SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

esidence in order to justify a non-consensual entry, with or
without an arrest warrant, has been debated over the years:
The United States Supreme Court, in Peyton v. New York
(1980) 445 U.S. 573 [63 L.Ed.2 nd 639], merely states that a
police officer must have a “reason to believe” the suspect is
inside his residence, without defining the phrase.
A California lower appellate court found that the officers
needed a “reasonable belief,” or “strong reason to believe,”
the suspect was home. (People v. White (1986) 183
Cal.App.3 rd 1199, 1204-1209; rejecting the defense
argument that full “probable cause” to believe the subject
was inside is required; see also United States v. Magluta
(11 th Cir. 1995) 44 F.3 rd 1530, 1535, using a “reasonable
belief” standard.)
Other authority indicates that a full measure of “probable
cause” is required. (See Dorman v. United States (D.C.
Cir. 1970) 435 F.2 nd 385, 393; see also United States v.
Phillips (9 th Cir. 1974) 497 F.2 nd 1131; a locked
commercial establishment, at night; United States v.
Gorman (9 th Cir. 2002) 314 F.3 rd 1105; defendant in his
girlfriend’s house with whom he was living; and United
States v. Diaz (9 th Cir. 2007) 491 F.3 rd 1074; and United
States v. Gooch (9 th Cir. 2007) 506 F.3 rd 1156, 1159, fn. 2.)
It has been argued that the California Supreme Court,
interpreting the language of P.C. § 844 (i.e., “reasonable
grounds for believing him to be (inside)”), has found that
any arrest, with or without an arrest warrant, requires
probable cause to believe the subject is inside in order to
justify a non-consensual entry into a residence. (People v.
Jacobs (1987) 43 Cal.3 rd 472, 478-479.)
© 2012 Robert C. Phillips. All rights reserved
Noting that five other federal circuits have ruled that
something less than probable cause is required, and that the
Ninth Circuit is a minority opinion (see United States v.
Gorman, supra.), the Fourth District Court of Appeal (Div.
2) found instead that an officer executing an arrest warrant
or conducting a probation or parole search may enter a
dwelling if he or she has only a reasonable belief, falling
short of probable cause to believe, the suspect lives there
and is present at the time. Employing that standard, the
entry into defendant’s apartment to conduct a probation
search was lawful based on all of the information known to
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