir. 1995) 44 F.3d 1530, 1534 [“The strongest support for a lesser burden than probable cause remains the text of Payton, and what we must assume was a conscious effort on the part of the Supreme Court in choosing the verbal formulation of ‘reason to believe’ over that of ‘probable cause.’”]. 166 See People v. Jacobs (1987) 43 Cal.3d 472, 479, fn.4.

167 See Steagald v. United States (1981) 451 U.S. 204. NOTE: Because it can be difficult to establish probable cause for a Steagald warrant, the Supreme Court has noted that there are at least two options: (1) wait until the arrestee is inside his own residence, in which case only an arrest warrant is required; wait until the arrestee leaves the third party’s house or is otherwise in a public place, in which case neither an arrest warrant nor a Steagald warrant is required. See Steagald v. United States (1981) 451 U.S. 204, 221, fn.14 [“[I]n most situations the police may avoid altogether the need to obtain a search warrant simply by waiting for a suspect to leave the third party’s home before attempting to arrest the suspect.”].

168 See United States v. Santana (1976) 427 U.S. 38, 43 [“[A] suspect may not defeat an arrest which has been set in motion in a public place by the expedient of escaping to a private place.” Edited]; People v. Lloyd (1989) 216 Cal.App.3d 1425, 1430.

169 See People v. Manderscheid (2002) 99 Cal.App.4th 355, 361-63; People v. Amaya (1979) 93 Cal.App.3d 424, 428 [“Thus, officers need not secure a warrant to enter a dwelling in fresh pursuit of a fleeing suspect believed to have committed a grave offense and who therefore may constitute a danger to others.”].

170 See People v. Superior Court (Kenner) (1977) 73 Cal.App.3d 65, 69 [“A person may willingly consent to admit police officers for the purpose of discussion, with the opportunity, thus suggested, of explaining away any suspicions, but not be willing to permit a warrantless and nonemergent entry that affords him no right of explanation or justification.”]; In re Johnny V. (1978) 85 Cal.App.3d 120, 130 [“A consent for the purpose of talking with a suspect is not a consent to enter for the purpose of making an arrest”].

171 See People v. Evans (1980) 108 Cal.App3d. 193, 196 [“[The officers] were inside with consent, with probable cause to arrest but with the intent to continue the investigation”]; People v. Patterson (1979) 94 Cal.App.3d 456, 463 [“There is nothing in the record to indicate that the police intended to arrest Patterson immediately following the entry or that they were not prepared to discuss the matter with Patterson first in order to permit her to explain away the basis of the officers’ suspicions.”]; In re Reginald B. (1977) 71 Cal.App.3d 398, 403 [arrest lawful when made after officers confirmed the suspect’s identity].

Attributions and Licensing

Unless otherwise indicated, this page's content is adapted from the following sources: 5.3 Arrests by Larry Alvarez, used under CC BY 4.0. This page is licensed under CC BY 4.0.