Case Law Limitations:

Ramey:

Ramey:  Within One's Own Residence:  Warrantless arrests within a private residence are restricted because of the constitutional right to privacy interests a person, even criminal suspects, have within their own home.  (See below)

General Rule

General Rule:  Arrests in one's home for a felony or misdemeanor may only be made with prior judicial authorization in the form of an arrest warrant.  (People v. Ramey (1976) 16 Cal.3^rd 263, 276; Payton v. New York (1980) 445 U.S. 573 [63 L.Ed.2^nd 639].)

Police officers need either (1) an arrest warrant or (2) probable and exigent circumstances to lawfully enter a person's home to arrest its occupant.  (Kirk v. Louisiana (2002) 536 U.S. 635 [153 L.Ed.2^nd 599].)

Failure to obtain an arrest warrant for an armed, barricaded, drunk in his own home, threatening to shoot police officers, during a standoff that lasts for over 12 hours, held to be a Fourth Amendment violation.  (Fisher v. City of San Jose (9^th Cir. 2007) 509 F.3^rd 952.)

En banc hearing granted on March 14, 2008, setting aside this decision pending further review.

Exceptions

Exceptions:  There are numerous exceptions to this rule:

Consent

Consent: When the occupant of a house consents to the police officers' entry of his or her home. (People v. Superior Court [Kenner] (1977) 73 Cal.App.3^rd 65, 68; People v. Peterson (1978) 85 Cal.App.3^rd 163, 171; see also People v. Ramey, supra, at p. 275; and Payton v. New York, supra, at p. 583 [63 L.Ed.2^nd at p. 649]; and People v. Newton (1980) 107 Cal.App.3^rd 568, 578.)

But "an alleged consenter must be aware of the purpose of the requested entry and a consent obtained trickery or subterfuge renders a subsequent search and seizure invalid."  (People v. Superior Court [Kenner], supra., at p. 69; merely asking for permission to enter "to talk to" the suspect does not justify the warrantless entry and arrest; see also In re Johnny V. (1978) 85 Cal.App.3^rd 120, 132.)

Permission to enter need not be an express consent.  Asking the homeowner for defendant and for permission to "come in and look around" when it was denied that he was present was reasonably interpreted by the police as consent to enter to find defendant for any purpose that they desired, including arrest.  (People v. Newton, supra.)

For the officers to validly rely upon consent, they must reasonably and in good faith believe that the person giving consent had the authority to consent to their entry into the residence.  (People v. Escudero (1979) 23 Cal.3^rd 800, 806.)

Undercover Entries:  Consent obtained by officers working undercover, for the purpose of continuing an investigation, is valid.  It is the "intrusion into," not the arrest while inside, which offends the constitutional standards under Ramey.  Arresting the defendant after having gained lawful entry is not a Ramey violation.  (People v. Evans (1980) 108 Cal.App.3^rd 193, 196.)

"The Fourth Amendment does not protect ‘a wrongdoer's misplaced belief that a person whom he voluntarily confides his wrongdoing will not reveal it.'"  (Toubus v. Superior Court (1981) 114 Cal.App.3^rd 378, 383.)

And just because the undercover officer has momentarily left the residence, such action followed immediately by the reentry of the arresting officers, does not violate Ramey or Payton.  (People v. Cespedes (1987) 191 Cal.App.3^rd 768.)

But the reentry must be simultaneous with, or immediately after, the undercover officer's exit.  (People v. Ellers (1980) 108 Cal.App.3^rd 943; arrest unlawful when after the "buy," during an undercover narcotics investigation, the police drove to a parking lot one mile away, spent ten to twenty minutes formulating a plan to arrest the defendant, and then returned and reentered the house to make the arrest.)

Exigent circumstances

Exigent circumstances: "‘(A) warrantless intrusion may be justified by hot pursuit of a fleeing felon, or imminent destruction of evidence [citation], or the need to prevent a suspect's escape, or the risk of danger to the police or to other persons inside or outside the dwelling.' [citations]" (Italics added; Minnesota v. Olson (1990) 495 U.S. 91, 100 [109 L.Ed.2^nd 85, 95].) Examples:

"Fresh or Hot Pursuit," or at the end of a "substantially continuous investigation:"  A continuous investigation from crime to arrest of the subject in his home, within a limited time period (e.g., within hours), and without an opportunity to stop and obtain an arrest warrant, is "fresh pursuit."  It is not necessary that the suspect be physically in view during the "pursuit."  (People v. Escudero (1979) 23 Cal.3^rd 800, 809-810; In re Lavoyne M. (1990) 221 Cal.App.3^rd 154; People v. Gilbert (1965) 63 Cal.2^nd 690; United States v. Johnson (9^th Cir. 2000) 207 F.3^rd 538.)

