SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

the house that Buie might have been found, . . .” (Maryland v. Buie
(1990) 494 U.S. 325, 330 [108 L.Ed.2 nd 276, 283].)
If the person is in a third party’s home, absent consent to enter, a search
warrant for the residence must be obtained in addition to the arrest
warrant. (Steagald v. United States, supra, at pp. 211-222 [68 L.Ed.2 nd at
pp. 45-52]; People v. Codinha (1982) 138 Cal.App.3 rd 167; see P.C. §
1524(a)(6))
Sufficiency of Evidence to Believe the Suspect is Inside: The amount of
evidence a law enforcement officer must have indicating that a criminal suspect is
in fact presently inside his own residence 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.
An early California lower appellate court found that the officers needed
only 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 People v. Phillips (9 th Cir. 1974) 497 F.2 nd 1131; a locked
commercial establishment, at night; and United States v. Gorman (9 th Cir.
2002) 314 F.3 rd 1105; defendant in his girlfriend’s house with whom he
was living.)
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; but,
see below.)
In order to conduct a Fourth Waiver search of a residence, an officer must
have probable cause to believe that the residence to be searched is in fact
the parolee’s (or probationer’s) residence. Motley v. Parks (9 th Cir. 2005)
432 F.3 rd 1072, 1080-1082; United States v. Franklin (9 th Cir. 2010) 603
F.3 rd 652.)
© 2012 Robert C. Phillips. All rights reserved
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