Lead Opinion
On December 7, 1993, FBI Special Agent Samuel Michael McPheters and Bureau of Indian Affairs (“BIA”) Police Officer Gregory Littlewhiteman arrived at the plaintiff Rosanna Valdez’s residence in La-Point, Utah. The officers told the plaintiff that there was an outstanding felony warrant for the arrest of her son, Raymond Nathaniel Valdez. McPheters told the plaintiff they would like to come inside to see if her . son was present.
There is a dispute as to whether the plaintiff consented to the officers’ entry. According to the officers, the plaintiff told them to “go ahead.” The plaintiff states that she told the officers they could not search for her son without a search warrant.
Special Agent McPheters looked through the residence while Officer Little-whiteman remained with several other persons in the living room area. When they were unable to find Raymond Valdez, the officers left the residence and continued their investigation. They spoke with Sherman Dubois, who told the officers that he had seen Raymond Valdez at the residence earlier in the day. The officers then returned to the Valdez residence, but were again unable to find Raymond.
On December 27, Raymond Valdez surrendered to authorities and was placed in the Uintah County jail.
Plaintiff Rosanna Valdez subsequently instituted the present action, alleging the defendants McPheters and Littlewhiteman violated her constitutional rights against unreasonable search and seizure. On March 14, 1996, the District Court granted the defendants’ Motion for Summary Judgment. This appeal followed.
Special Agent Samuel Michael McPhet-ers has worked for the FBI for 27 years. At the time of the events giving rise to this litigation, he served as Resident Agent in Charge of the FBI’s Vernal, Utah office. Officer Gregory Littlewhiteman is a BIA Police Officer assigned to the Uintah and Ouray Agency, headquartered at Ft. Du-chesne, Utah. Littlewhiteman is an enrolled member of the Oglala Sioux tribe. As a result of his job and participation in community outreach activities, Littlewhite-man has become personally acquainted with many of the people who live on or around the Uintah-Ouray reservation.
In November of 1993, the Salt Lake City Police Department obtained an arrest warrant for Raymond Nathaniel Valdez. Valdez was charged by information with one count of burglary (a second degree felony), and one count of theft (a third degree felony). The Salt Lake City police requested assistance from the FBI in apprehending Valdez, advising the agency that “VALDEZ comes into the city on weekends, does a burglary or two then goes back to the Indian Reservation at LaPoint, Utah. VALDEZ’s mother, ROSANNE VALDEZ, lives at LaPoint.” The police also provided the agency with the telephone number for the Valdez residence. (R. 8, at 1).
Rosanna Valdez, the plaintiff, lives in Uintah County, near the town of LaPoint, Utah, with her husband Raymond Valdez, Sr., and several other family members. The residence has a telephone, the number matching that given by the Salt Lake City police to the FBI. An attorney fact sheet filed with the warrant lists Raymond, Jr.’s physical characteristics and denominates his address as “transient.” (R. 7).
The FBI’s Fugitive.Task Force notified Special Agent McPheters of the state arrest warrant for Raymond Valdez on December 7, 1993. McPheters drove to the BIA police headquarters in Ft. Duchesne, where he asked Lt. Ed Reynolds about Valdez’s whereabouts. Reynolds told McPheters that Valdez was living at the
Littlewhiteman told McPheters that Valdez was living at the Valdez residence in LaPoint. Littlewhiteman based this conclusion on information he had gathered during his police duties. This information included the following:
1) On September 27, 1993, while being booked on a drug charge, Valdez stated in Littlewhiteman’s presence that he lived with his mother in LaPoint.
2) Littlewhiteman knows Valerie Tom, who is a friend, neighbor and relative of his wife. In the fall of 1993, Tom was married to Odorico Palesides. Littlewhiteman had twice arrested Palesides on spouse abuse charges during this time period. During the course of making these arrests, Litt-lewhiteman learned that Palesides was an associate of Raymond Valdez. He also knew by sight Tom’s Toyota pickup truck. Tom told Littlewhite-man that Palesides used the pickup truck to drive to the Valdez residence to meet Raymond Valdez, and that the two would go out drinking. This information corresponded with Little-whiteman’s observations during his routine patrols, having seen the pickup truck on several occasions at the Valdez residence during October and November.
3) On December 3, 1993, Roosevelt City Police Officer Steve Hooley told Litt-lewhiteman that Raymond Valdez was living at the Valdez residence in LaPoint.