Where there was a two and a half hour investigation between a robbery-murder and the location of the defendant's home, the officers were found to be in "fresh pursuit," justifying a warrantless entry to look for the suspect.  (People v. Gilbert (1965) 63 Cal.2^nd 690, 706.)

When officers contact a rape victim half a block from the crime scene, less than an hour after the rape (People v. White (1986) 183 Cal.App.3r 1199, 1203-1204.), or immediately across the street minutes after she escaped from the sleeping suspect (People v. Kilpatrick (1980) 105 Cal.App.3^rd 401, 409-411.), it is "fresh pursuit" when the officers go to the respective suspects' homes, make a warrantless entry, and arrest the suspects.  This was found to be necessary to prevent the escape of the suspect and the destruction of evidence.

Tracing an armed robbery suspect by the vehicle description and license number to a particular residence, justifies a warrantless entry.  (People v. Daughhetee (1985) 165 Cal.App.3^rd 574.)

The entry and securing of a home pending the obtaining of a search warrant, immediately following a gang shooting, was justified when it was believed that a second shooter and the firearms used were likely in the house.  (In re Elizabeth G. (2001) 88 Cal.App.4^th 496.)

Presence of an armed suspect, who had committed a vicious murder who was likely to flee, with the possibility that defendant would dispose of evidence; warrantless entry and arrest was lawful. (People v. Williams (1989) 48 Cal.3^rd 1112, 1138-1139.)

A strong reason to believe that defendant was the killer in the murder of two men, that he was probably armed and at a particular apartment, and that he was likely to flee if not immediately arrested, justified the warrantless entry.  (People v. Bacigalupo (1991) 1 Cal.4^th 103, 122-123.)

Having used a tracking device to follow defendants with stolen stereo speakers to a particular house, the immediate warrantless entry and search was justified by the reasonable fear that defendants would disassemble, destroy or hide the speakers, and wash off identifying fluorescent powder if they waited for a warrant.  (People v. Hull (1995) 34 Cal.App.4^th 1448, 1455.)

Warrantless entry to arrest a DUI (i.e., "Driving while Under the Influence") suspect:

Illegal:  Welsh v. Wisconsin (1984) 466 U.S. 740 [80 L.Ed.2^nd 732], where the state chose to treat a person's first DUI offense as a non-criminal offense, subjecting the suspect to civil forfeiture only.

Legal:  People v. Hampton (1985) 164 Cal.App.3^rd 27, 34, where a warrantless entry was upheld to prevent the destruction of evidence (the blood/alcohol level) and there was reason to believe defendant intended to resume driving.   Welsh can be distinguished by the simple fact that California treats DUI cases as very serious.

Legal:  Entering a house without consent or a warrant to take a suspected DUI driver into custody and to remove him from the house for identification and arrest by a private citizen who saw defendant's driving, held to be legal.  The fact that the defendant's blood/alcohol level might dissipate to some degree pending the obtaining of a telephonic arrest warrant, plus the fact that the suspect might leave and drive again, was sufficient cause to establish an exigent circumstance.   (People v. Thompson (2006) 38 Cal.4th 811.)

A reasonable belief in the imminent threat to life or the welfare of a person within the home, with probable cause to believe a missing person was inside, and a reasonable belief that the person inside needed aid, justified a warrantless entry.  (People v. Coddington (2000) 23 Cal.4^th 529, 580.)

Exigent Circumstances, justifying a warrantless residential arrest, include an evaluation of the following circumstances:

§         The gravity of the offense;

§         Whether the suspect is reasonably believed to be armed;

§         Whether probable cause is clear;

§         Whether the suspect is likely to be found on the premises; and

§         The likelihood that the suspect will escape if not promptly arrested. 

(People v. Williams (1989) 48 Cal.3^rd 1112, 1138-1139.)

Already Lawfully Inside

Officers are already lawfully inside when probable cause develops. (People v. Ramey, supra; People v. Dyke (1990) 224 Cal.App.3^rd 648, 657-659, 661.)

Standing in the Threshold

Defendant is standing in the threshold: Case law has consistently held that an arrest without a warrant, either outside or even with the suspect standing in the threshold of his own home, is lawful. For example:

A warrantless arrest at the threshold of defendant's motel room, where defendant opened the door in response to the officers' knock and after having looked outside and seeing the officers standing at the door, is lawful.  Payton draws a "bright line" at the threshold.  So long as the officers did not misidentify themselves or use coercion to get defendant to open the door, and defendant acquiesced in the procedure, he is subject to a warrantless arrest.  The fact that defendant was physically inside the door is also irrelevant so long as the officers are outside at the time the arrest is made.  (United States v. Vaneaton (9^th Cir. 1995) 49 F.3^rd 1423, 1426-1427:  Where officers use no force, threats, or subterfuge, a suspect's decision to open the door exposes him to a public place, and the privacy interests protected by Payton are not violated.)

