Basler: Letting the Exception Swallow the Rule

145

Letting the Exception Swallow the Rule: The SJC’s Missed Opportunity in

Commonwealth v. Tatum

CHARLES H. BASLER*

ABSTRACT

Under the Fourth Amendment to the Constitution of the United States of America and Article XIV of the Massachusetts Declaration of Rights, warrantless entry of a home is presumptively unreasonable. In two landmark cases, Payton v. New York and Steagald v. United States, the Supreme Court sought to enforce the Fourth Amendment’s warrant requirements for police entry of the home. While providing a solid foundation for Fourth Amendment jurisprudence, Payton and Steagald have left a gap for lower courts to fill. One unanswered question is whether the subject of an arrest warrant has the right to insist that police also obtain a search warrant before entering a third party’s residence to conduct the arrest. The Massachusetts Supreme Judicial Court recently addressed this question in Commonwealth v. Tatum and held that an arrest warrant alone is sufficient to protect the suspect’s Fourth Amendment and Article XIV rights. The SJC’s opinion extends Payton’s arrest warrant requirement, rather than Steagald’s stricter search warrant requirement, to cover the arrest of subjects both within their own home and in the home of another.

This Comment argues that the extension of Payton is inconsistent with existing Fourth Amendment and Article XIV jurisprudence and unnecessarily undermines the privacy and security of innocent third parties. Both the Supreme Court and the SJC have previously recognized an overnight guest’s expectation of privacy in the host’s home. This expectation of privacy is protected by the Fourth Amendment and Article XIV and provides the guest with standing to challenge a search of the

* Candidate for Juris Doctor, New England Law | Boston (2015). B.A., cum laude,

Philosophy and Political Science, Boston University (2006). I would like to thank my parents,

Frank and Carolyn, my brother, Frank, and my girlfriend, Sárah, for their continued support

and encouragement.

146 New England Law Review v. 49 | 145

residence. This Comment further argues that the SJC should have extended Steagald and allowed the defendant standing to challenge the validity of the search warrant while in the home of a third party. Because Payton offers no protection for those not named in the arrest warrant, Steagald’s search warrant requirement is the only means of ensuring that the rights of both the arrestee and the third party are adequately protected.

INTRODUCTION

ccording to John Adams, “one of the most essential branches of . . . liberty, is the freedom of one’s house. A man’s house is his castle.”1 Adams believed that the use of general warrants or writs of

assistance threatened to “totally annihilate this privilege.”2 It was with this sanctity of the home in mind that Adams drafted Article XIV of the Massachusetts Declaration of Rights.3 The inclusion of the word “unreasonable”4 was not only novel for its time, but was intended by Adams specifically to guard against the dangers of general warrants.5 The Fourth Amendment, being based upon Article XIV,6 shares this same language and purpose.7 Under this reasonableness requirement, a warrantless search of the home is presumptively illegal.8

Two landmark Supreme Court cases, Payton v. New York and Steagald v. United States, have sought to enforce this sentiment through their respective warrant requirements.9 While providing a solid foundation for Fourth Amendment jurisprudence, Payton and Steagald left a number of unanswered questions for lower courts to resolve.10 One of these questions—whether the subject of an arrest warrant has the right to insist upon a search warrant while in a third party’s residence—was recently addressed by the Massachusetts Supreme Judicial Court (“SJC”) in Commonwealth v. Tatum.11 The defendant was arrested in a third party’s home and sought to suppress evidence seized during a search, arguing that

1 2 LEGAL PAPERS OF JOHN ADAMS 142 (L. Kinvin Wroth & Hiller B. Zobel eds., Harvard

Univ. Press, 1965). 2 Id. 3 Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV. 547, 642–43,

685 (1999). 4 MASS. CONST. pt. I, art. XIV. 5 See Davies, supra note 3, at 685, 693. 6 Commonwealth v. Upton, 476 N.E.2d 548, 555 (Mass. 1985). 7 Payton v. New York, 445 U.S. 573, 583–85 (1980). 8 Coolidge v. New Hampshire, 403 U.S. 443, 477–78 (1971). 9 See infra Part I.B. 10 See infra Part I.C. 11 Commonwealth v. Tatum, 992 N.E.2d 987, 992 (Mass. 2013).

A

2014 The SJC’ s Missed Oppor tunity 147

the search warrant was obtained in violation of his rights under the Fourth Amendment and Article XIV.12 The defendant’s motion to suppress was denied, and he was convicted of drug trafficking and possession.13 The SJC affirmed the conviction, reasoning that Payton should apply to the subject of an arrest warrant in a third party’s home and, therefore, found that the defendant was without standing to challenge the validity of the search warrant.14

This Comment argues that the SJC was wrong to extend Payton to arrests within third-party residences. This extension of Payton is inconsistent with existing Fourth Amendment and Article XIV jurisprudence which grants the defendant a legitimate expectation of privacy in the third-party residence. The Court’s opinion also undermines the Steagald search warrant requirement and unnecessarily jeopardizes the constitutional rights of innocent third parties not named in the arrest warrant. Instead, the SJC should have extended Steagald and recognized the defendant’s standing to challenge the validity of the search warrant while in a third-party residence. This would have avoided the negative constitutional and practical consequences that will likely result from the unnecessary extension of the Payton doctrine.

Part I of this Comment examines the warrant requirements of the Fourth Amendment under Payton and Steagald and the resulting gap left by the Supreme Court’s analysis. Part II outlines the factual basis for Tatum and the SJC’s holding. Part III discusses the additional Fourth Amendment and Article XIV jurisprudence that should have been included in the SJC’s analysis. Part III also argues that the defendant had a constitutionally protected expectation of privacy as an overnight guest in the third-party residence, and therefore had standing to challenge the search warrant. Part III further argues that Payton is the limited exception to the search warrant requirement laid down in Steagald. Accordingly, the extension of Payton allows the exception to swallow the rule. Part IV argues that extending Payton unnecessarily undermines the security of innocent third parties.