4) On December 4,1993, Littlewhiteman investigated a single-vehicle accident about a quarter mile from the Valdez residence. He recognized the vehicle as Valerie Tom’s Toyota truck. The vehicle was abandoned, but two star-shaped imprints on the windshield indicated that a driver and a passenger had been in the truck at the time of the accident. Footprints led from the vehicle in the direction of the Valdez residence.
is a dispute about what one of the neighbors told Littlewhiteman in con-with the accident. According to Littlewhiteman, Bonnie Hackford. Mur-told him she had seen the truck at Valdez residence earlier in the day, by a Mexican male, and that she previously seen this person in the company of Raymond Valdez. The plaintiff has submitted an affidavit from Murphy denying she made these com-to Littlewhiteman. It is undis-however, that the accident occurred in close proximity to the Valdez residence, and that Littlewhiteman knew vehicle was used by a friend of the suspect under investigation.
5)It is uncontroverted that Littlewhite-man knew that Raymond Valdez was unemployed, that he liked to stay out late at night drinking, that he sometimes abused drugs including heroin and cocaine, and that he was suspected of several nighttime burglaries. From the knowledge of his lifestyle gained during the course of his normal law enforcement duties, Little-whiteman believed that Valdez would be at the Valdez residence about noon on December 7, 1993.
The district court granted the defendants’ summary judgment motion, finding under Payton v. New York,
In the present appeal, Valdez contends that the defendants’ entry into her residence violated her rights protected under
One of the circumstances which may permit an entry into a residence without a search warrant is the existence of a valid arrest warrant for a suspect who is believed to live in the residence. This is because “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.” Payton,
The majority of circuits which have addressed the issue have agreed that, under Payton, police officers entering a residence pursuant to an arrest warrant must demonstrate a reasonable belief that the arrestee lived in the residence, and a reasonable belief that the arrestee could be found within the residence at the time of the entry. See United States v. Route,
Only one circuit has suggested a higher knowledge standard on the part of law enforcement officers. In United States v. Harper,
This court finds the defendants were entitled to enter the Valdez residence if there was a reasonable basis for believing that Raymond Valdez, Jr. both (1) lived in the residence and (2) could be found within at the time of entry. As to the level of knowledge required by the officers, the Supreme Court in Payton explicitly indicated that entry is permissible so long as there is “reason to believe the suspect is within.”
More importantly, requiring actual knowledge of the suspect’s true residence would effectively make Payton a dead letter. In the real world, people do not live in individual, separate, hermetically-sealed residences. They live with other people, they move from one residence to another. Requiring that the suspect actually reside at the residence entered would mean that officers could never rely on Payton, since they could never be certain that the suspect had not moved out the previous day and that a Bivens or a 42 USC § 1983 claim would then be made against them by another resident. The better rule is that both prongs of the Payton test are governed by the same test—reasonable belief on the part of the officers. The officers’ belief need not prove true in fact, it is sufficient if the belief was objectively reasonable at the time of entry. United States v. Risse,
Payton and Steagald cannot be understood to divide the world into residences belonging solely to the suspect on the one hand, and third parties on the other. The rule announced in Payton is applicable so long as the suspect “possesses common authority over, or some other significant relationship to,” the residence entered by police. Risse,
Turning to the second prong of the Payton test, courts “must 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. Magluta,
In the present case, the Salt Lake City Police Department had informed the FBI that Raymond “comes into the city on weekends, does a burglary or two then
Littlewhiteman submitted an affidavit stating that he knew Raymond would probably be home around midday, since he knew Raymond was unemployed, liked to stay out late drinking, sometimes abused drugs such as heroin and cocaine, and was suspected of having committed at least two nighttime burglaries.
Plaintiff Valdez stresses that she denied to the defendants that Raymond lived there or that she and her family knew where he in fact was. It is also stressed that the Salt Lake County Attorney Fact Sheet prepared in connection with the investigation lists Raymond’s address as “transient.” (R. Exh. 7 at 1). If this were the only evidence in the case as to Raymond’s residence, it would of course fatally undermine the defendants’ qualified immunity based on an objective belief Raymond lived at the Valdez residence. But, under the circumstances of the case, such information only tends to support a determination of qualified immunity. That is, the officers knew from a variety of sources that Raymond had been living with his mother, including Raymond’s own statements in the presence of defendant Little-whiteman. The fact that the suspect was otherwise known to be young, unemployed, and “transient” suggests, if anything, that
Given the facts present in the case, the district court did not err in concluding that the defendants could have reasonably concluded that Raymond Valdez, Jr. lived in the residence, and that he would likely be present inside.
AFFIRMED.
Notes
. Perez, however, does not directly support a determination that "probable cause” rather than "reasonable grounds” is the appropriate standard. In its initial opinion, the court in Perez was concerned by evidence that suggested the person named in the warrant, the plaintiff's brother, was at most a temporary guest in his sister's searched apartment, and at most “may have occasionally spent the night there.”
if the officers did not have reasonable grounds for believing that Albert resided in the apartment, the search was illegal under Steagald.
