UNITED STATES OF AMERICA, PETITIONER V. JOHN HENRY MORGAN No. 84-1357 In the Supreme Court of the United States October Term, 1984 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Sixth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-22a) is reported at 743 F.2d 1158. The written (App., infra, 23a-28a) and oral (App., infra, 29a-30a) opinions of the district court are unreported. JURISDICTION The judgment of the court of appeals (App., infra, 33a-34a) was entered on September 13, 1984. A petition for rehearing was denied on November 27, 1984 (App., infra, 31a-32a). On January 17, 1985, Justice O'Connor extended the time in which to file a petition for a writ of certiorari to February 25, 1985. The jurisdiction of this Court rests on 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether law enforcement officers who have probable cause to believe that a suspect committed a felony must obtain a warrant before inducing the suspect to leave his house so that they may arrest him, when the officers effect the arrest without entering the house. 2. Whether, assuming that officers violate the Fourth Amendment when they summon a suspect from his house without a warrant, a weapon that the suspect carries with him when he leaves the house should be treated as a fruit of the improper arrest. 3. Whether the Fourth Amendment exclusionary rule should be modified so as not to bar the admission of evidence seized in the reasonable belief that the warrantless arrest of a felony suspect did not violate the Fourth Amendment. STATEMENT Respondent was indicted in the United States District Court for the Eastern District of Tennessee on a single count of possessing an automatic weapon that had not been registered to him, in violation of 26 U.S.C. 5861(d) and 5871 (App., infra, 1a-2a, 23a; C.A. App. 2). The district court suppressed the weapon on the ground that it had been seized in violation of the Fourth Amendment (App., infra, 23a-30a). The government appealed under 18 U.S.C. 3731, and the court of appeals affirmed (id. at 1a-22a). 1. Sheriff Reynolds and Deputy Sheriff Bells of Morgan County, Tennessee, went to a public park to investigate reports of shooting. As they approached the park in an unmarked car, they recognized the sound of automatic weapons being fired. Upon arriving at the park, they saw respondent and four or five other individuals standing near the open trunk of a blue Cadillac. App., infra, 2a, 24a; C.A. App. 34, 41, 58, 76. When the group recognized the officers, respondent expressed surprise, saying "(you) never know what the law is going to be driving" (C.A. App. 34), and another member of the group dropped a weapon with a folding stock -- characteristic of automatic weapons -- into the trunk. When confronted by the officers, the group agreed to leave the park. App., infra, 2a, 24a-25a; C.A. App. 34, 41-42. The officers then drove about 200 yards away from the group and, after conferring, decided to investigate further. When they again approached the scene, one member of the group quickly closed the trunk of the Cadillac in a fashion that led Sheriff Reynolds to conclude that he was attempting to conceal its contents from the officers. App., infra, 2a; C.A. App. 34-35. Sheriff Reynolds then began to write down the license plate number of the Cadillac, but before he finished doing so he was approached by a by-stander who made the following statement to him: If you get out of the car and attempt to arrest these people they will shoot you. They have done made the comment that they will kill any law that tries to arrest them. The best thing you ought to do is to get out of here and go get some help. App., infra, 3a. The bystander also told the officers that the trunk of the Cadillac was filled with machine guns, pistols, and shotguns, and that every member of respondent's group was armed. Ibid.; C.A. App. 35-36. The officers immediately left the park, without pausing even to finish recording the license plate number of the Cadillac, and called for additional help. When the help arrived the officers returned to the scene, but respondent's group was no longer there. The officers then blocked off nearby roads and broadcast an alert for a blue Cadillac bearing an out-of-state license plate with a number that began with "95." The alert warned that the occupants of the car should be considered armed and dangerous. App., infra, 3a; C.A. App. 36-37, 48-50. Shortly thereafter, Officer Isham of the City of Harriman Police Department, who had heard the alert, saw the Cadillac and followed it to the home of respondent's mother. He observed several people leave the car and carry a large number of weapons into the house. When Officer Isham reported his observations, his superior, Assistant Chief Alcorn, instructed him that it would be unsafe to proceed further without other officers present. The officers then called for help, and several officers, including Sheriff Reynolds and Deputy Sheriff Bells, arrived