Defendant, standing in her doorway as officers approached, is in public.  Further, she may not defeat an arrest which has been set in motion by attempting to escape into a private place.  (United States v. Santana (1976) 427 U.S. 38 [49 L.Ed.2^nd 300].)

When the officer attempted to arrest defendant in the threshold of her apartment door, only to have her pull away and into the apartment, the officer may follow her in to complete the arrest he had set in motion on her doorstep.  (People v. Hampton (1985) 164 Cal.App.3^rd 27, 35-36.)

However, arresting defendant who was still in bed, even though he could (and did) reach the door and open it from his bed, was a violation of Payton.  It is irrelevant that the officer was still outside the residence when he pronounced defendant under arrest in that it is the defendant's location, and not the officer's, that is important.  (United States v. Quaempts (9^th Cir. May 31, 2005) 411 F.3^rd 1046.)

While Serving a Search Warrant

While already inside lawfully serving a search warrant. (People v. McCarter (1981) 117 Cal.App.3^rd 894, 908.)

A Parolee

A parolee (and, therefore, presumably, a probationer who is on search and seizure Fourth Amendment waiver conditions) may be arrested in his home without the necessity of a warrant. Police are authorized to enter a house without a warrant where the suspect is a parolee who had no legitimate expectation of privacy against warrantless arrests. (People v. Lewis (1999) 74 Cal.App.4^th 662, 665-673; In re Frank S. (2006) 142 Cal.App.4^th 145, 151.)

Inviting Defendant Outside

Inviting Defendant Outside: The defendant may even be "invited" outside, even though the officer's intent to arrest is not disclosed. When the defendant leaves the protection of his home, Ramey does not apply and the arrest outside is lawful. (People v. Tillery (1979) 99 Cal.App.3^rd 975, 979-980; People v. Green (1983) 146 Cal.App.3^rd 369, 377; People v. Jackson (1986) 187 Cal.App.3^rd 499, 505; Hart v. Parks (9^th Cir. 2006) 450 F.3^rd 1059, 1065.)

A suspect may be arrested without a warrant when he is in public. Case law tells us that anywhere, "whether it be the driveway, lawn, or front porch," which are "open to ‘common' or ‘general use'" by those wishing to contact the resident of a house, are "public places." (People v. Olson (1971) 18 Cal.App.3^rd 592, 598.)

See In re Danny H. (2002) 104 Cal.App.4^th 92, for a thorough discussion of the law on "public places" as it relates to the 24 separate statutes where such is an element.

And while it is illegal for a police officer to use a ruse to make a warrantless entry into a suspect's home, it has been held that it is not illegal to trick the suspect out. (People v. Rand (1972) 23 Cal.App.3^rd 579, 583.) For example:

Calling the suspect's house and falsely telling him the police are coming with a warrant, causing defendant, by his own choice, to attempt to flee his residence with the contraband, is lawful. There is no constitutional violation in arresting him when he comes outside. (Ibid.; People Porras (1979) 99 Cal.App.3^rd 874; but note this Court's invitation to the California Supreme Court to review the lawfulness of purposely evading Ramey in this manner (pp. 879-880) and the Supreme Court's refusal to do so by denying appellant's petition for a hearing.)

These cases, however, are when an officer has probable cause to arrest the suspect. Where there is no pre-existing probable cause, using a ruse to trick people outside during a narcotics investigation at an apartment complex, for the purpose of confronting as many people as they could lure outside (resulting in the defendant's illegal detention when he was surrounded by a team of officers all dressed in raid gear) is illegal. "A deception used to gain entry into a home and a ruse that lures a suspect out of a residence is a distinction without much difference. . . ." (People v. Reyes (2000) 83 Cal.App.4^th 7, 12-13.)

There is even some authority allowing a police officer to order the defendant out of his house, after which he is arrested. Ramey forbids warrantless entries only, and is not a relevant issue when the defendant is arrested in public, no matter how he came to be in public. (People v. Trudell (1985) 173 Cal.App.3^rd 1221, 1228-1230.)

However, it has been held that when officers are outside with guns drawn, ordering defendant to come out, he has in effect been arrested while in his house. Leaving the house under such coercive circumstances is not an exception to Ramey/Payton. (United States v. Al-Azzaway (9^th Cir. 1985) 784 F.2^nd 890, 893-895; Fisher v. City of San Jose (9^th Cir. 2007) 475 F.3^rd 1049, 1057-1058.)

En banc hearing granted on March 14, 2008, setting aside this decision pending further review.

Sufficiency of Evidence that the Suspect is Inside

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.

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 People 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.)

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.)