Similarly, the court initially wrote:
Unless a jury finds that Albert was an actual co-resident of the apartment, and that the police had reasonable grounds for believing that Albert was in the apartment at the time, the search was in violation of Irma Perez’s constitutional rights.
Unless a jury finds that the officers had reasonable grounds for believing that Albert was a co-resident of the apartment, and for believing that Albert was in the apartment at the time, see Payton,445 U.S. at 603 ,100 S.Ct. at 1388 , the search was in violation of Irma Perez's constitutional rights.900 F.2d at 213 (emphasis added).
The actual status of law in the Ninth Circuit is open to question. In United States v. Albrektsen,
. While surveillance certainly may bolster a Payton entry, the cases fail to reveal any requirement of substantial prior surveillance of a residence prior to entry. Compare Harper,
. One consideration which is not relevant to this determination involves information gained after the entry. Since the focus is the reasonableness of the officers' actions, evidence which is obtained after the entry cannot be used to establish the legality of those actions or, conversely, invalidate an otherwise reasonable entry. Here, for example, when Raymond finally surrendered himself on December 27, 1993, he was asked for his address while he was being booked. He responded by stating that he lived at the Valdez residence in LaPoint. Since this information was not known to the defendants at the time of the entry into the Valdez residence, it cannot retroactively justify the defendants’ conduct.
. The plaintiff suggests an alternative explanation for the pickup’s presence at her house, stating that Tom was a friend of hers, and that the pickup truck was present when Tom came to visit not Raymond Valdez, Jr., but the plaintiff. As with the after-the-fact determination about where Raymond actually lived, the true reason for the pickup truck’s presence is not controlling. Rather, the case must be decided on the basis of what the officers knew at the time of their entry into the residence. Here, there is no evidence McPheters and Littlewhiteman had any reason to take the frequent presence of the white pickup truck as anything other than another indication that the suspect continued to reside in the Valdez house.
. The dissent seeks to minimize these uncon-troverted facts by treating the officers’ conclusion as a single piece of ’’evidence”, when the conclusion itself is grounded on these several facts known by the defendants prior to their first entry. Additionally, although not articulated as such, the dissent seemingly applies a standard much closer to "probable cause” than "reasonable belief.” While probable cause itself is a relatively low threshold of proof, it is a higher standard than “reasonable belief”, which is, as everyone agrees, the appropriate standard. See Alabama v. White,
. It may be noted that even under the "actual presence" test suggested by the Ninth Circuit in Harper, there are grounds for affirming the district court's award of summary judgment. In Harper, the court held that evidence available to the officers supported an entty without a search warrant, although "just barely.”
Concurrence Opinion
concurring in part and dissenting in part.
The majority states the legal standard under Payton as follows: “[DJefendants were entitled to enter the Váldez residence if there was a reasonable basis for believing that Raymond Valdez, Jr. both (1) lived in the residence and (2) could be found within at the time of entry.” Maj. Op., ante, at 1225. Applying this test, the majority found that agents McPheters and Littlewhiteman (collectively “defendants” or “agents”) possessed a reasonable basis for concluding that Raymond Nathaniel Valdez (“Raymond”) resided at his mother’s home and that he was present when they conducted their warrantless, noncon-sensual search. Because I disagree with the latter conclusion, I respectfully dissent.
I. Payton’s First Prong: Suspect’s Residence
The majority concludes that the defendants reasonably believed that Raymond resided at his mother’s home for Payton purposes. In doing so the majority, for the first time in this circuit, articulates the standard of certainty officers must have about a suspect’s residence before entering with only an arrest warrant. While ultimately I agree with the majority that the defendants have made a sufficient showing under Payton’s first requirement to entitle them to qualified immunity, I write separately on this issue to discuss what level of certainty Payton and the Fourth Amendment require an officer to possess regarding whether a suspect resides at a certain location before entering that residence on the basis of an arrest warrant alone.
The majority correctly notes that the other circuits to consider the issue have almost unanimously adopted the reasonable belief standard for residence. See Maj. Op., ante, at 1224-1225. The reasons for doing so have been articulated with varying degrees of clarity in the opinions cited by the majority. See United States v. Route,
I have no doubt that within the qualified immunity context, the majority articulates
II. Payton’s Second Prong: Suspect’s Presence
In order to be entitled to summary judgment based on qualified immunity, the agents also must meet the second requirement of Payton’s clearly established law— they must have possessed a “reason to believe the suspect [was] within” Mrs. Valdez’s home at the time they entered. See Payton,
The majority catalogues a number of circumstances that this and other circuit courts have recognized as bases for a reasonable belief of a suspect’s presence within his home. Specifically, the majority identifies “presence of an automobile, ... the time of day, ... operation of lights or other electrical devices, ... and the circumstances of a suspect’s employment” as recognized evidence of presence. See Maj. Op., ante, at 1226. Notwithstanding the myriad ways to infer presence and the forgiving standard for evaluating whether an officer’s belief of a suspect’s presence is reasonable, this case stands in stark contrast to those cited by the majority because the instant record is devoid of any reliable evidence known to the agents indicating that Raymond was actually home at the time of the defendants’ search.