on the scene. Reynolds and Bells identified the blue Cadillac as the car they had seen at the park. App., infra, 3a; C.A. App. 30-31, 50, 60, 61. The officers then met briefly in the parking lot of a nearby restaurant to coordinate assignments. Chief Alcorn drove his car into the driveway of the house, behind the Cadillac; the eight other officers surrounded the house. At this point, slightly more than one hour had elapsed since the initial encounter in the park. Chief Alcorn, using a public address system, identified himself as a police officer and summoned respondent from the house. App., infra, 4a; C.A. App. 50-53, 57. According to the testimony of one of respondent's companions inside the house, respondent said: "It is the cops. What should we do?" (C.A. App. 80). When Chief Alcorn received no response, he repeated the summons. Respondent then appeared at the door of the house holding what the officers recognized as an automatic pistol. Chief Alcorn ordered respondent to place the weapon down, but instead respondent raised it, with his finger on the trigger guard. When Chief Alcorn repeated the order, respondent placed the weapon "just inside of the doorway" of the house. C.A. App. 54; see id. at 37-38, 53-54; App., infra, 4a, 25a. Chief Alcorn then ordered respondent to step forward with his hands in view. Respondent instead reached into his right rear pocket. When Chief Alcorn ordered him to move his hand away, respondent began to comply but then returned his hand to his pocket. An officer fired warning shots; respondent then moved his hand away and complied with an order to lie on the ground. The officers placed respondent under arrest, frisked him, and found a loaded pistol in his right rear pocket. App., infra, 4a, 25a; C.A. App. 37-38, 51-55. Chief Alcorn then ordered the other occupants from the house; after several persons emerged, three officers entered the house briefly to see if there were other potentially dangerous occupants. On his way into the house, Chief Alcorn seized the weapon respondent had placed inside the doorway. This weapon, too, was fully loaded. App., infra, 4a, 25a; C.A. App. 38-39, 55-56. Respondent was indicted for possessing this weapon. Inside the house, the officers found 12 or 13 other weapons scattered about the front room. All of them were loaded. The officers also found some marijuana and drug paraphernalia. C.A. App. 39. 2. The district court ordered that all of the evidence discovered at the house be suppressed. App., infra, 23a-30a. It ruled that the officers had probable cause to suspect respondent of a crime when they surrounded the house. Id. at 27a-28a, 30a. But the district court faulted the officers for not obtaining a warrant. The court stated that it did "not find a prior justification for Officer Alcorn's entry onto the property without a search or arrest warrant" (id. at 26a) and ordered the evidence suppressed for the following reasons (id. at 27a-28a): For officers to enter a home without a search warrant, the circumstances must be extraordinary. In the opinion of the Court, the circumstances known by the officers should have been sufficient to create probable cause for the issuance of a search warrant. We find, however, that these circumstances did not justify the warrantless entry onto the property and the subsequent search of the house in this case. Failure to obtain a warrant prevents all of the evidence obtained during the warrantless entry from being competent at the trial on the merits. The government moved for reconsideration, abandoning the effort to obtain admission of the evidence found inside the house but urging that the automatic weapon respondent had pointed at the officers, and was indicted for possessing should be admitted into evidence (C.A. App. 103-109). /1/ The district court denied the motion without opinion (id. at 119). 3. The court of appeals affirmed, ruling that respondent "was illegally arrested when the police surrounded the * * * home and utilized coercive tactics and physical restraints which induced his presence at the door" (App., infra, 21a). The court stated that "because this conduct was not justified by a valid warrant or exigent circumstances, the subsequent police seizure of the gun * * * was illegal()" (ibid.). The court of appeals noted (App., infra, 5a) that in Payton v. New York, 445 U.S. 573 (1980), this Court ruled that, in the absence of exigent circumstances, law enforcement officers must obtain a warrant before entering a suspect's home to arrest him. The court of appeals acknowledged that the officers "may have" had probable cause to arrest respondent when they surrounded his mother's residence (App., infra, 10a-11a) but ruled that "as soon as the police surrounded the * * * home, * * * the arrest violated Payton because no warrant had been secured" (id. at 12a). /2/ The court of appeals expressly rejected the government's argument that no warrant was required to arrest respondent because the officers