12 Id. at 988. 13 Id. 14 See infra Part II.C.


I. Background

A. The Warrant Requirements of the Fourth Amendment and Article XIV

1. The Fourth Amendment

The Fourth Amendment protects individuals from unreasonable searches and seizures.15 The inclusion of both searches and seizures reflects the dual interests the Fourth Amendment is intended to protect—privacy and liberty.16 Consisting of two clauses, the Fourth Amendment protects individuals from unreasonable searches of their home or person and requires that warrants be based upon probable cause.17 The probable cause requirement is intended to prohibit the use of general warrants that do not specify the particular person or place to be searched.18 The “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”19 This is a basic Fourth Amendment principle.20 Therefore, absent exigent circumstances, the warrantless search of a home is presumptively unreasonable and therefore prohibited.21

Interestingly, this basic principle did not always apply to entry of the home to make an arrest.22 The Fourth Amendment was incorporated to the states by the Supreme Court in 1961.23 Yet, prior to 1980, the Supreme Court’s Fourth Amendment jurisprudence did not require police to have a warrant before making an in-home arrest.24 In fact, at the time Payton v. New York was decided, at least twenty-three states had statutes authorizing the warrantless arrest of a suspect within the suspect’s own home.25

15 U.S. CONST. amend. IV. 16 Peter J. Gordon, Comment, The Constitutionality of Warrantless Home Arrests, 78 COLUM. L.

REV. 1550, 1558–59 (1978). 17 Kristin S. McKeon, There’s No Place Like Home—Except When You Are Under Arrest: The

Third Circuit’s Analysis of Home Arrests in United States v. Veal, 52 VILL. L. REV. 1021, 1024

(2007). 18 Payton v. New York, 445 U.S. 573, 583 (1980); Davies, supra note 3, at 558. 19 United States v. U.S. Dist. Court, 407 U.S. 297, 313 (1972). 20 United States v. Karo, 468 U.S. 705, 714 (1984). 21 Coolidge v. New Hampshire, 403 U.S. 443, 477–78 (1971). 22 Sarah L. Klevit, Note, Entry to Arrest a Suspect in a Third Party’s Home: Ninth Circuit Opens

the Door, 59 WASH. L. REV. 965, 966 (1984). 23 Mapp v. Ohio, 367 U.S. 643, 655 (1961). 24 Klevit, supra note 22, at 966; see, e.g., United States v. Santana, 427 U.S. 38, 45 (1976)

(Marshall, J., dissenting) (“The Court declines today to settle the oft-reserved question of

whether and under what circumstances a police officer may enter the home of a suspect in

order to make a warrantless arrest.”). 25 Klevit, supra note 22, at 966 n.8.


2. Article XIV

Article XIV of the Massachusetts Declaration of Rights provides that every individual has “a right to be secure from all unreasonable searches, and seizures.”26 The similarity in language to the Fourth Amendment is no coincidence—Article XIV preceded and provided the basis for the language of the Fourth Amendment.27 This common ancestry means that Article XIV was also intended to prohibit the use of general warrants28 by requiring that searches and seizures be supported by probable cause.29 Despite the clear similarities in language and purpose, the SJC has not hesitated to find greater protections under Article XIV than the Supreme Court has found under the Fourth Amendment.30

B. Home Arrests Under Payton v. New York and Steagald v. United States

1. Payton v. New York

In 1980, the Supreme Court addressed whether and under what circumstances police may enter a suspect’s home to make an arrest.31 New York police sought Theodore Payton for the murder of a gas station employee.32 Police arrived at Payton’s home with the intention of placing him under arrest.33 After knocking on the door and receiving no response, the police forcefully entered Payton’s residence.34 While inside, detectives found a shell casing that was seized and later used as evidence against Payton at trial.35 The police obtained no warrant prior to their entry, either for Payton’s arrest or to search his home, and instead relied on a state statute that allowed a police officer to enter a building without a warrant

26 MASS. CONST. pt. I, art. XIV. 27 Commonwealth v. Upton, 476 N.E.2d 548, 555 (Mass. 1985); Herbert P. Wilkins, The

Massachusetts Constitution—The Last Thirty Years, 44 SUFFOLK U. L. REV. 331, 337 (2011). 28 See Jenkins v. Chief Justice of the Dist. Court Dep’t, 619 N.E.2d 324, 330 (Mass. 1993);

Joseph A. Grasso, “John Adams Made Me Do It”: Judicial Federalism, Judicial Chauvinism, and

Article 14 of Massachusetts’ Declaration of Rights, 77 MISS. L.J. 315, 319 (2007). 29 Commonwealth v. Rodriguez, 722 N.E.2d 429, 431 (Mass. 2000). 30 Jacki Ann Smith, Comment, Be Careful What You Say, Massachusetts . . . No Reasonable

Expectation of Privacy Recognized in Telephone Conversations: Commonwealth v. Eason, 34 NEW

ENG. L. REV. 657, 670–71 (2000); see Wilkins, supra note 27. 31 Payton v. New York, 445 U.S. 573, 574–75 (1980). 32 Joseph D. Harbaugh & Nancy Lesse Faust, “Knock on Any Door”—Home Arrests After

Payton and Steagald, 86 DICK. L. REV. 191, 196 (1982). 33 Payton, 445 U.S. at 576; Harbaugh & Faust, supra note 32, at 966. 34 Harbaugh & Faust, supra note 32, at 196. 35 Payton, 445 U.S. at 576–77.


for the purpose of making a felony arrest.36 Payton was unsuccessful in suppressing the evidence obtained during the warrantless search and his conviction was affirmed by the appellate court.37

In its landmark decision, the Supreme Court held that, absent exigent circumstances, the warrantless entry into a suspect’s home violates the Fourth Amendment regardless of whether that entry is to conduct a search or make an arrest.38 The Payton Court found that any differences between entering the home to search or make an arrest are “merely ones of degree rather than kind.”39 Both events involve the unconsented entry of the home—the place where an individual’s privacy interest is most clearly defined.40 The Court read the language of the Fourth Amendment as applying equally to property and people.41 As a result, the Court stated that “a firm line” has been drawn at the door to the home.42

In its analysis, the Court noted that a search warrant requirement would likely provide greater constitutional protection than an arrest warrant.43 However, the Court reasoned that because an arrest warrant is issued upon probable cause, “it will suffice to interpose the magistrate’s determination of probable cause between the zealous officer and the citizen.”44 The Court then held that, under the Fourth Amendment, police may lawfully enter a suspect’s home if they possess a valid arrest warrant and have a reasonable belief that the suspect is at home.45 Importantly, the Payton Court clearly indicated that its decision only addressed entry into the suspect’s own home to make an arrest and not the home of a third party.46

2. Steagald v. United States

The question left open by Payton did not go unanswered for long; the Supreme Court took up the issue of arrests in third-party residences the

36 Id. at 576–77 & n.6; Gordon, supra note 16, at 1556. 37 Harbaugh & Faust, supra note 32, at 197. 38 Payton, 445 U.S. at 576; Edward G. Mascolo, Arrest Warrants and Search Warrants in the

Home: Payton v. New York Revisited and Modified Under State Constitutional Law, 66 CONN. B.J.