The majority cites exactly one piece of evidence
Littlewhiteman submitted an affidavit stating that he knew Raymond would probably be home around midday, since he knew Raymond was unemployed, liked to stay out late drinking, sometimes abused drugs such as heroin and cocaine, and was suspected of having committed at least two nighttime burglaries. Significantly, the plaintiff did not offer any facts which would contradict Littlewhiteman’s affidavit on Raymond’s suspected nocturnal activities.2
Maj. Op., ante, at 1227 (emphasis added) (footnote omitted). Based upon this “portrait of Raymond Valdez, Jr.’s night life,” the officers claim they formed a reasonable belief that Raymond would be home at noon on December 7, 1993. In my estimation, Payton’s second prong requires more.
At most, this “evidence” of Raymond’s lifestyle implicates the interrelated “time of day” and “circumstances of employment” factors identified by the majority. According to the “time of day” cases cited, ante at 1226, early morning has been recognized as a time when suspects can probably be found at home. See United States v. Edmonds,
Significantly, the officers in all three of the “time of day” cases cited by the majority had other indicia of presence besides' the time of day at which they conducted their search. In Edmonds, the officers arrived at 6:45 a.m., and “[o]n their arrival, the observed the [defendant’s] black Mustang parked in front of the apartment.”
The “circumstances of a suspect’s employment” cases provide the best support for the majority’s conclusion that agents McPheters and Littlewhiteman reasonably believed Raymond was present when they searched his mother’s home. In United States v. Lauter,
Here, the agents paint a vague picture of Raymond as an unemployed, late-night drinking, drug-abusing party-goer. Accepting that picture as accurate, I find that the agents presented no evidence that Raymond had engaged in any late-night activities, let alone drinking or drug abuse, the night before they conducted their search. Further, the agents presented no evidence — assuming that Raymond had painted the town the night before the search — that he retired to his mother’s house after the revelry ended. In light of the agents’ knowledge of Raymond’s “transient” nature, I find the leap too great from their general impressions of Raymond’s lifestyle to a reasonable belief that he would be present at his mother’s house at noon on the random day they chose to search. See Blake v. Peterson, No. 94-C-6561,
The majority correctly explains that “[d]irect surveillance or the actual viewing of the suspect on the premises is not required.” Maj. Op., ante, at 1226. However, officers must possess some specific facts that indicate a suspect will be found within his or her home at the time, on the day the officers decide to search, in order to justify entry into a suspect’s home based on an arrest warrant alone. By sanctioning the search of agents McPhet-ers and Littlewhiteman, the majority today almost entirely eviscerates the second requirement that Payton imposes before an agent, armed only with an arrest warrant, can enter a suspect’s home. The limited rule permitting early-morning or late-evening searches when other evidence indicates that a suspect is at home, now extends until noon. I cannot say that
. I deal here with only the first of the two unsuccessful searches executed by the agents on December 7, 1993, at the Valdez home. For purposes of a cause of action under § 1983 predicated upon that first search, I find it irrelevant that “after the first search on December 7, a witness (Sherman DuBois)
. Moreover, the majority’s paraphrasing of Littlewhiteman’s declaration implies a greater level of certainty regarding finding Raymond at his mother’s house at noon on December 7, 1993, than the words Littlewhiteman used under oath. Instead of stating that he "knew” that Raymond would be home around midday or that he "knew” about Raymond’s lifestyle, Littlewhiteman actually said only that he had "information” that “indicated that Valdez was unemployed, that he liked to stay out late at night drinking, that he sometimes abused drugs such as heroin and cocaine, and that he was suspected of having committed at least two burglaries which had occurred at night. Based on his lifestyle, I believed that Valdez would be at the Valdez residence when we went looking for him about noon.”
As indicated in the text of my dissent, this information is inadequate, in my opinion, to support any reasonable belief as to where Raymond could be found at noon on December 7, 1993. If anything, it merely emphasizes Raymond’s itinerate and unstructured lifestyle and it establishes that no one had any reasonable basis for concluding that he would be at his mother's home at noon on December 7.