did not enter the house to make the arrest; instead, the court reasoned as follows (id. at 17a): Although there was no direct police entry into (respondent's mother's) home prior to (respondent's) arrest, the constructive entry accomplished the same thing, namely, the arrest of (respondent). Thus, the warrantless arrest of (respondent), as he stood within the door of a private home, after emerging in response to coercive police conduct, violated (respondent's) fourth amendment rights. The court then rules that the automatic weapon was correctly suppressed. The court reasoned that "(b)ecause the initial intrusion by the police was illegal, any evidence or contraband discovered as a result of that intrusion was illegally obtained" (App., infra, 20a). Judge Wellford concurred separately. He stated that "under the circumstances known to the police officers concerning the very recent use and/or possession of suspected illegal weapons by (respondent) (and others) in a public park, there was no need for a warrant to enter on (respondent's) mother's property to investigate and to attempt to question (respondent) about his knowledge and/or involvement in the episode" (App., infra, 22a). Judge Wellford also remarked that he "doubt(ed)" that the warrant requirement of Payton was applicable "because the officers did not enter into the mother's home to arrest resondent without a warrant" (ibid.). But Judge Wellford nevertheless determined that the officers acted unlawfully because respondent "was, in effect, compelled to leave his mother's house by coercive police conduct not justified by exigent circumstances at the time, bringing about an apparently intended warrantless arrest" (ibid.). Judge Wellford concluded that the automatic weapon was correctly suppressed because its seizure "was part and parcel of the improper warrantless arrest situation" (ibid.). REASONS FOR GRANTING THE PETITION The court of appeals erred in concluding that Payton v. New York, 445 U.S. 573 (1980), required the officers to obtain a warrant before they summoned respondent from the house. Under Payton, officers must obtain a warrant before arresting a suspect in a house because the arrest involves a search of the house. Here, the officers' arrest of respondent did not involve a search of the house. The court of appeals therefore should have applied the well-established principle governing arrest outside the home -- that a warrantless arrest is lawful if based on probable cause -- and upheld the officers' actions. This is perhaps the single most important unresolved issue of arrest law; it is of recurring practical significance; and it is one on which the lower courts are in disarray. Law enforcement officers frequently make arrests by inducing suspects to leave a house -- either by a direct order, as here, or by a ruse -- or simply by knocking on the door and apprehending the suspect if he answers. To require officers to obtain warrants in all of these very common situations will impose substantial and unnecessary costs on the administration of criminal justice without furthering the purposes that led the Court to conclude in Payton that some form of warrant is required to search a home for the person of a suspect. Irrespective of whether the arrest was lawful, the court of appeals erred in ordering the suppression of the weapon. Respondent's act of carrying the weapon to the door and displaying it to the officers was an independent intervening act of free will that purged the taint of any police illegality. Finally, if the Court disagrees with our submission and concludes that the arrest was unlawful and the weapon was a fruit of the arrest, the weapon should still be allowed into evidence because this is an appropriate case in which to apply a "reasonable mistake" exception to the Fourth Amendment exclusionary rule. 1. "In United States v. Watson, 423 U.S. 411 (1976), (the Court) held that the warrantless arrest of an individual in a public place upon probable cause (does) not violate the Fourth Amendment." United States v. Santana, 427 U.S. 38, 42 (1976). This rule has deep roots in history (see Watson, 423 U.S. at 418-422), and at least until Payton, the Court "ha(d) never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant." Gerstein v. Pugh, 420 U.S. 103, 113 (1975). The courts below concluded that when the police surrounded respondent's mother's house and summoned him outside, they effectively arrested him for purposes of the Fourth Amendment. Although this conclusion is not obviously correct, we do not dispute it here. /3/ The district court found, and the court of appeals assumed, that at the time the officers took this action, they had probable cause to believe that respondent had committed at least the felony of unlawfully possession automatic weapons. /4/ Nevertheless, the courts below ruled that the arrest of respondent violated the Fourth Amendment. They reached this conclusion because they read Payton v. New York, supra, to