333, 344 (1992). 39 Payton, 445 U.S. at 589. 40 Id. 41 Harbaugh & Faust, supra note 32, at 199. 42 Payton, 445 U.S. at 590. 43 Klevit, supra note 22, at 967. 44 Payton, 445 U.S. at 602. 45 Id. at 603; Klevit, supra note 22, at 967. 46 Payton, 445 U.S. at 583.


following term.47 In 1978, Gary Steagald was arrested and indicted on drug charges following the search of his home by the Drug Enforcement Administration (“DEA”).48 The DEA arrived at Steagald’s home with an arrest warrant for an individual thought to be at Steagald’s address.49 Agents subsequently searched Steagald’s home for the suspect and found cocaine within the residence.50 Agents conducted two more searches, only one under a valid search warrant, and found a larger quantity of cocaine.51 At trial, Steagald’s motion to suppress the evidence found without a search warrant was denied.52

In Steagald, the Supreme Court addressed whether an arrest warrant is sufficient to protect the interests of third parties whose homes are searched when those third parties are not named in the arrest warrant.53 The Court expressly affirmed Payton’s central thesis—that warrantless entry of the home is presumptively unreasonable.54 The Court then held that an arrest warrant alone is not sufficient; third parties have the right to insist upon a valid search warrant before police can enter their home to search for a suspect.55 The Court reasoned that search warrants and arrest warrants protect different interests.56 An arrest warrant is intended to protect the individual’s liberty interest in being free from an unreasonable seizure, while a search warrant is intended to protect the individual’s privacy interest in his home and possessions.57 Due to this distinction, the Court found that while the arrest warrant was sufficient to protect the suspect’s liberty interest “it did absolutely nothing to protect [the third party’s] privacy interest.”58

The Steagald Court expressed concern for the potential abuses that could result from allowing police to use arrest warrants to search the

47 See Mathew A. Edwards, Posner’s Pragmatism and Payton Home Arrests, 77 WASH. L. REV.

299, 334 (2002). 48 Steagald v. United States, 451 U.S. 204, 206–07 (1981). 49 The Supreme Court, 1980 Term (pt. G.2), 95 HARV. L. REV. 262, 263 (1981) [hereinafter

Searches in Third Party Homes]. 50 Matthew Frank, Comment, A Guest’s Legitimate Expectation of Privacy: A Case Analysis of

Minnesota v. Olson, 110 S. Ct. 1684 (1990), 14 HAMLINE L. REV. 231, 245 (1990). 51 Steagald, 451 U.S. at 206–07. 52 Id. at 207; Frank, supra note 50, at 245. 53 Frank, supra note 50, at 246. 54 Steagald, 451 U.S. at 211; Michael Verde, The Unwarranted Choice: Arrest Warrants and

Problems Inherent in the Payton Doctrine, 32 N.Y.L. SCH. L. REV. 169, 177 (1987). 55 Steagald, 451 U.S. at 216. 56 Searches in Third Party Homes, supra note 49, at 264. 57 Id. 58 Steagald, 451 U.S. at 213.


homes of third parties.59 Only by requiring a search warrant could both the liberty interests of the suspect and the privacy interests of the third party be sufficiently protected.60 Taken together, Payton and Steagald outline the constitutional requirements for police entry of the home to make an arrest and are intended to protect both the liberty interest of the arrestee and the privacy interest of the third party.61

C. Arrest Warrants and Search Warrants Post Payton and Steagald

The Supreme Court left a number of important questions unanswered in Payton and Steagald, such as what protections are due to a suspect’s co-habitants and what standards police must meet when determining where a suspect resides.62 As a result, lower courts are given a choice as to which precedent applies, Payton or Steagald, when these questions arise.63 With a search warrant required to enter a third party’s residence and only an arrest warrant required to enter the suspect’s residence, the Supreme Court did not explore whether the subject of an arrest warrant can insist upon a search warrant when in a third-party residence.64 The majority of courts addressing this issue have concluded that Payton applies and the subject of an arrest warrant has no right to insist upon a search warrant outside his own home.65 Courts usually make these determinations based on the arrestee’s lack of standing.66

59 Id. at 215 (citing as an example the search of 300 homes by police under arrest warrants

issued for two individuals); Mascolo, supra note 38, at 337. 60 Steagald, 451 U.S. at 216. 61 Klevit, supra note 22, at 969. 62 Edwards, supra note 47, at 334; see, e.g., United States v. Litteral, 910 F.2d 547, 553 (9th

Cir. 1990) (applying Payton rather than Steagald to a suspect’s cohabitants). 63 Mascolo, supra note 38, at 344; see, e.g., United States v. Buckner, 717 F.2d 297, 299 (6th

Cir. 1983) (stating that Payton and Steagald framed the court’s analysis, but neither applied to

the facts at hand); United States v. Robertson, 833 F.2d 777, 780 (9th Cir. 1987) (applying

Payton rather than Steagald when determining that a co-resident could not insist upon a search

warrant). 64 6 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT §

11.3(b) (5th ed. 2012); see Commonwealth v. Tatum, 992 N.E.2d 987, 988 (Mass. 2013). 65 Federal courts almost universally extend Payton. United States v. Jackson, 576 F.3d 465,

468 (7th Cir. 2009); Tatum, 992 N.E.2d at 992. Conversely, at least one state court has conferred

standing under its state constitution. State v. Cleveland, 852 A.2d 1150, 1156 (N.J. Super. Ct.

App. Div. 2004). 66 See Jackson, 576 F.3d at 467–68 (finding Steagald’s search warrant requirement applicable

only to third-party residents); United States v. Agnew, 407 F.3d 193, 196 (3rd Cir. 2005)

(finding the suspect lacked standing because Steagald protected only the third-party resident);

United States v. Underwood, 717 F.2d 482, 484 (9th Cir. 1983) (finding that Steagald’s search

warrant requirement “is personal to the homeowner and cannot be asserted vicariously by the

person named in the arrest warrant”); State v. O’Dell, 576 A.2d 425, 427 (R.I. 1990) (finding the


II. Commonwealth v. Tatum

A. Facts

Police sought the defendant, Justin Tatum (“Tatum”), pursuant to three active arrest warrants.67 A confidential informant told police that Tatum was staying at a third party’s residence.68 A Massachusetts State Police officer disguised as a utility worker entered the property to determine whether Tatum was inside.69 The officer did not obtain a search warrant before entering the property.70 Police applied for a no-knock search warrant after determining that Tatum was inside.71 According to Tatum, the affidavit offered in support of the no-knock warrant omitted the fact that the officer entered the property without a warrant in order to confirm Tatum’s presence.72 The following day the police executed the search warrant and arrested Tatum in the basement of the residence.73 During the arrest, police found drugs and money in plain view and subsequently applied for a second search warrant.74 The second search turned up cash and large quantities of drugs, and both Tatum and the third party were charged with drug trafficking and possession with intent to distribute.75

B. Procedural History

Tatum and the third-party resident were initially tried together, but the jury was unable to return a verdict, resulting in a mistrial.76 Tatum then moved to sever and a second trial was conducted.77 At trial, Tatum sought to suppress evidence obtained under the second search warrant by arguing that the initial no-knock warrant was invalid.78 Tatum argued that because the officer trespassed on the third party’s property, the first warrant was

defendant has no standing to assert Steagald’s protections); 3 LAFAVE, supra note 64, at § 6.1(b). 67 Tatum, 992 N.E.2d at 988. 68 Id. at 990. 69 Brief and Record Appendix for the Defendant-Appellant at 4, Tatum, 992 N.E.2d 987 (No.

