Lead Opinion
Vacated and remanded with instructions by published opinion. Judge GREGORY wrote the majority opinion, in which Judge KEENAN joined. Judge AGEE wrote a dissenting opinion.
OPINION
This case is about the “centuries-old principle of respect for the privacy of the home.” Wilson v. Layne,
I.
The pertinent facts of this case take place over the span of a month and a half. On June 25, 2009, Hill was informed by Virginia State Trooper Cox that his license was suspended. When asked, Hill gave the officer an address in Alexandria, Virginia. Hill testified that he told Trooper Cox that the address was out of date because he could not remember his new mailing address in Lorton, Virginia (hereinafter “the Lorton townhouse”) where he had moved with his girlfriend, Ms. Alvarez, and their eight-year-old son in May of 2009.
On July 12, 2009, Officer Albert from the Fairfax Police Department approached a group of men, including Hill, who were allegedly loitering, and obtained their identification. Later, after the men had dispersed, Officer Albert discovered an electronic scale and concealed marijuana near where the group of men were gathered. Early the next morning, he swore out an affidavit to obtain an arrest warrant for Hill. The warrant for Hill’s arrest listed his address as “unknown.”
On July 17, 2009, Ms. Alvarez called 911 from the Lorton townhouse because of an argument she was having with Hill. Ms. Alvarez testified at the suppression hearing that she hung up the phone before speaking with the 911 operator, but Officer Coligan was dispatched to the Lorton townhouse nonetheless. Ms. Alvarez also testified that the argument did not involve physical violence. Officer Coligan testified that when he arrived Ms. Alvarez told him that Hill resided at the Lorton townhouse, but had left because- of the outstanding warrant for his arrest. Officer Coligan also testified that the door frame of the house was damaged when he arrived, and he discussed having it fixed by the landlord with Ms. Alvarez. He forwarded his report to Sergeant Milam from the warrant department.
Hill spent more than half of his nights at the Lorton townhouse between the July 17th incident and July 29th, 2009, but this was not known to police at the time.
On July 29, 2009, Sergeant Milam, Detective Studer, Officers Pleva, and Officer Kroll from the Fairfax Police Department arrived at the Lorton townhouse with a warrant for Hill’s arrest. The warrant indicated that Hill’s address was unknown. Sergeant Milam testified that he thought there was an eighty percent chance that Hill would not return to the Lorton townhouse to avoid being apprehended by police. Instead, Sergeant Milam reported, the police were trying to communicate with Ms. Alvarez concerning Hill’s whereabouts.
Upon arrival, the police knocked on the door. They heard noises which they believed could have been voices or the television. The noises were completely unresponsive to police knocking. Milam noted that the doorframe was damaged. He placed a call to Ms. Alvarez who indicated that she was at work and that the only person who could be at the Lorton townhouse was her sister. Neither the police nor Ms. Alvarez expressed concern about Ms. Alvarez’s sister’s safety, and, notably, Milam did not obtain consent to enter the house during this conversation. Shortly thereafter, Milam decided to turn the doorknob and opened the door. Upon opening the door, Milam discovered Hill and a friend sitting on the couch. They confiscated Hill’s phone, which had a text message from Ms. Alvarez indicating that the police were at the front door.
Officer Pleva conducted a protective search of the home allegedly looking for Ms. Alvarez’s sister. Pleva also testified
Hill was charged in a superseding indictment with one count of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a) and one count of possession of a firearm in connection with a drug trafficking crime in violation of 18 U.S.C. § 924(c).
Before trial, Hill filed a motion to suppress evidence obtained as a result of the search of the Lorton townhouse. The court denied the motion first orally and later in a written order.
Hill entered a conditional plea of guilty to the first count while retaining his right to appeal the denial of his motion to suppress. The district court entered a judgment of conviction and sentenced him to 120 months of incarceration. Hill timely appealed.
II.