stand for the proposition that a warrant is required to arrest a person, even on probable cause, "while he (is) present inside a private home" (App., infra, 17a). This is an important and fundamental misunderstanding of Payton. The explicit holding of Payton was that "the Fourth Amendment * * * prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest" (445 U.S. at 576; emphasis added). The language and logic of the Payton opinion itself, and a correct analysis of the relevant Fourth Amendment interests, make it clear that the Court in Payton meant what it said: law enforcement officers need a warrant to arrest a suspect only if they enter a home in the course of doing so. Since the officers in this case did not enter the house in the course of arresting respondent, they were not required to have a warrant, and the courts below erred in concluding that the arrest violated the Fourth Amendment. a. A search of a house for contraband or evidence of a crime cannot, of course, be justified by probable cause alone; unless there are exigent circumstances, the officers must ordinarily obtain a warrant. See, e.g., Johnson v. United States, 333 U.S. 10, 13-14 (1948). Payton rests on the principle that a search of a house for a person is sufficiently similar to a search for evidence to make a warrant necessary in both situations. As the Court explained in Payton, officers must obtain a warrant before entering a home to arrest a suspect because "it is inherent in such an entry that a search for the suspect may be required before he can be apprehended." 445 U.S. at 588 (footnote omitted). See also Steagald v. United States, 451 U.S. 204, 211 (1981). Thus, in the situation presented by Payton, the Fourth Amendment is violated not by the warrantless arrest of the suspect but by the warrantless search of the house that occurs in the course of effecting the arrest. The Court's reasoning in Payton makes this point unmistakably clear (445 U.S. at 589-590): (T)he critical point is that any differences in the intrusiveness of entries to search and entries to arrest are merely ones of degree rather than kind. The two intrusions share this fundamental characteristic: the breach of the entrance to an individual's home. The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home * * *. (T)he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant. It follows that Payton did not require the officers to obtain a warrant before they summoned respondent from his mother's house. The officers' actions in arresting respondent did not in any sense constitute a search of the house; the officers did not see the inside of the house until after respondent was arrested. In the language of Payton, the officers did not "breach the entrance" of the house, invade "the unambiguous physical dimensions of an individual's home," or violate the precept that the "threshold may not reasonably be crossed without a warrant." It is true, of course, that the officers' actions implicated interests protected by the Fourth Amendment; we do not dispute that those actions amounted to a seizure and that under the Fourth Amendment a seizure must be reasonable. But the holding of Watson is precisely that a seizure is reasonable even if it is conducted without a warrant, so long as it is based on probable cause and does not involve a search of a residence. It is also true that the officers' actions disturbed respondent's repose in the house; it was apparently this aspect of the arrest that caused the court of appeals to rule that a warrant was required. But the warrant requirement applies to searches, not to all actions that might be said to intrude upon the sanctity of the home in some sense. "'(T)he physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" Welsh v. Wisconsin, No. 82-5466 (May 15, 1984), slip op. 7-8, quoting United States v. United States District Court, 407 U.S. 297, 313 (1972) (emphasis added). Cf. Lewis v. United States, 385 U.S. 206 (1966); Payton, 445 U.S. at 585 (declining to endorse the broad language of Boyd v. United States, 116 U.S. 616, 630 (1886)). /5/ The court of appeals, and Judge Wellford in particular, also attached considerable importance to the officers' use of what they termed "coercive activity" (App., infra, 4a; id. at 17a, 21a, 22a). The significance of this factor is not entirely clear, since, by their very nature, arrests ordinarily entail coercive conduct. We note that the officers' supposed "coercion" consisted simply in summoning respondent from the house while maintaining a safe distance; there is no evidence that the officers even displayed weapons until respondent pointed a weapon at them. But in any event, the Fourth Amendment requirement is one of reasonableness: the officers' tactics, coercive or not, did not violate the Fourth Amendment unless they were unreasonable. The officers were approaching a house that they knew to contain large numbers of weapons, including at least one automatic weapon, and to be