SJC-11167), 2010 WL 3415228, at *4 [hereinafter Brief for the Defendant]. 70 Tatum, 992 N.E.2d at 995 (Lenk, J., dissenting). 71 Id. 72 Brief for the Defendant, supra note 69, at 11–12. 73 Robert Williams, Commonwealth v. Tatum, 48 NEW ENG. L. REV. MASS. CRIM. DIG. 15–16

(2013). 74 Id. at 16; Tatum, 992 N.E.2d at 989. 75 Tatum, 992 N.E.2d at 989; Williams, supra note 73, at 16. 76 Brief for the Commonwealth at 3, Tatum, 992 N.E.2d 987 (No. SJC-11167), 2011 WL

2531001, at *2 [hereinafter Brief for the Commonwealth]. 77 Tatum, 992 N.E.2d at 989. 78 Id.


obtained in violation of his rights under the Fourth Amendment and Article XIV.79 The trial judge denied the motion to suppress and Tatum was convicted on both counts.80 Tatum appealed the trial judge’s denial of his motion to suppress and the appellate court affirmed without oral argument.81 The SJC granted Tatum’s petition for further review.82

C. The SJC’s Holding

The SJC determined that the issue on appeal was whether Tatum, as the subject of an arrest warrant, could challenge the validity of a search warrant for a third party’s residence.83 While recognizing that there was no Supreme Court precedent on the narrow question before it, the SJC reasoned that Payton and Steagald provided the foundation for its review.84 The SJC held that Payton applied to an arrestee, both in his own home and in the home of another, and that only an arrest warrant is needed to protect the arrestee’s Fourth Amendment and Article XIV rights.85 Accordingly, Tatum had no right to insist upon a search warrant and, therefore, was in no position to challenge its validity.86 Without standing to challenge the search warrant, Tatum’s motion to suppress the evidence was properly denied.87 The third party may have been in a position to argue that the officer’s trespass invalidated the search warrant, but Tatum was not.88

The Court found that the additional search warrant requirement under Steagald extended only to the third-party resident and not to the arrestee.89 Because Payton requires only that police obtain an arrest warrant before entering a suspect’s own home, the Court reasoned that Tatum was not entitled to any greater protections elsewhere.90 The Court also reasoned that to extend Steagald and require a search warrant “would produce an

79 U.S. CONST. amend. IV; MASS. CONST. pt. I, art. XIV; Tatum, 992 N.E.2d at 990. 80 Brief for the Commonwealth, supra note 76, at 4. 81 Tatum, 992 N.E.2d at 988. 82 Id. 83 Id. at 992. 84 Id. at 991–92. 85 Id. at 992. 86 See Williams, supra note 73, at 17 (discussing the Court’s holding). 87 See id. at 17–18 (“Because the defendant could not assert that the warrant violated the

Fourth Amendment and art. 14, requiring suppression of all items seized pursuant to the

ensuing searches, the judgments were affirmed.”). 88 Tatum, 992 N.E.2d at 993–94 n.17. 89 Id. at 992. 90 Id. at 992–94.


unacceptable paradox” by providing Tatum with greater protections in another’s home than he would otherwise receive in his own.91

D. The Dissent

Three Justices dissented, arguing that Steagald rather than Payton should be extended to apply to suspects arrested within a third party’s home.92 The dissent argued that the majority’s opinion unnecessarily jeopardized the rights of third-party residents.93 The dissent was troubled by the likely unconstitutional means used to obtain the initial search warrant and believed that under the majority’s holding no suspect could challenge such a warrant unless the third-party resident was charged with a crime.94 In these situations, “unless the third-party householder is himself arrested . . . there will be no consequence if police have not secured the requisite valid search warrant before entering that house.”95 According to the dissent, improperly obtained evidence would be admitted at trial and misconduct will not be deterred if police “have little if any incentive to obtain a search warrant before entering the third party’s house.”96

In addition, the dissent accused the majority of failing to account for additional Fourth Amendment precedent that should have been included in the analysis.97 The dissent cited Minnesota v. Olson and Minnesota v. Carter, which both held that an overnight guest in a third party’s residence has a legitimate expectation of privacy protected by the Fourth Amendment.98 The dissent pointed out that the overnight guest in Olson had the right to insist upon a search warrant prior to police entry.99 Because neither Payton nor Steagald addressed this issue, the dissent argued that the majority’s conclusion was not required and, by undermining the security of the guest, the majority was also jeopardizing the security of the third-party resident.100

91 Id. at 993 (quoting Commonwealth v. Allen, 554 N.E.2d 854, 858 (Mass. App. Ct. 1990)). 92 Id. at 995, 998–99 (Lenk, J., dissenting). 93 See id. at 998. 94 Tatum, 992 N.E.2d at 996 (Lenk, J., dissenting). 95 Id. 96 Williams, supra note 73, at 18 (quoting Tatum, 992 N.E.2d at 996–97 (Lenk, J., dissenting)). 97 Tatum, 992 N.E.2d at 998 (Lenk, J., dissenting). 98 Id. 99 Id.; see Minnesota v. Olson, 495 U.S. 91, 98–99 (1990). 100 Tatum, 992 N.E.2d at 997–99 (Lenk, J., dissenting) (citing Minnesota v. Carter, 525 U.S. 83

(1998) (Ginsburg, J. dissent)).


ANALYSIS

III. The SJC’s Extension of Payton Is Inconsistent with Additional Fourth Amendment and Article XIV Jurisprudence

A. The Court Viewed Payton in an Inappropriate Context

The SJC was wrong to extend Payton without considering additional Fourth Amendment and Article XIV jurisprudence bearing directly on the rights of the defendant as an overnight guest in a third party’s residence.101 Since Payton was decided, there have been developments in the Supreme Court’s Fourth Amendment analysis that the SJC improperly ignored.102 These developments have been largely mirrored in comparable SJC decisions construing the Massachusetts Declaration of Rights.103 Had the SJC properly taken this additional jurisprudence into consideration, it would have understood that Payton is the limited exception to the more general rule set down in Steagald.104 Instead, the SJC extended Payton beyond its intended reach and allowed the exception to swallow the rule.105

1. The SJC Overlooked Expectations of Privacy Under Olson and Carter

According to the Supreme Court, it is an “unremarkable proposition” that individuals have protected privacy interests beyond the confines of their own homes.106 One need not have any property rights in a given location in order to assert Fourth Amendment protections.107 Instead, an expectation of privacy is legitimate if it is “one that society is prepared to recognize as ‘reasonable.’”108 In Minnesota v. Olson, ten years after Payton,

101 See id. at 998. 102 See Olson, 495 U.S. at 98–99 (holding that an overnight guest has a legitimate expectation

of privacy protected by the Fourth Amendment); Minnesota v. Carter, 525 U.S. 83, 90 (1998)