On appeal from a motion to suppress, this Court reviews the factual findings of a district court for clear error, and reviews legal determinations de novo. United States v. Kellam,
This case requires an analysis of four doctrines in order to determine whether or not the fruits of the search of Hill’s home should be suppressed. First, we determine whether the search of Hill’s residence was justified as a valid execution of Hill’s arrest warrant. Second, we determine whether the exigency doctrine permits entry into the house. Third, we determine whether Ms. Alvarez’s consent to search the house was valid. Finally, we determine whether the taint from the initial entry was dissipated by Ms. Alvarez’s consent.
A.
i.
The police did not have sufficient reasons upon which to base their belief that Hill was present in the home to execute their arrest warrant. In Payton v. New York, the Supreme Court concluded that police may enter into a home without a search warrant in order to execute an arrest warrant only if “there is reason to believe [that the subject of the warrant] is within.”
Circuits have employed a variety of approaches in defining reasonable belief and its relationship to probable cause. Some circuits have found that reasonable belief is the same as probable cause. See United States v. Hardin,
Other circuits have simply found that the distinction between reasonable belief and probable cause is indefinite or negligible. See United States v. Barrera,
While still other circuits have found that the requirements of reasonable belief are something less than probable cause. See United States v. Thomas,
In light of the diverse views taken by our sister circuits, we decline to reach a conclusion as to whether ‘reason to believe’ is as stringent as ‘probable cause’ because we conclude below that the police entry was not justified even under the less stringent interpretation of the standard.
ii.
Next we apply the two-part test to determine whether police could lawfully enter Hill’s home to execute their arrest warrant. First, we must decide whether police had reason to believe that the Lorton townhouse was Hill’s residence. At the suppression hearing, Hill essentially conceded this point because in order to have standing to contest the search he had to establish that he had an expectation of privacy at the residence. Additionally, the report stemming from Ms. Alvarez’s domestic violence call stated that the Lorton townhouse was his residence. Therefore, we find that there was reason to believe that Hill was a resident of the Lorton townhouse.
The second part of the test is whether or not the police had reason to believe that Hill was present; and we conclude that the evidence weighs against so finding. First, there is testimony from Sergeant Milam, the lead officer on the scene, that he did not believe Hill would be present at the home since he had previously been identified at the home by police and fled. Milam even stated that he believed there was an eighty-percent chance Hill would not be present.
The officers relied on hearing unresponsive noises from inside the house, which could have been voices or a television, to support their belief that Hill was present. However, noise coming from inside of a house is not enough to give the police a reason to believe that a defendant is present. This is especially true because before entering the house, Sergeant Milam was informed by a resident of the house, Ms. Alvarez, that Hill was not there and that the noise was most likely coming from her sister who might have been in the house.
In the Fourth Circuit, courts have sanctioned entry .only where multiple facts support a reason to believe that the subject of the arrest warrant is present at the time of entry. See, e.g., United States v. Young,
The government also relies on several cases from outside the Fourth Circuit to conclude that they had sufficient evidence that Hill was present in the home to justify their entry. For instance, it relies on United States v. Lloyd for the proposition that noise inside a house is sufficient to give police a reason to believe someone is inside.
Similarly, the government’s reliance on United States v. Route is misplaced.
In all of these cases, the police had several reasons to believe that the subject of the warrant was present. Here, at best, the police had reason to believe that someone was present and that the individual inside was Ms. Alvarez’s sister. We find that in order to have reason to believe that
Therefore, we conclude that the officers’ entry into Hill’s home was not a proper entry in order to execute an arrest warrant.
B.
The government also contends that its entry was justified by the exigency doctrine. The district court, in determining that the exigency doctrine would apply, provides scant reasoning except to say that “the Court finds that it would have been reasonable for [the police] to enter or certainly simply open the door to determine whether the sister was facing some safety issues.” J.A. 268. We disagree and hold that the evidence does not support a finding that the entry was justified by the exigency doctrine.