inhabited by a group of persons who had allegedly threatened to shoot any law enforcement officers who attempted to arrest them. In these circumstances, their actions can hardly be described as unreasonable; indeed, it would have been foolhardly for the officers to have proceeded in any other way. b. The question whether law enforcement officers must obtain a warrant before inducing a suspect to come to the threshold or leave his house so that they may arrest him is one of great practical significance, and its resolution is likely to have a substantial effect on police practices. Law enforcement officers who believe they are dealing with armed and dangerous suspects who are inside a building will often approach the building in much the way the officers in this case approached respondent. Officers may also attempt to induce a suspect to leave his home by employing a ruse; or they may simply knock on the door and arrest the suspect if he answers. The last method is particularly likely to be used in the substantial number of cases in which the crime is less serious and the suspect is thought likely to submit to the arrest peacefully upon answering the door. In each of these situations, the arrest can be effected without a search of the residence, and a warrant authorizing a search should therefore not be required. But if Payton is interpreted as a holding that law enforcement officers must have a warrant before they take any steps to arrest a person who is inside his home at the time, the rule of Watson -- which has been thought to be the general rule governing arrests -- will not apply to these extremely common situations. /6/ The lower court decisions that have considered the lawfulness of arrests effected by inducing a suspect to leave a house reflect no coherent understanding of the relationship between Payton and Watson. For example, the Ninth Circuit appears to allow an officer who has probable cause to known on a suspect's door and arrest him without a warrant if he answers, unless the officer gives a false identity when he knocks. Compare United States v. Whitten, 706 F.2d 1000, 1015 (1983), and United States v. Botero, 589 F.2d 430 (1978), cert. denied, 441 U.S. 944 (1979), with United States v. Johnson, 626 F.2d 753, 756-757 (1980), aff'd on other grounds, 457 U.S. 537 (1982). The Tenth Circuit has upheld a warrantless arrest made when a suspect answered a knock on the door of his motel room. United States v. Herring, 582 F.2f 535, 543 (1978). The Fifth Circuit has upheld the warrantless arrest of a suspect who appeared at his door when he saw officers approaching. United States v. Mason, 661 F.2d 45, 47 (1981). Recently, however, the Washington Supreme Court relied on the court of appeals' decision in the present case to hold that, under Payton, police officers must have a warrant to arrest a suspect standing in the doorway of his house even if the officers do not cross the threshold. Washington v. Holeman, No. 50606-0 (Jan. 10, 1985), slip op. 3-4 (summarized at 36 Crim. L. Rep. (BNA) 2324 (1985)). 2. The court of appeals appears to have recognized that if the arrest of respondent was lawful, the automatic weapon respondent brought with him to the door was lawfully seized. For example, the court indicated that the weapon was "seized incident to (respondent's) arrest" (App., infra, 18a). And in explaining why the weapon was not properly seized even though it was obviously incriminating evidence in plain view, the court said only that the officers "were not 'lawfully engaged' in legitimate police activities at the moment the object in question came into 'plain view'" (id. at 19a). Thus, the basis of the court of appeals' determination that the weapon was inadmissible was simply its conclusion that the weapon was "discovered as a result of" the supposedly illegal arrest (id. at 20a). /7/ While it may be true that the weapon would not have been seized if the officers had not arrested respondent, it does not follow -- even assuming, contrary to our submission, that the arrest was illegal -- that the weapon was correctly suppressed. This Court has repeatedly held that evidence is not to be excluded merely because "it would not have come to light but for the illegal actions of the police." Wong Sun v. United States, 371 U.S. 471, 488 (1963). See, e.g., Rawlings v. Kentucky, 448 U.S. 98, 106 (1980); Brown v. Illinois, 422 U.S. 590, 603 (1975). In particular, evidence is not to be suppressed if it is the product of "an act of free will (that) * * * purge(s) the primary taint" (Wong Sun, 371 U.S. at 486). Respondent's decision to resist arrest by appearing at the door with an illegal weapon was such a deliberate act. The admissibility of evidence obtained following an illegal detention should, of course, be determined by reference to the objectives of the Fourth Amendment exclusionary rule. See Brown, 422 U.S. at 601-603. "Whether the exclusionary sanction is appropriately imposed in a particular case * * * must be resolved by weighing the costs and benefits of preventing the use" of the evidence in issue. United States v. Leon, No. 82-1771 (July 5, 1984), slip op. 7. The costs of allowing a suspect to escape criminal liability even though he responds to a police summons by appearing with a dangerous illegal weapon are obviously great. At the same time, there can be no suggestion that the officers deliberately conducted an illegal arrest of respondent in the hope of inducing him to appear with an illegal weapon. Compare Brown, 422 U.S. at 605. In these circumstances, the court of appeals plainly erred in concluding that the balance of interests favored suppression. /8/ 3. We accordingly submit that the arrest of respondent was lawful and that, even if it was not, the seizure of respondent's weapon was not a suppressible fruit of any illegality. But if the Court were to disagree with us and conclude that the seizure of the weapon violated the Fourth Amendment, the evidence should nonetheless be admitted because a reasonably well-trained police officer would not have known that the seizure of the weapon was unconstitutional. a. Last Term, in United States v. Leon, No. 82-1771 (July 5, 1984), the Court held that the Fourth Amendment exclusionary rule should be modified so as to permit the introduction of evidence seized by officers reasonably relying on a search warrant, even if the warrant is ultimately found to have been invalid. In the same Term, the Court granted certiorari in Colorado v. Quintero, No. 82-1711 (June 27, 1983), to consider whether the Fourth Amendment exclusionary rule should be modified so as to permit the admission of evidence seized as the result of a search incident to a warrantless felony arrest when the arresting officer reasonably but mistakenly believed that the arrest was based on probable cause. On December 12, 1983, the writ of certiorari in Quintero was dismissed as moot because the defendant had died. In the present case, the government contended in the court of appeals -- and we demonstrate below -- that even if the officers' actions are ultimately determined to have violated the Fourth Amendment, the weapon should nonetheless be admitted because the Fourth Amendment principles that the officers transgressed were by no means clearly established at the time, and reasonable arguments can be made in defense of the officers' actions. The court of appeals rejected this contention, distinguishing Leon on the ground that in that case the officers had obtained a warrant, while the officers in this case had not (App., infra, 13a-14a). Accordingly, should this Court determine that the officers' actions violated the Fourth Amendment, this would be a suitable case in which to consider whether the "reasonable mistake" exception to the exclusionary rule established in Leon should apply to warrantless searches or seizures as well. We submit, however, that it is appropriate for the Court first to consider the legality of the arrest and the seizure in this case. As we have explained, the question whether, under Payton, an officer acting on probable cause but without exigent circumstances can induce a suspect to leave his house for the purpose of arresting him is an issue of great practical importance on which the lower courts are in disarray. The Court in Leon specifically stated that "(t)here is no need for courts to adopt the inflexible practice of always deciding whether the officers' conduct manifested objective good faith before turning to the question whether the Fourth Amendment has been violated. * * * If the resolution of a particular Fourth Amendment question is necessary to guide future action by law enforcement officers * * *, nothing will prevent reviewing courts from deciding that question before turning to the good-faith issue." Slip op. 25 (citation omitted). Resolution of the question whether the Fourth Amendment required the officers to obtain a warrant before arresting respondent by inducing him to leave a residence is needed "to guide future action by law enforcement officers." We therefore suggest that the Court first consider the substnative Fourth Amendment questions presented by this case and determine whether to admit the evidence under a reasonable mistake exception only if it finds that the Fourth Amendment was violated. b. i. In our consolidated brief on the merits in Leon, Quintero, and Massachusetts v. Sheppard, No. 82-963, we explained why evidence seized as a result of police officers' reasonable mistake concerning the requirements of the Fourth Amendment should not be excluded at trial. /9/ It would serve no purpose to attempt to encapsulate these arguments here. The Court granted certiorari to consider this question in Quintero, and it remains sufficiently substantial to warrant the Court's attention. ii. Whatever room for disagreement there may be concerning the Fourth Amendment issues presented by this case, we submit that the overall conduct of the officers