(contrasting overnight guests with those “merely present with the consent” of the resident). 103 See Commonwealth v. Morrison, 710 N.E.2d 584, 586 (Mass. 1999) (holding that an

overnight guest has a legitimate expectation of privacy protected by the Fourth Amendment

and Article XIV); see also Commonwealth v. Lopez, 937 N.E.2d 949, 954–55 (Mass. 2010)

(recognizing an individual’s legitimate expectation of privacy in a rented motel room). 104 See United States v. Underwood, 717 F.2d 482, 488 (9th Cir. 1983) (Skopil, J., dissenting)

(“Both Payton and Steagald expressly limit, again and again, the Payton rule to an arrest entry

of one’s own home.”); see also Klevit, supra note 22, at 973–74. 105 See Frank, supra note 50, at 253–54 (characterizing Payton as the exception). 106 Rakas v. Illinois, 439 U.S. 128, 142 (1978). 107 Id. at 143. 108 Id. at 152 (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring))

(internal quotation marks omitted).


the Supreme Court recognized an overnight guest’s legitimate expectation of privacy in the host’s home.109 This expectation of privacy is protected by the Fourth Amendment and gives the overnight guest standing to challenge a search of the host’s residence.110 Because Fourth Amendment rights are personal and cannot be asserted vicariously, Olson allows guests to mount challenges to perceived Fourth Amendment violations separate and distinct from any challenges that the host may bring.111

In 1998, the Supreme Court further defined a guest’s expectation of privacy in Minnesota v. Carter.112 In Carter, the Court expressly affirmed the central holding of Olson by distinguishing individuals who were briefly in a host’s apartment for commercial purposes from overnight guests.113 Arguably, Olson and Carter offer a bright-line rule that overnight guests are entitled to assert Fourth Amendment claims relative to the search of the host’s residence.114 This precedent is directly applicable to Tatum because the defendant was an overnight guest at the time of his arrest.115 Under Supreme Court precedent, he had a constitutionally protected expectation of privacy in the third-party residence.116 Despite the importance and clear relevance of Olson and Carter, they were neither discussed nor cited by the Tatum majority.117

109 Minnesota v. Olson, 495 U.S. 91, 98 (1990) (“Staying overnight in another’s home is a

longstanding social custom that serves functions recognized as valuable by society.”). 110 See Scott Bales, Make Yourself at Home: Guests and the Fourth Amendment, ARIZ. ATT’Y, July

1999, at 28, 30 (discussing a hypothetical under Olson where an overnight guest has standing

to challenge the legality of a search of the host’s apartment). 111 See id. at 29; 6 LAFAVE, supra note 64, at § 11.3(b). 112 See Edwin J. Butterfoss, Be My Guest: The Hidden Holding of Minnesota v. Carter, 22

HAMLINE L. REV. 501, 502 (1999) (“Carter is the second case . . . in which the United States

Supreme Court has addressed the issue of the expectations of privacy held by a visitor . . . .”). 113 Minnesota v. Carter, 525 U.S. 83, 90 (1998) (“Thus, an overnight guest in a home may

claim the protection of the Fourth Amendment, but one who is merely present with the

consent of the householder may not.”); see United States v. Gamez-Orduno, 235 F.3d 453, 460

(9th Cir. 2000) (stating that the Court’s holding in Carter did not undermine Olson). 114 Olson, 495 U.S. at 96–97 (“Olson's status as an overnight guest is alone enough to show

that he had an expectation of privacy in the home . . . .”) (emphasis added); Butterfoss, supra

note 112, at 529; Bales, supra note 110. 115 Commonwealth v. Tatum, 992 N.E.2d 987, 995 n.1 (Mass. 2013) (Lenk, J., dissenting). 116 See Olson, 495 U.S. at 96–97. The defendant in Olson had a legitimate expectation of

privacy due solely to his status as an overnight guest. Id. Tatum, likewise, was an overnight

guest and this status alone must afford him the same protection. See Tatum, 992 N.E.2d at 998–

99 (Lenk, J., dissenting); see also Commonwealth v. Morrison, 710 N.E.2d 584, 586 (Mass. 1999). 117 See Tatum, 992 N.E.2d at 991–94 (discussing the defendant’s lack of standing without

considering his status as an overnight guest).


2. The Court Overlooked Massachusetts Precedent that Provides Individuals with Expectations of Privacy Outside the Home

Beyond Supreme Court precedent, the SJC overlooked precedent of its own.118 Article XIV, like the Fourth Amendment, protects individuals from unreasonable searches and seizures.119 In some cases, the SJC has reached the same or similar conclusions as the Supreme Court, often citing to both the Fourth Amendment and Article XIV as the basis for its decisions.120 The SJC should have recognized the defendant’s expectation of privacy as an overnight guest in Tatum, a result reached not only by the Supreme Court in Olson but by the SJC in its own prior decisions.121

In Commonwealth v. Morrison, the SJC held that an overnight guest may have a legitimate expectation of privacy while in a third party’s residence.122 The SJC cited and discussed Olson, although its holding recognized the expectation of privacy under Article XIV, as well as the Fourth Amendment.123 The SJC has also recognized an individual’s legitimate expectation of privacy in a rented motel room.124 In Commonwealth v. Lopez, the SJC held that the defendant’s motel room was analogous to his home for Fourth Amendment and Article XIV purposes.125 Similarly, in Commonwealth v. Porter the SJC recognized a juvenile’s legitimate expectation of privacy in a room within a shelter.126 The Porter Court cited Olson in support of its holding and reasoned that “[w]hile . . . the shelter residents in this case surrendered a substantial amount of personal privacy in return for temporary housing” this did not eliminate

118 See, e.g., Morrison, 710 N.E.2d at 586 (holding that Article XIV protects an overnight

guest’s expectation of privacy). 119 See MASS. CONST. pt. I, art. XIV; Wilkins, supra note 27, at 337. 120 Compare United States v. Jones, 132 S. Ct. 945, 949 (2012) (warrantless GPS tracking), and

Olson, 495 U.S. at 98–99 (overnight guests have a legitimate expectation of privacy), with

Commonwealth v. Rousseau, 990 N.E.2d 543, 552–53 (Mass. 2013) (warrantless GPS tracking),

and Morrison, 710 N.E.2d at 586 (overnight guests have a legitimate expectation of privacy). 121 See Tatum, 992 N.E.2d at 998 (Lenk, J., dissenting) (stating that the majority overlooked

additional precedent); Olson, 495 U.S. at 98–99 (finding overnight guests to have a legitimate

expectation of privacy under the Fourth Amendment); Morrison, 710 N.E.2d at 586 (finding

overnight guests have an expectation of privacy under the Fourth Amendment and Article