In analyzing whether exigent circumstances justified a warrantless search, we ask whether the circumstances would cause an officer to have an “objectively reasonable belief that an emergency existed that required immediate entry to render assistance or prevent harm to persons or property within.” United States v. Moss,
This Court recently cited with approval a non-exhaustive list of factors to consider:
(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) the officers’ reasonable belief that the contraband is about to be removed or destroyed; (3) the possibility of danger to police guarding the site; (4) information indicating the possessors of the contraband are aware that police are on their trail; and (5) the ready destructibility of the contraband.
United States v. Mowatt,
The Supreme Court has found that where officers were called to a house, observed underage drinking, and an altercation, the exigency doctrine was correctly applied. See Brigham,
Where the police have evidence that the danger in question was not imminent, an entry is not justified. United States v. Shea, No. 99-4723,
Here, the police did not have a sufficiently reasonable basis to justify this entry under the exigency doctrine. The factors Sergeant Milam identified to support his contention that his emergency entry was justified are not sufficient. First, Mi-lam suggests that “the door appeared to be very old, and [he] noticed around the frame and the top area to be some damage to the frame a little bit like it had been previously kicked in or broken in.” J.A. 140 (emphasis added). However, slight damage to a door frame is not sufficient to justify an entry without a warrant.
Second, Sergeant Milam expressed concern that there was someone inside the house who was not answering and “that’s not normal behavior.” J.A. 141. Again, this is simply not sufficient evidence to support a warrantless entry into a private home without some articulable fact that justified urgent entry by police. This is especially true since the unresponsive noise could easily have been a television or radio accidentally left on.
Next, Milam indicated that he was concerned about Ms. Alvarez’s sister who he was told might be home, but was not answering the door. However, Milam can point to nothing that would suggest that Ms. Alvarez’s sister was in distress or required police assistance.
Milam also expressed concern about Ms. Alvarez because she had previously called the police to remove Hill. However, any concern about Ms. Alvarez and Hill should have been eliminated when Milam spoke with Ms. Alvarez who was at work and who had assured him that she was fine and suggested her sister would be the only one in the house. Additionally, the 911 call that Ms. Alvarez placed was weeks before the search and no allegations of violence were made against Hill.
Finally, Milam indicated that he heard what sounded like someone attempting to lock a latch on the door. However, the door was not locked when police entered. Furthermore, this evidence does not point to any exigency. Circuit precedent supports a finding that entry was not justified. In Moss, a Forest Service Officer noticed a car parked illegally along the side of the road in a national park. Moss,
This case is very much like Moss in several respects. In both cases, the officer was under some mistaken impressions, which led to his suspicion. In Moss it was that the cabin was not occupied, and, in this case, that the damage on the door was recent.
The Fourth Amendment protects the rights of citizens to refuse to have their homes searched. In order for a search to be legal, the police must have a warrant or their conduct must fall within an exception to the Fourth Amendment. We hold that damage to the door, unsupported hunches of the police, and noises from within are not sufficient to suggest that there was an emergency taking place inside the residence.
Therefore, we find that the initial entry into the Lorton townhouse was unlawful.
C.
Having concluded that the initial entry into the house was unlawful, we turn our analysis to the issue of whether the consent provided by Ms. Alvarez was valid. “The voluntariness of consent to search is a factual question, and as a reviewing court, we must affirm the determination of the district court unless its finding is clearly erroneous.” United States v. Lattimore,
The district court concluded, after weighing the evidence presented to it by Ms. Alvarez and the police, that Ms. Alvarez’s consent to the search of her home when she arrived after Hill’s arrest was voluntary. The district court credited the officer’s testimony over that of Ms. Alvarez. We can find nothing on the record which would support a finding that the district court committed clear error in determining that the consent was valid.
D.
