I recently came across an interesting Fourth Circuit case dealing with a situation that is probably quite common: what sort of constitutional protection do people have when their living situation is not clear-cut?
According to Fourth Amendment case law, the police need an arrest warrant in order to arrest A at home (Payton v. New York, 1980), but no warrant is necessary to arrest A in public (U.S. v. Watson, 1976). But there is a third situation: what to do when A is in B’s home? Under Steagald v. United States (1981), an arrest warrant is necessary but not sufficient in this situation: the warrant protects A against unreasonable deprivations of freedom, but does not protect B against the invasion of their premises. So, to arrest A at B’s home, the police need to have two documents in hand: an arrest warrant for A and a search warrant for B’s home (with A listed as the person to be seized therein.)
This is all fine. But it turns out that some people’s situations do not map neatly unto this framework. Enter U.S. v. Brinkley (2020), a 4th Circuit case dealing with a not uncommon person with an outstanding warrant: the international man of mystery with a woman at every port.
Law enforcement agents formed a federal-state task force to execute an outstanding arrest warrant against Brinkley. ATF Agent Murphy received intelligence of two possible addresses for Brinkley, one on, let’s say, Oak Street, and one on, let’s say, Elm Street. Because the water bill for the Oak Street address was in Brinkley’s name, Agent Murphy initially believed that address was Brinkley’s most likely residence.
Detective Stark from the local police force looked on the state law enforcement database and found that Brinkley’s many traffic citations were associated with several addresses. The newest citations referenced the Elm Street address, and Detective Stark reasoned that the older addresses were “probably family addresses” where Brinkley did not reside. He looked up Brinkley’s Facebook page and found pictures of Brinkley’s girlfriend, Marnie, who was also associated with the Elm Street address. Based on this information, Detective Stark concluded that Brinkley and Marnie lived together on Elm Street.
Detective Stark reported his conclusion to Agent Murphy, who came to agree that Brinkley probably resided in the Elm Street apartment. Neither officer was certain that they had uncovered Brinkley’s address, and Agent Murphy later testified that, in his experience, it was “common for someone like Brinkley… to have more than one place where they will stay the night.”
The next morning, Agent Murphy and Detective Stark went to the Elm Street apartment to conduct what both Agent Murphy and Detective Stark characterized as a “knock-and-talk” to “start [their] search for Brinkley.” The officers intended to “interview the occupants to find out if [he] was indeed there,” and to arrest him if he was. Agent Murphy acknowledged that he “had no idea if Brinkley was going to be there that morning,” but thought the Stoney Trace apartment was the “most likely address” to “find Brinkley or evidence of his whereabouts.”
Detective Stark knocked and announced, and after a few minutes Marnie, wearing pajamas, slowly opened the door. The officers could hear movement in the background. Detective Stark informed Marnie that the officers were looking for Brinkley and asked to enter the apartment. Marnie denied that Brinkley was there, and according to Detective Stark, she grew “very nervous”; her “body tensed” and her “breathing quickened,” and she looked back over her shoulder into the apartment. Detective Stark asked for consent to search the apartment and Marnie said she did not consent and asked to see a search warrant.The entire exchange with Marnie lasted a few minutes. Both officers testified that, based on Marnie’s demeanor, the movement they heard in the apartment, and the morning hour, they believed Brinkley was inside.
At this point, the officers decided not to follow the original plan to secure the area and wait to see if Brinkley left the home. Instead, Agent Murphy told Marnie that he believed she was hiding Brinkley and that the officers were going to enter the apartment to serve an arrest warrant on him. They walked around the apartment, found Brinkley in the bedroom, and arrested him. The officers proceeded to conduct a protective sweep to check for others hiding in the apartment. They did not find anyone else, but they did find several firearms and seized them.
On appeal from a conditional guilty plea, Brinkley argued that he did not reside on Elm Street and was there as Marnie’s guest, and that the officers’ warrantless entry was unconstitutional.
The Fourth Circuit sets up the problem as if it is about classifying Brinkley’s situation as a Peyton or a Steagald scenario. But what they actually end up doing is asking two questions that differ from each other. The first one is: how certain do the cops have to be that Brinkley both resides, and is currently present, at Elm Street to walk in there without a warrant? The Fourth Circuit panel concludes that the cops would need to have more than they did in order to walk into the Elm Street address with only an arrest warrant.
But the second question has to do with a different set of concerns: for a guy like Brinkley, who has four or five cribs in town, and lives an unsettled life, where is home? Do you forego the special protection that the Fourth Amendment awards to the home if you have several places you call sort-of-home? Do you have standing in each of these places? What makes home home?