was manifestly reasonable and therefore does not call for application of the exclusionary rule. As our discussion of the legality of the arrest demonstrates, any police officer familiar with the language and logic of this Court's opinions -- particularly its opinion in Payton -- would surely have had abundant reason to believe that he could arrest respondent without a warrant so long as, in so doing, he did not cross the threshold of the house without consent or exigent circumstances. Moreover, although we have not separately presented the question whether exigent circumstances would have justified the officers in proceeding without a warrant even if one were otherwise required, the conclusion of the courts below that exigent circumstances did not exist is incorrect. At the very least, if the officers -- who testified that they did not obtain a warrant because they did not believe they had sufficient time to do so (C.A. App. 57, 68) -- were mistaken in their conclusion that exigent circumstances existed, their mistake was reasonable. The officers knew that a large cache of dangerous weapons, including at least one illegal weapon, was in a home in a residential area. They had been told that the individuals in possession of the weapons had threatened to kill law enforcement officers. The events in issue took place on a weekend night -- at around 10:00 p.m. on a Sunday (see C.A. App. 33, 38) -- and Chief Alcorn testified that it would have been difficult to obtain a magistrate to issue a warrant (see id. at 68). Once they were warned of the violent propensities of respondent's group, the officers at all times acted as if they were confronted with an emergency: they left to seek reinforcements in such haste that they did not even record the license plate number of the Cadillac; they established roadblocks; and within approximately an hour they had surrounded the house in which the weapons were kept. The court of appeals emphasized (App., infra, 7a-8a, 10a) the brief meeting that the officers conducted near the house. But the fact that the officers met to coordinate their tactics and plan how best to avoid danger to themselves surely does not bely the existence of exigent circumstances. Contrary to the court of appeals, the fact that such a meeting occurred does not mean that the arrest was not made "in the course of an ongoing investigation in the field" (LaFave, "Seizures" Typology: Classifying Detentions of the Person To Resolve Warrant, Grounds, and Search Issues, 17 U. Mich. J. L. Ref. 417, 456 (1984)). Thus, the officers had two independent, reasonable bases -- one depending on an uncertain legal question and one on the application of settled doctrine to the facts confronting the officers -- for believing that they were entitled to arrest respondent without a warrant. As we have noted, it appears that the court of appeals ruled that the officers' other action -- the seizure of the weapon -- was unlawful only because the court believed it to be the fruit of an illegal arrest. In any event, we have shown that the seizure of the weapon can be justified on the ground that it did not involve a search; that any search involved in seizing the weapon was justified by probable cause and exigent circumstances;and that any such search was incident to respondent's arrest. Even if this Court disagrees with all of our submissions and concludes that the seizure of the weapon somehow violated the Fourth Amendment, it seems clear beyond doubt that the officers did not act unreasonably in concluding that they did not have to leave a dangerous and patently illegal weapon at the threshold of the house after it had been brandished at them by respondent. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General STEPHEN S. TROTT Assistant Attorney General ANDREW L. FREY Deputy Solicitor General DAVID A. STRAUSS Assistant to the Solicitor General FEBRUARY 1985 /1/ We believe the evidence found inside the house should also not have been suppressed. The officers, who knew that there were a large number of weapons in the house, had no way of knowing that no one was still hiding in the house and had ample reason to believe that any persons still inside the house could pose a threat to their safety. In these circumstances, as the courts of appeals have consistently ruled, the officers were entitled to make a search of the house for other persons in order to protect their own safety. See, e.g., United States v. Martino, 664 F.2d 860, 869-870 (2d Cir. 1981), cert. denied, 458 U.S. 1110 (1982); United States v. Wiga, 662 F.2d 1325, 1331 (9th Cir. 1981), cert. denied, 456 U.S. 918 (1982); United States v. Vasquez, 638 F.2d 507, 530-532 (2d Cir. 1980), cert. denied, 454 U.S. 975 (1981); United States v. Gardner, 627 F.2d 906, 909-911 (9th Cir. 1980); United States v. Baker, 577 F.2d 1147, 1152 (4th Cir.), cert. denied, 439 U.S. 850 (1978); United States v. Bowdach, 561 F.2d 1160, 1168-1169 (5th Cir. 1977); McGeehan v. Wainwright, 