We have determined that the initial entry into the Lorton townhouse was illegal, but that Ms. Alvarez gave her valid consent to the search. Therefore, it becomes necessary to evaluate whether the taint from the initial illegal search was dissipated when Ms. Alvarez gave her consent for the second search.
This Court must evaluate whether the taint is sufficiently dissipated using the “fruit of the poisonous tree” doctrine. Wong Sun v. United States,
If the government wishes to argue that taint from an initial search is dissipated by the validly obtained consent, it bears the burden of so showing. United States v. Seidman,
We have previously found that an individual’s consent can be sufficient to dissipate the taint of an illegal search. See Seidman,
In a similar case, the Eleventh Circuit has taken a more limited view of the taint doctrine. In United States v. Delancy, the Eleventh Circuit found that the written and oral consent from a girlfriend was sufficient to dissipate the taint of the illegal entry by police.
The second factor to consider is the existence and importance of any intervening circumstances. This Court and the Supreme Court have consistently held that an analysis of the voluntariness of a statement is a separate inquiry from determining whether the taint from a Fourth Amendment violation has dissipated. Cf. Taylor v. Alabama,
[T]he Supreme Court has found intervening circumstances only when the events were sufficient to break the “causal chain[ ] between the [Fourth Amendment violation] and the statements made subsequent thereto.” Brown,422 U.S. at 602 ,95 S.Ct. 2254 . Examples of intervening circumstance sufficient to break that chain include a hearing before a magistrate judge at which the defendant was advised of his rights, see Johnson v. Louisiana,406 U.S. 356 , 365,92 S.Ct. 1620 ,32 L.Ed.2d 152 (1972); an arraignment plus a six-day release from custody, see Wong Sun,371 U.S. at 491 ,83 S.Ct. 407 ; and the issuance of a valid search warrant that resulted in the independent discovery of drugs and a spontaneous admission, see Rawlings v. Kentucky,448 U.S. 98 , 108-09,100 S.Ct. 2556 ,65 L.Ed.2d 633 (1980). See also United States v. Wellins,654 F.2d 550 , 555 (9th Cir.1981) (finding intervening circumstance when defendant was allowed to consult with his lawyer).
Seidman,
Here, the continued presence of the law enforcement officers inside the home, subsequent to their illegal search, is a significant consideration in determining whether the taint had dissipated. “[W]here government agents inform a defendant that they have entered his house and are in control thereof and that they have found contraband, there is a strong possibility that the consent is a fruit of the original illegal entry.” United States v. Collazo,
Another significant consideration is the fact that the person providing consent in this case was not the defendant, but instead was the defendant’s girlfriend, Ms. Alvarez. Additionally, Ms. Alvarez was not present in the home at the time that the police entered the residence.
There is limited evidence in this record regarding the circumstances surrounding Ms. Alvarez’s consent. For example, we do not know: how many police officers were present in the house and whether
The third factor to consider in this analysis is the flagrancy of the police conduct. This analysis turns at least in part on whether the violation “is the sort of police behavior that the Brown ... test is meant to discourage.” United States v. Miller,
Other factors may weigh in favor of finding the conduct was not flagrant, including that the officers did not use or exploit the evidence that they obtained during the initial search to gain consent. See Seidman,
It will ultimately be the district court’s role to weigh the evidence alongside these factors, and evaluate the flagrancy of the police conduct.
Therefore, since the district court has not addressed this issue, it is appropriate to remand the case for a full factual development of the record and a determination of whether the taint had dissipated by the second search. Collazo,
We vacate the district court’s denial of Hill’s motion to suppress, and remand this matter to develop the record and determine whether Ms. Alvarez’s consent was sufficient to dissipate the taint from the initial illegal search of the Lorton townhouse.
Accordingly, this case is
VACATED AND REMANDED WITH INSTRUCTIONS.