XIV). 122 Morrison, 710 N.E.2d at 586. However, the particular defendant in Morrison did not have

a privacy interest because he was present in violation of a protective order. Id. 123 See id. 124 Commonwealth v. Lopez, 937 N.E.2d 949, 954 (Mass. 2010). 125 Id. at 954–55. But see Commonwealth v. Molina, 948 N.E.2d 402, 408 (Mass. 2011) (stating

that a motel guest’s expectation of privacy terminates upon checkout). 126 Commonwealth v. Porter, 923 N.E.2d 36, 44–45 (Mass. 2010).


their expectation of privacy under Article XIV and the Fourth Amendment.127

While these cases are by no means exhaustive of the SJC’s analysis, it is clear that Massachusetts courts recognize the individual’s expectation of privacy outside the home,128 particularly in locations where the individual stays overnight.129 As with the Supreme Court opinions discussed above, this line of analysis is relevant because Tatum was an overnight guest in the third party’s home130 and, therefore, he had an expectation of privacy protected by Article XIV.131 Despite this relevance, the Tatum majority failed to conduct any meaningful analysis on this issue and relegated any mention of overnight guests to a footnote.132

3. As an Overnight Guest, Tatum Had Standing to Challenge the Initial Warrantless Search of the Property

Individuals are free from unreasonable searches and seizures under both the Fourth Amendment and Article XIV, not only in their own homes but also in the homes of others.133 The analyses in Steagald and Olson support the conclusion that a guest with a legitimate expectation of privacy has standing to challenge the reasonableness of a search of a third-party residence.134 This conclusion is also supported by SJC decisions such as Morrison and Lopez.135 As an overnight guest, Tatum had an expectation of privacy protected by both the Fourth Amendment and Article XIV.136 Prior

127 Id. at 45 & n.6. 128 See, e.g., Commonwealth v. Connolly, 913 N.E.2d 356, 376 (Mass. 2009) (in automobiles);

Commonwealth v. Martinez, 716 N.E.2d 1039, 1042 (Mass. App. Ct. 1999) (motel room);

Commonwealth v. Lee, 585 N.E.2d 759, 761 (Mass. App. Ct. 1992) (in a supermarket

basement). 129 See Lopez, 937 N.E.2d at 954–55 (motel room); Porter, 923 N.E.2d at 44–45 (homeless

shelter). But see Commonwealth v. Mallory, 775 N.E.2d 764, 768–69 (Mass. App. Ct. 2002)

(finding that any expectation of privacy was lost when the defendant abandoned the room in

which he had been staying). 130 Commonwealth v. Tatum, 992 N.E.2d 987, 995 n.1 (Mass. 2013) (Lenk, J., dissenting). 131 See Commonwealth v. Morrison, 710 N.E.2d 584, 586 (Mass. 1999) (“An overnight guest .

. . has standing to raise privacy claims in respect to a search of that occupant's premises.”). 132 See Tatum, 992 N.E.2d at 994 n.15. The majority stated that “[a] person with a less

extensive connection to the residence, e.g., an overnight guest . . . would likely be in a position

to challenge the validity of the search warrant.” Id. However, the majority opinion never

connected this statement with Tatum’s status as an overnight guest and instead found that

because he did not live at the residence, he was not entitled to standing. Id. at 994. 133 See Minnesota v. Olson, 495 U.S. 91, 98 (1990); Morrison, 710 N.E.2d at 586. 134 6 LAFAVE, supra note 64, at § 11.3(b). 135 See supra notes 122, 125 and accompanying text. 136 See Olson, 495 U.S. at 98; Morrison, 710 N.E.2d at 586.


to police obtaining a warrant to search the third-party residence, an officer disguised as a utility worker likely trespassed on the property.137 The majority itself stated that, in addition to the third-party resident, “[a] person with a less extensive connection to the residence, e.g., an overnight guest . . . would likely be in a position to challenge the validity of the search warrant.”138 According to the majority’s reasoning, Tatum lacked standing to challenge this warrantless search because he did not live at the residence and was the subject of an arrest warrant.139 This conclusion was reached without regard for his status as an overnight guest.140 As discussed above, Tatum was an overnight guest and should have had standing to challenge the search of the third-party residence.141

B. A Better View: Payton Is the Exception to the Steagald Rule

The Tatum majority expressed concern that extending Steagald and allowing the defendant to challenge the search warrant would result in an “unacceptable paradox.”142 This supposed paradox would provide Tatum with standing to object to the lack of a search warrant for the third-party residence when he would not have that same standing in his own home.143 A number of courts have shared this same concern.144 However, there only appears to be a paradox when the issue is examined exclusively through Payton-tinted lenses.145 When additional Fourth Amendment analysis is included, a different picture emerges—one where Payton is a limited exception to the search warrant requirement.146 This view is also supported

137 Brief for the Defendant, supra note 69, at 4. 138 Commonwealth v. Tatum, 992 N.E.2d 987, 994 n.15 (Mass. 2013). 139 See id. at 994 (“But the defendant, who was the subject of the arrest warrants; who,

according to the record, did not reside at the third party’s residence; and who consistently has

sought to challenge any suggestion that he did . . . is not in a position to advance such a

claim.”) (footnotes omitted). But see Olson, 495 U.S. at 98; Morrison, 710 N.E.2d at 586. 140 See Tatum, 992 N.E.2d at 994. 141 See Tatum, 992 N.E.2d at 998–99 (Lenk, J., dissenting); Olson, 495 U.S. at 98; Morrison, 710

N.E.2d at 586; see also supra notes 115–116, 130–131 and accompanying text. 142 Tatum, 992 N.E.2d at 993 (quoting Commonwealth v. Allen, 554 N.E.2d 854, 858 (Mass.

App. Ct. 1990)). 143 Id.; see also Allen, 554 N.E.2d at 858 (discussing the same “paradox”). 144 See United States v. Jackson, 576 F.3d 465, 468 (7th Cir. 2009); United States v. Agnew,

407 F.3d 193, 196–97 (3rd Cir. 2005); United States v. Underwood, 717 F.2d 482, 484 (9th Cir.

1983); Allen, 554 N.E.2d at 858. 145 See Underwood, 717 F.2d at 490 (Skopil, J., dissenting); Tatum, 992 N.E.2d at 998 (Lenk, J.,

dissenting) (stating that the majority fails to include relevant jurisprudence in its analysis). 146 Klevit, supra note 22, at 973–74; see also Underwood, 717 F.2d at 488 (Skopil, J., dissenting).


by a closer reading of Payton and Steagald than the majority was willing to undertake.147

1. The SJC Extended Payton Beyond its Intended Reach

The majority’s reasoning overlooks an important but crucial detail: the initial warrantless search of the third-party residence is not within the limited authority given to law enforcement under Payton.148 The Payton exception applies only when the subject of the arrest warrant is found at his home.149 This is evident in the language employed by the Payton Court: “[A]n arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives.”150 The Payton Court did not explain why an arrest warrant grants this limited authority.151 The lack of any further explanation on this point may explain some of the “paradox” concerns raised by lower courts.152 However, the Supreme Court’s discussion of arrest warrants and search warrants in Steagald helps to clarify Payton as the exception.153

