SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

ensuing standoff does not dissipate that exigency to where officers are
expected to seek the authorization of a judge to take the suspect into physical
custody. (Fisher v. City of San Jose (9 th Cir. 2009) 558 F.3 rd 1069;
overruling its prior holding (at 509 F.3 rd 952) where it was ruled that failure
to obtain an arrest warrant during a 12 hour standoff resulted in an illegal
arrest of the barricaded suspect.)
Entry of a residence to execute a bench warrant, issued by a neutral
magistrate upon a defendant’s failure to appear in court, is lawful despite
the fact that the bench warrant was issued without a finding of probable
cause. (United States v. Gooch (9 th Cir. 2007) 506 F.3 rd 1156.)
But, before a police officer may enter a home, absent consent to
enter, the officer must have a reasonable belief, falling short of
probable cause to believe, the suspect lives there and is present at
the time. (People v. Downey (2011) 198 Cal.App.4 th 652, 657-
662.)
But see prior decisions finding that “probable cause” to
believe the person who is the subject of the arrest warrant is
actually inside at the time is the correct standard. (People
v. Jacobs (1987) 43 Cal.3 rd 472; United States v. Gorman
(9 th Cir. 2002) 314 F.3 rd 1105; People v. Phillips (9 th Cir.
1974) 497 F.2 nd 1131; United States v. Diaz (9 th Cir. 2007)
491 F.3 rd 1074; United States v. Gooch, supra, at p. 1159,
fn. 2; Cuevas v. De Roco (9 th Cir. 2008) 531 F.3 rd 726;
United States v. Mayer (9 th Cir. 2008) 530 F.3 rd 1099,
1103-1104.)
See “Sufficiency of Evidence to Believe the Suspect is Inside,”
below.
“Because an arrest warrant authorizes the police to deprive a person of his
liberty, it necessarily also authorizes a limited invasion of that person's
privacy interest when it is necessary to arrest him in his home.” (Steagald
v. United States (981) 451 U.S. 204, 214-215, fn. 7 [68 L.Ed.2 nd 38, 46].)
“Thus, 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.” (Italics added; Payton v. New York (1980) 445 U.S.
573, 603 [63 L.Ed.2 nd 639, 661].)
“It is not disputed that until the point of Buie's arrest the police had the
right, based on the authority of the arrest warrant, to search anywhere in
© 2012 Robert C. Phillips. All rights reserved
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