See "Necessity of Having Probable Cause," above.

Within a Third Person’s Home

Within a Third Person's Home:  Probable cause justifying an arrest warrant for one person does not authorize entry into to a third person's home to look for the subject of the arrest warrant.  To do so violates the privacy interests of the third party.  Therefore, a search warrant, based upon probable cause to believe the wanted subject is in fact in the home of the third party (absent exigent circumstances), is necessary.  (Steagald v. United States (1981) 451 U.S. 204 [68 L.Ed.2^nd 38]; People v. Codinha (1982) 138 Cal.App.3^rd 167; sometimes referred to as a "Steagald Warrant."  See also P.C. 1524(a)(6); legal authorization for obtaining such a search warrant.)

The arrestee, if doing no more than merely visiting the lawful resident, probably has no standing to contest the unlawful entry of another's house.  (United States v. Underwood (9^th Cir. 1983) 717 F.2^nd 482.)  It is when a police officer obtains evidence against the third party homeowner, while looking for the subject of the arrest, that Steagald becomes an issue.  The homeowner, in such a case, has standing to contest the warrantless entry of his house in defense at his own prosecution.  (Steagald v. United States, supra, at pp. 212, 216 [68 L.Ed.2^nd at pp. 45, 48].)

But, there is some authority that, as an overnight guest in another's apartment, defendant with an outstanding arrest warrant does have standing to contest the entry of the bedroom in which he is staying when done without a search warrant.  (People v. Hamilton (1985) 168 Cal.App.3^rd 1058.)

A frequent visitor, with free reign of the house despite the fact that he did not stay overnight, might also have standing to contest an allegedly illegal entry of a third person's home.  (People v. Stewart (2003) 113 Cal.App.4^th 242.)

Hamilton and Stewart have some support in Minnesota v. Olson (1990) 495 U.S. 91 [109 L.Ed.2^nd 85]; and People v. Tillery (1979) 99 Cal.App.3^rd 975, 978-979. 

The Ninth Circuit Court of Appeal has interpreted Peyton's "reason to believe" requirement (See also United States v. Underwood (9^th Cir. 1983) 717 F.2^nd 482.) as necessitating "probable cause" to believe a suspect is inside a third person's home before a non-consensual entry may be made.  (United States v. Gorman (9^th Cir. 2002) 314 F.3^rd 1105; attempt to serve an arrest warrant requires "probable cause" to believe the subject of the warrant is inside.)

The California Supreme Court is in apparent agreement.  (People v. Jacobs (1987) 43 Cal.3^rd 472, 478-478.)

Consequences of a Ramey/Payton Violations

Consequences of a Ramey/Payton Violation:

A warrantless arrest in the home, in violation of Payton v. New York, supra, and People v. Ramey, supra, does not invalidate a later statement made to police which was not "an exploitation of the illegal entry."  (New York v. Harris (1990) 495 U.S. 14 [109 L.Ed.2^nd 13]; People v. Watkins (1994) 26 Cal.App.4^th 19, 29-31; United States v. Manuel (9^th Cir. 1983) 706 F.2^nd 908, 911-912.)

See also People v. Marquez (1992) 1 Cal.4^th 553, 569; Harris rule applies to an arrest made with probable cause but in violation of the California Constitution and People v. Ramey, supra.

Even where Ramey and Payton are violated, so long as the police have probable cause to make the arrest, only evidence secured in the home is subject to suppression.  Defendant's arrest is not suppressed, nor are his statements later (after leaving the house) made to police as a product of that arrest.  (People v. Watkins, supra.)

Conducting an illegal parole search within a home where there exists probable cause to arrest the subject (even though he was only detained) will not cause the suppression of a confession obtained after the subject comes to the law enforcement officer's office where he is interrogated.  (United States v. Crawford (9^th Cir. 2004) 372 F.3^rd 1048, 1054-1059.)

Similarly, physical evidence recovered from the defendant's person upon searching him at the police station, should also be admissible.  (People v. Watkins, supra, at p. 31, fn. 8; citing out-of-state authority.)

This is supported by dicta in People v. Marquez, supra, at p. 569, where the Court noted that a Ramey violation, "would require suppression solely of evidence obtained from searching the home at the time of the arrest."

Note:  What this means is that should a court rule that Ramey/Payton has been violated, any oral or physical evidence seized from the defendant after removing him from the home will not be suppressed, being the product of a lawful arrest and not the product of the illegal entry into the residence.   In other words, don't question or search the individual until he has been removed from the home in any case where the entry is questionable.

But Note:  Earlier case authority has indicated that a Ramey violation is but one factor for the court to consider in determining whether the defendant's subsequent confession is a product of his free will.  (People v. Trudell (1985) 173 Cal.App.3^rd 1221, 1231-1232.)