In Steagald, the Supreme Court made an important distinction between arrest warrants and search warrants.154 An arrest warrant is issued upon a showing that there is probable cause to believe an individual has committed a crime.155 A search warrant is issued upon showing there is probable cause to believe that the object of a search is located in a specific place.156 Importantly, the same search warrant requirements apply when the object of the search is a person rather than a thing.157 The Steagald Court stated:

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

147 See Underwood, 717 F.2d at 488 (Skopil, J., dissenting) (comparing the language used by

the Supreme Court in Payton and Steagald). 148 See Klevit, supra note 22, at 973–74 (“In Payton, the Court expressly limited its holding to

entries into a suspect’s own home to effect his arrest.”). 149 See id.; Frank, supra note 50, at 253 (“It must be remembered that Payton is a strict

exception to the warrant requirement.”). 150 Payton v. New York, 445 U.S. 573, 603 (1980) (emphasis added). 151 Verde, supra note 54, at 173–74; Mascolo, supra note 38, at 335. 152 See Mascolo, supra note 38, at 335–36 (arguing that the “incomplete treatment on this

issue” has led to confusion among lower courts); Verde, supra note 54, at 173–74. 153 See United States v. Underwood, 717 F.2d 482, 488 (9th Cir. 1983) (Skopil, J., dissenting)

(comparing the language used by the Supreme Court in Payton and Steagald). 154 Steagald v. United States, 451 U.S. 204, 212–13 (1981); Verde, supra note 54, at 178. 155 Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996); Mascolo, supra note 38, at 340–41. 156 Illinois v. Gates, 462 U.S. 213, 238 (1983); Mascolo, supra note 38, at 340–41. 157 Steagald, 451 U.S. at 214.


arrest him in his home. This analysis, however, is plainly inapplicable when the police seek to use an arrest warrant as legal authority to enter the home of a third party to conduct a search.158

This language further limits the application of Payton to circumstances in which police enter a suspect’s own home to effectuate an arrest and distinguishes it from the search of a third-party residence.159 Therefore, whether a particular warrant properly protects an individual’s rights “depends upon what the warrant authorized the agents to do.”160 In Tatum, the initial search of the property was to determine whether the defendant was inside and was not an entry of the defendant’s own home to make an arrest.161 This search implicated Tatum’s expectation of privacy protected by both the Fourth Amendment and Article XIV.162 Accordingly, this search went beyond the limited authority inherent in an arrest warrant as characterized by the Supreme Court.163

2. The SJC Should Have Extended Steagald to Ensure that the Defendant’s Privacy and Liberty Interests Were Protected

Under existing Fourth Amendment and Article XIV precedent, Tatum was an overnight guest with a protected privacy interest in the third-party residence.164 This privacy interest was not adequately protected by the arrest warrant that granted the police only limited authority to enter Tatum’s own residence.165 The majority’s extension of Payton means that Tatum does not have standing to challenge either the search warrant issued for the third-party residence or the likely unconstitutional means employed by police to obtain that warrant.166 Yet, this result was not required by the Supreme Court’s holding in Payton.167 This result is also inconsistent with existing Article XIV precedent, which gives an overnight guest standing to challenge the search of a third party’s residence.168 Because Tatum was

158 Id. at 214 n.7 (emphasis added). 159 United States v. Underwood, 717 F.2d 482, 488 (9th Cir. 1983) (Skopil, J., dissenting). 160 Steagald, 451 U.S. at 213. 161 See Brief for the Defendant, supra note 69, at 4. 162 See supra notes 116, 130–131 and accompanying text. 163 See Steagald, 451 U.S. at 214 n.7; Payton v. New York, 445 U.S. 573, 603 (1980). 164 See supra notes 116, 130–131 and accompanying text. 165 See supra notes 160–163 and accompanying text. 166 Commonwealth v. Tatum, 992 N.E.2d 987, 996 (Mass. 2013) (Lenk, J., dissenting). 167 Id. at 997. 168 Compare Commonwealth v. Morrison, 710 N.E.2d 584, 586 (Mass. 1999) (holding that an

overnight guest has standing under Article XIV to challenge a search of the host’s residence),

with Tatum, 992 N.E.2d at 994 & n.15 (stating that the defendant, who was staying in the third-

party residence overnight, lacked standing to insist upon a search warrant).


entitled to the protection of a search warrant, only the extension of Steagald would have protected both his liberty and privacy interests.169 Extending Steagald would not have given Tatum any greater rights than he would have had in his own home, but merely recognized Payton as the limited exception to these rights.170

IV. Extending Payton Undermines the Privacy and Security of Innocent Third Parties

The SJC was wrong to extend Payton to subjects of arrest warrants in third-party residences because this extension will undermine the constitutional rights of innocent third parties.171 A major criticism of the Payton arrest warrant requirement is that it does little to protect those not named in the arrest warrant.172 This was of particular concern to the dissent in Tatum.173 In fact, the Supreme Court stated quite clearly in Steagald that an arrest warrant does “absolutely nothing” to protect the rights of the third-party resident.174 By extending Payton to subjects of arrest warrants in third-party residences, the SJC puts these third parties at risk.175 Denying suspects’ standing to insist upon a search warrant in another’s home has even been characterized as “bizarre reasoning [which] would render the Steagald rule a virtual nullity.”176

The Supreme Court’s Payton analysis not only fails to account for entry into third-party homes,177 but it fails to consider the privacy interests of the suspect’s possible cohabitants.178 An arrest warrant is issued based on probable cause that the suspect has committed a crime—this includes no judicial determination regarding the privacy rights of a home’s occupants.179 Further compounding the problem is that “[i]n general, arrest

169 See United States v. Underwood, 717 F.2d 482, 490 (9th Cir. 1983) (Skopil, J., dissenting)

(arguing that, under an analogous situation, Steagald should have been extended to protect the

defendant’s expectation of privacy). 170 See Klevit, supra note 22, at 973–74; Frank, supra note 50, at 253. 171 Tatum, 992 N.E.2d at 999 (Lenk, J., dissenting). 172 See Mascolo, supra note 38, at 343; Verde, supra note 54, at 176. 173 See Tatum, 992 N.E.2d at 997 (Lenk, J., dissenting). 174 Steagald v. United States, 451 U.S. 204, 213 (1981). 175 See Tatum, 992 N.E.2d at 999 (Lenk, J., dissenting) (“Chiefly because the court’s decision

undermines the security of third-party householders, I respectfully dissent.”). 176 6 LAFAVE, supra note 64, at § 11.3(b). 177 See Payton v. New York, 445 U.S. 573, 583 (1980) (stating that the Court’s decision only

addressed entry into the suspect’s own home). 178 Mascolo, supra note 38, at 343; see Roger D. Groot, Arrests in Private Dwellings, 67 VA. L.