Notes
. It is true that the subjective beliefs of an officer are not relevant here. Whren v. United States,
. The court in Lloyd also relied on the fact that the smell of ether permitted the officers to enter the home as a result of the exigent circumstances. Id. at 955.
. The government also cites United States v. Phillips,
. Practically speaking, if the police had concerns about the door frame they could have asked Ms. Alvarez about it while they were talking to her on the phone. Instead of taking the extreme step of entering a private home without a warrant, the police had a clearly less invasive means of ascertaining what, if anything, was transpiring within the house. Ms. Alvarez was cooperative and forthcoming from the perspective of the police having previously informed them that Hill fled as a result of an outstanding warrant.
. In fact, police had previous knowledge that the door frame had been damaged because when the police were called to the house on July 17, 2009, the damage was noted.
. In the initial briefing for this case, neither party raised this issue. However, the court ordered additional briefing with respect to this issue prior to oral argument. Since the burden to prove dissipation rests with the government, this question was not waived by Hill.
. The government's reliance on United States v. Liss is misplaced since the majority in that opinion does not even perform a Brown analysis.
. The inevitable discovery doctrine is not appropriate here since "[t]he premise of the inevitable discovery doctrine is that the illegal search played no real part in discovery of incriminating evidence. Only then, if it can be shown that the taint did not extend to the second search, would the product of the second search be admissible.” United States v. Thomas,
Dissenting Opinion
dissenting:
As an appellate court, we are to review the record in the light most favorable to the prevailing party below, which, in this case, is the Government. United States v. Branch,
I.
The Supreme Court’s decision in Payton articulates the relevant standard: “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,
I agree with the majority that the first prong of the Payton analysis is satisfied: the Lorton townhouse was Hill’s residence. Not only has Hill conceded this point, but the district court had ample basis on which to conclude that Hill did reside there. Hill does not challenge the district court’s determination on appeal, so that issue is not before us. See Rosenberger v. Rector & Visitors,
II.
Where the majority opinion and I part ways is with respect to the second prong of the Payton test: did the police have reason to believe that Hill was present at the Lorton townhouse at the time they entered? A full review of the factual record shows that they did.
Although the majority opinion recites the proper standard of review, it fails to apply that principle. When a motion to suppress has been denied, we are to review the evidence in the light most favorable to the Government. See Branch,
The police learned that Hill resided at the Lorton townhouse after Alvarez placed a 9-1-1 call on July 17, twelve days before the events at issue in this appeal. The responding officer, Kirk Coligan, testified that Hill and Alvarez were arguing. When Officer Coligan asked both of them to “get back and get down” in order to assess what was happening, Hill “approached [him] walking towards the front door like he was about to lay [sic] down on the ground in front of [him]. As soon as [Hill] reached that threshold of the doorway, he ran from [Coligan]” out the front door and “around another block of townhouses.” (J.A. 113.) Officer Coligan initially pursued Hill on foot, but broke off the pursuit because he had no back up and no reason to detain Hill at that time. Officer Coligan returned to the townhouse and spoke to Alvarez, who told him she and Hill had an argument after Hill told her there was a warrant out for his arrest. Alvarez provided Hill’s identity to the officer and gave the Lorton townhome as Hill’s address, indicating that he stayed with her and did not have a current permanent address elsewhere. Officer Coligan subsequently gave Sergeant Milam this information.
