Metropolitan News-Enterprise


Thursday, January 2, 2003


Page 3


Ninth Circuit Requires Probable Cause for Entry With Arrest Warrant


By a MetNews Staff Writer


A law enforcement officer may not enter a third party’s home with a search warrant without probable cause to believe the person named in the warrant is there, the Ninth U.S. Circuit Court of Appeals ruled Tuesday.

Clarifying the previously articulated rule that police with an arrest warrant must have a “reason to believe” their subject is on the premises before going in, the court threw out an accused felon’s guilty plea and held that the “reason to believe” standard requires the same high degree of protection and reasonableness inherent in determining probable cause.

The ruling marks the first time since the U.S. Supreme Court’s decision in Payton v. New York  established the “reason to believe” standard in 1980, and the first time since the Ninth Circuit used it 20 years ago in United States v. Underwood, that the term was defined in a Ninth Circuit case.

But other circuits, while reaching different conclusions, have drawn upon case law defining probable cause for issuing search warrants, and Judge Harry Pregerson said the reasonableness standards for arrest warrants were no lower, despite the fact that the words “reason to believe” are reminiscent of the lower reasonable suspicion standard.

“Nothing in Underwood or Payton precludes us from using the same standard of reasonableness for the ‘reason to believe’ standard,” Pregerson said. “Rather, Underwood, Payton, and our subsequent cases suggest that the standard of probable cause, and not reasonable suspicion, is the standard already being applied in this circuit.”

The ruling permits Clarence Kenneth Gorman to withdraw his guilty plea to a charge of possessing a counterfeit postal key and remands to the U.S. District Court in San Diego for a suppression hearing.

The key was recovered when San Diego police officers went to the home of Gorman’s girlfriend’s mother with an arrest warrant, but no search warrant, at 4:30 a.m. on Nov. 6 2000. After watching the house for an hour, they pounded on the front door until the girlfriend, Helen Anzelmo Vestle, came and asked through the door what they wanted.

She later testified that the police told her she had to open the door because they had a warrant for “Vestle Anzelmo,” although their only warrant was for Gorman. She also said they told her she could be arrested for harboring a federal fugitive, and after she opened the door they made her sit down outside while they went into the house, discovered the key, and arrested Gorman.

The officers were at the house in the first place because they had heard about a man stealing mail using a mailbox key, went to a van by a housing complex where they heard he lived, and met a man living in the van who told them Gorman was living with a girlfriend named Helen. One of the officers ran a criminal database check on Gorman’s associates, discovered a Helen, and took the arrest warrant to her house.

The judge at the suppression hearing at first granted Gorman’s motion, saying the officers lacked probable cause to believe Gorman was there and at most had a reasonable suspicion.

But prosecutors, citing Underwood, moved for reconsideration and the court reluctantly reversed itself. Four days before trial was to begin, Gorman entered a conditional guilty plea and appealed the denial of his Fourth Amendment suppression motion, as well as the denial of his claim that his speedy trial rights had been denied.

Officers do not need probable cause to believe the person named in their warrant is home in order to enter his own house. They can enter another house with less than probable cause if they get permission from the residents, although banging on the door at 5:30 in the morning, the way the San Diego officers did, could undermine their assertion that they were acting with permission.

But to go into a third party home without permission, courts have required a “reason to believe”óa term used interchangeably with “reasonable belief” and “reasonable grounds for believing.” Just what any of those terms mean has never before been clear.

“The Supreme Court did not define the “reason to believe” standard in Payton nor has it defined the standard subsequently,” Pregerson wrote. “We did not define the “reason to believe” standard in Underwood nor have we explicitly defined the standard subsequently. We now conclude that the “reason to believe” standard of Payton and Underwood embodies the same standard of reasonableness inherent in probable cause.”

The case is United States v. Gorman, 02-50053.


Copyright 2003, Metropolitan News Company