REV. 275, 279–80 (1981). 179 See United States v. Underwood, 717 F.2d 482, 490 (9th Cir. 1983) (Skopil, J., dissenting)

(“When police go to other persons’ homes to search for a suspect, however, the arrest warrant


warrants constrain police less—and thus offer less privacy protection—than do search warrants.”180 In reality, an entry to arrest may not only look very much like an entry to search,181 but may also subsequently result in a search of the entire dwelling—without a search warrant.182 Police entry into a home to make an arrest implicates the privacy interests of the suspect’s cohabitants.183 However, under Payton, these individuals would only have standing to challenge police entry if it occurred in the absence of an arrest warrant.184 The privacy interests of third parties are so poorly protected by arrest warrants that at least one commentator has called for Payton to apply only in the suspect’s own home and only when they live alone.185

By extending Payton to third-party residences the SJC is extending Payton’s shortcomings to the third-party residents themselves.186 In theory, third-party residents are protected by their standing to insist upon a search warrant in addition to the arrest warrant.187 However, as the dissent in Tatum cautioned, police could potentially circumvent the need for a search warrant by choosing not to charge the third-party resident with any crimes.188 According to one commentator, “[i]f individuals are precluded from objecting to warrantless entries and searches of homes by their lack of standing, little incentive remains for law enforcement officers to comply with the warrant rules announced in Payton and Steagald.”189 The reality of

simply does not contain this minimum protection as to the suspect's own rights. There has

been no judicial identification of the place to be searched.”). 180 Groot, supra note 178, at 279. 181 See Harbaugh & Faust, supra note 32, at 204–06 (comparing searches incident to arrest

under an arrest warrant to searches conducted pursuant to search warrants). 182 See, e.g., Jeremy H. Rothstein, Note, Track Me Maybe: The Fourth Amendment and the Use of

Cell Phone Tracking to Facilitate Arrest, 81 FORDHAM L. REV. 489, 515 (2012) (discussing the

extent of searches incident to arrest and protective sweeps of a suspect’s home). 183 Commonwealth v. Dejarnette, 911 N.E.2d 1280, 1285 (Mass. App. Ct. 2009) (“Where,

however, officers are seeking to execute the arrest warrant at a third party’s residence, the

rights of ‘persons not named in the warrant’ who live at that residence are directly

implicated.”) (quoting Steagald v. United States, 451 U.S. 204, 212 (1981)); see Verde, supra note

54, at 176. 184 See Steagald, 451 U.S. at 230–31 (Rehnquist, J., dissenting). 185 Groot, supra note 178, at 284–85. 186 See Mascolo, supra note 38, at 343. Cohabitants living in the suspect’s residence are in an

identical position as the third-party resident in Steagald. Id. If Payton is inadequate to protect

one, it is also inadequate to protect the other. See Frank, supra note 50, at 253 (“Allowing police

officers to enter a home with only an arrest warrant for a guest, which does not in any way

address the reasonableness of the home entry, would seriously undermine the fourth

amendment's protection of the home.”). 187 See Steagald, 451 U.S. at 216. 188 Commonwealth v. Tatum, 992 N.E.2d 987, 996 (Mass. 2013) (Lenk, J., dissenting). 189 Harbaugh & Faust, supra note 32, at 237.


these concerns is evident in the very facts of Tatum: in order to determine Tatum’s location the police improperly violated the privacy interests of both Tatum and the third-party resident, yet under the majority opinion the police are free to do so without any consequences.190

Another practical implication to be considered under Payton is the ambiguity surrounding residency determinations.191 Determining where a suspect lives and when that residency began is far short of an exact science: individuals could stay at a certain location for only a couple of days and have that location be considered their “home” by law enforcement.192 This not only blurs the line between guest and resident, but this ambiguity has consequences for other individuals who may live there.193 Once police consider the location to be the suspect’s residence, they can enter to arrest the suspect,194 conduct a search incident to arrest and protective sweep of the entire home,195 and do so without affording the home’s occupants the minimum protections of a search warrant.196

Extending Payton “eliminates a judicial determination of probable cause to search and judicial limitation on the scope of the search.”197 By failing to recognize a guest’s standing to challenge a search warrant “the protective cloak of Payton and Steagald will become a sham.”198 Arguably, the only way to ensure that Steagald’s warrant requirements are followed is to allow the subject of an arrest warrant standing to challenge the reasonableness of the search.199 Weakening the search warrant requirement allows police to search homes under something resembling a general warrant.200 This is precisely what the Fourth Amendment and Article XIV

190 See Tatum, 992 N.E.2d at 997 (Lenk, J., dissenting). 191 See 3 LAFAVE, supra note 64, at § 6.1(b) (“[T]here may arise another difficult issue: just

what is it which makes a certain location an individual’s place of residence for purposes of the

Payton-Steagald distinction?”). 192 See Steagald, 451 U.S. at 230–31 (Rehnquist, J., dissenting). 193 See Frank, supra note 50, at 244–45 (discussing the uncertainty that can arise as to

whether a guest is actually a resident); see, e.g., Dan Stamm, Officer Fires Shot in Home with

Kids, Dogs Present, NBC10 PHILA. (Sep. 30, 2013, 12:56 PM), http://www.nbcphiladelphia.com/

news/local/Warrant-Search-Shots-Fired-225784481.html (discussing police entry of a home to

search for a suspect who moved out six years prior). 194 Payton v. New York, 445 U.S. 573, 603 (1980). 195 See Rothstein, supra note 182, at 515. 196 See United States v. Underwood, 717 F.2d 482, 490 (9th Cir. 1983) (Skopil, J., dissenting). 197 Id. at 487. 198 Harbaugh & Faust, supra note 32, at 238. 199 Underwood, 717 F.2d at 491 (Skopil, J., dissenting). 200 See Frank, supra note 50, at 254.


were intended to prevent201 and the Supreme Court hoped to avoid under Steagald.202

CONCLUSION

The SJC was wrong to extend Payton to arrests within third-party residences. Finding that the defendant did not have standing to challenge the validity of the search is inconsistent with existing Fourth Amendment and Article XIV jurisprudence. As an overnight guest, existing precedent recognized the defendant’s expectation of privacy in the residence and provided him with standing to challenge the search. Considering the additional Fourth Amendment jurisprudence would have put Payton in the appropriate context—one where Payton’s arrest warrant requirement is the limited exception to the search warrant requirement. The SJC is opening the door to potential law enforcement abuses by minimizing—or possibly even negating—Steagald’s search warrant requirements through a Payton-centered approach to arrests of suspects outside their own homes. The SJC should have extended the Steagald search warrant requirement to subjects of arrest warrants in third-party residences because it would have provided greater protections for innocent third parties. The SJC could have grounded the extension of Steagald in existing precedent or found that a search warrant was required under Article XIV.

201 See Grasso, supra note 28, at 319. 202 Steagald v. United States, 451 U.S. 204, 215 (1981).

Documents

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