The majority recites the testimony of Sergeant Milam and Officer Kroll that they did not believe Hill would be at the Lorton townhome and that the purpose of their visit was investigational. However, that account does not fully represent the record. The recited testimony is immaterial to the relevant inquiry not simply because it relates Sergeant Milam and Officer Kroll’s subjective beliefs, but because it also relates to views held prior to arriving at the townhouse. That partial testimony does not account for the circumstances the officers observed and encountered upon arriving at the scene. Our review is based on the totality of the circumstances known to the police at the time they entered the residence. Regardless of the reasons for initially arriving at a residence, police officers can encounter a variety of circumstances once on the scene that may or may not support the conclusion that they possessed the reasonable belief that a suspect would be inside his residence. E.g., United States v. Werra,
To the extent that — as the majority expresses it — the subjective views of Sergeant Milam are relevant as “evidence of a reasonable reading of the objective facts from an experienced officer’s perspective,” Maj. Op. at 263 n. 1, the record shows Milam’s belief evolved from that relied on by the majority opinion. Sergeant Milam testified that he had a “sneaking suspicion” Hill would be inside the residence based on how events unfolded once he and the other officers arrived at the townhouse. (J.A. 164.) This “on-scene” assessment was formed precisely at the relevant moment of the proper inquiry as opposed to Sergeant Milam’s belief formed prior to going to the residence.
Next, the majority opinion points out that “the police had documented another primary residence for Hill based on [his] recent traffic citation, further lessening the chances that Hill would be present in the home.” Maj. Op. at 264. This conclusion is flawed for at least three reasons. First, it calls into question the issue whether the Lorton townhouse was Hill’s residence, which — as discussed above and the majority opinion agrees — is not at issue on appeal. The Lorton townhouse was Hill’s residence. Second, it conveniently ignores the information Hill actually provided to police at the time he received the traffic citation, which was that he no longer lived at the address listed on his driver’s license. That driver’s license address
The majority opinion next discounts the probative value of the noises the police heard from inside the Lorton residence as evidence that Hill was present. When the police arrived at the townhouse, Sergeant Milam knocked on the front door and announced that it was the police. He heard “voices or a TV inside” and “[a]t one point, it sounded like the door — the lock on the door was clicking, but I wasn’t for certain what that was.” (J.A. 138-39, 149-50; 164; 174.) No one responded to the officers’ repeated, loud knocking and announcing. Due to his familiarity with the general layout and size of the town-houses in that area, Sergeant Milam believed that “it would be pretty much impossible not to hear those knocks.” (J.A. 152.)
The noises the police officers heard from inside the townhouse are similar to the noises identified in other cases as part of the totality of the circumstances test. Contrary to the majority opinion’s implication, there is no requirement that noises be “responsive” to the officers’ knocking in order to be part of an objective basis for believing that an individual is present. See, e.g., United States v. Lloyd,
Another of the majority opinion’s misleading interpretation of the facts concerns Alvarez’s statements to Sergeant Milam during their telephone conversation. The testimony at the suppression hearing showed that when no one responded to the knocks, Sergeant Milam called Alvarez’s cell phone. Alvarez indicated that she was not at home and that “her sister should be home.” (J.A. 102, 140-42, 150-51.) The majority opinion casts this testimony as Alvarez “indicating] that she was at work and that the only person who could be at the Lorton townhouse was her sister.” Maj. Op. at 261 (emphasis added). The record reflects this characterization is incorrect; Alvarez neither included nor excluded Hill as being in the townhouse. At most, Alvarez’s testimony indicates she had no first-hand knowledge because she was not at the townhouse, and that she believed her sister may be there.
Here, Alvarez was at work, and thus had no way of ensuring the veracity of her statements to the police. Instead, she could only offer her belief based on the information she believed to be true at the time. Significantly, and contrary to the majority opinion’s interpretation of her statements, Alvarez offered no tangible information that would lead the police to conclude Hill could not be inside the residence. Viewing all the circumstances, courts have held there to be a reasonable belief to proceed with entering a residence even where an individual on-the-scene states that the suspect is probably — or even definitively — not inside, where other circumstances support a contrary conclusion. See e.g., Veal,
At bottom, the majority’s review of the factual basis for the officers’ determination that Hill was inside the Lorton townhouse does not accurately and fully reflect the facts developed in the district court and does not state those facts in the light most favorable to the Government. Properly viewed, the record below established at least the following facts:
• Hill had fled police at the Lorton townhouse twelve days earlier;
• No one responded to the officers’ repeated, loud knocks and announcement as to their presence;
• The townhouse was small and laid out in such a way that an individual inside should hear the knocks;
• Police heard noises — voices or possibly the television — inside the townhouse, and at one point an officer believed he heard a lock turning; and
• Alvarez was not at the Lorton townhouse, but thought that her sister may have been inside.
In addition to these facts, at least two permissible inferences also existed — Hill would most likely not respond to the police if he was inside the residence, and Alvarez’s sister had no known reason not to answer the door.
III.
The foregoing facts, viewed in light of the Supreme Court’s instruction in Pay-ton, lead me to conclude that the district court did not err in holding that the police had reason to believe Hill was inside the Lorton townhouse at the time they entered. Although there is scant Fourth Circuit precedent available, persuasive authority from other Circuit Courts of Appeals is helpful in applying the standard set forth in Payton.
At the outset, I note that the majority opinion wrongly articulates how courts are to assess whether the police had reason to believe the suspect was inside the residence. It states that courts within the Fourth Circuit “have sanctioned entry only where multiple facts support a reason to believe that the subject of the arrest warrant is present at the time of entry.” Maj. Op. at 264. The first case referenced, United States v. Young,
The second case cited, United States v. Morgan, No. 92-5068,
Instead, as Payton and courts in other circuits have observed, the test is a totality-of-the-cireumstances analysis. The analysis does not require a court to find a certain number of facts, and could be based on one fact bearing sufficient gravitas. We are not called to itemize the factors favoring and opposing the conclusion purely to assess which side is greater in number. Instead, as the Tenth Circuit noted in Valdez, we are called to be
sensitive to common sense factors indicating a resident’s presence. Direct surveillance or the actual viewing of the suspect on the premises is not required. Indeed, the officers may take into account the fact that a person involved in criminal activity may be attempting to conceal his whereabouts. The suspect’s presence may be suggested by the presence of an automobile, the time of day, observing the operation of lights or other electrical devices, and the circumstances of a suspect’s employment. And the officers may consider an absence of evidence the suspect is elsewhere. No single factor is, of course, dispositive. Rather, the court must look at all of the circumstances present in the case to determine whether the officers entering the residence had a reasonable belief that the suspect resided there and would be found within.
Here, as detailed above, the police had sufficient reason to believe Hill was inside the townhouse based on several pieces of information. This is not the situation identified in the majority opinion where the police “solely reified] on an unidentified noise coming from within the home” as the basis for their entry. Maj. Op. at 265. The officers knew Hill would likely try to hide from them because he had fled the residence a few days before upon seeing police approach the townhouse. They had a reasonable basis on which to conclude that an individual inside the house would hear their knocks, they heard noises like voices emanating from inside the home, and Alvarez was not at home to confirm or deny Hill's presence. Similarly, as the district court found, if Alvarez’s sister was present, she had no reason not to answer the door, while Hill had every reason not to do so. The police were not required to ascertain that Hill was, in fact, inside the residence; they are only required to have “reason to believe” he was there. Viewed in the totality, this record satisfies the standard set forth in Payton.
For the foregoing reasons, I respectfully dissent. I would affirm the district court’s judgment finding that the entry satisfied the requirements of the Fourth Amendment.
. The majority opinion correctly notes a split among the circuits as to what constitutes the “reason to believe” standard. See Maj. Op. at 262-63. No published Fourth Circuit case has previously addressed the application of Payton in this regard, but I agree with the majority that this is not the proper case to address this issue.
. While the majority recites this encounter, it fails to note that Hill fled the residence upon seeing Officer Coligan.
. Since the police entry satisfied Payton, I do not believe it is necessary to address the district court's alternative holding that the police were justified in entering based on exigent circumstances, although I concur with the majority’s analysis in section II.B. that the district court erred in that analysis.
. Even if a remand to consider the “taint” issue were appropriate, it is an issue never