526 F.2d 397, 399-400 (5th Cir.), cert. denied, 425 U.S. 997 (1976); United States v. Sellers, 520 F.2d 1281, 1284 (4th Cir. 1975), cert. denied, 429 U.S. 1075 (1977); United States v. Smith, 515 F.2d 1028, 1031 (5th Cir. 1975), cert. denied, 424 U.S. 917 (1976). The cache of guns was seen in plain view during the protective sweep and was therefore lawfully seized. /2/ The court of appeals found that there were no exigent circumstances becuase the officers were not in "hot pursuit" of respondent (App., infra, 7a); because respondent and his confederates did not "represent() an immediate threat to the arresting officers or the public" (id. at 8a); and because "immediate police action" was not needed "to prevent the destruction of vital evidence or thwart the escape of known criminals" (id. at 10a). In reaching its conclusion that there were no exigent circumstances, the court of appeals emphasized that the officers had time to meet to plan their strategy for apprehending respondent (see id. at 7a-8a, 10a). /3/ The officers' actions also did not exceed the scope of a permissible Terry stop. Terry v. Ohio, 392 U.S. 1 (1968); see e.g., United States v. Hensley, No. 83-1330 (Jan. 8, 1985), slip op. 5-8; Florida v. Rodriguez, No. 83-1367 (Nov. 13, 1984), slip op. 5; Florida v. Royer, 460 U.S. 491, 498 (1983) (opinion of White, J.); United States v. Mendenhall, 446 U.S. 544, 560 (1980) (Powell, J., concurring); United States v. Brignoni-Ponce, 422 U.S. 873, 881-882 (1975). It was manifestly reasonable for the officers to respond to the events at the park not by shrugging their shoulders but by attempting to pursue their investigation by speaking with respondent. If the officers had knocked on the door of the house and, when respondent appeared, detained him while they questioned him briefly, there would be no question that their actions would not have exceeded the bounds of a lawful Terry stop. But the officers had abundant reason to fear that such an approach to a house, the occupants of which were armed and had reportedly threatened to kill law enforcement officers, would jeopardize their safety. In these circumstances, it was surely reasonable for them to carry out the Terry stop by remaining at a distance while they summoned respondent from the house. See, e.g., United States v. Merritt, 695 F.2d 1263, 1272-1275 (10th Cir. 1982); United States v. White, 648 F.2d 29, 36-40 (D.C. Cir. 1981); United States v. Williams, 604 F.2d 1102, 1109 (8th Cir. 1979); United States v. Coades, 549 F.2d 1303 (9th Cir. 1977). Of course, when they did so, respondent appeared brandishing an automatic weapon, thus giving the officers undoubted probable cause to arrest him. /4/ It is, in fact, entirely clear that the officers had probable cause at the time they surrounded the house. The officers had heard automatic weapons fire from the park; they saw a member of respondent's group holding a weapon with a folding stock; they saw members of the group acting furtively, in a fashion that suggested a desire to conceal something from the officers; and they were told by a bystander that the car contained automatic weapons. Cf. Adams v. Williams, 407 U.S. 143, 148-149 (1972). /5/ Indeed, the home was not even respondent's; it was his mother's home, which he was visiting for a brief period. See C.A. App. 24-25. It is therefore not entirely clear that respondent is even entitled to assert a substantial interest in repose in the home. /6/ We of course recognize that an arrest is a serious intrusion on individual liberty and is regulated by the Fourth Amendment. But the balance that has been struck by Anglo-American law for centuries, and that was confirmed by this Court in Watson, is that felony arrests are reasonable if based upon probable cause, and that no warrant is required unless, as in Payton, the arrest is accomplished by means of a search of private premises. See also 2 W. LaFave, Search and Seizure 231 (1978) (warning of the trivialization of the warrant requirement if warrants are routinely required for arrests). /7/ Because we understand the court of appeals to have ordered the suppression of the weapon solely on the ground that it was the fruit of an unlawful arrest, we have not separately presented the question whether the weapon would be admissible if the arrest were held to be lawful. In fact, assuming the lawfulness of the arrest, the weapon would be admissible on any one of three independently sufficient rationales. First, the seizure of the weapon did not involve a search. The weapon was clearly visible just inside the threshold of the house; its seizure did not place the officers in a position to observe anything that was kept private inside the house. An object that an officer can see without conducting a search may be seized on probable cause without a warrant. See, e.g., Illinois v. Andreas, No. 81-1843 (July 5, 1983), slip op. 6; Texas v. Brown, 460 U.S. 730, 738-739 (1983) (plurality opinion); id. at 748 (opinion of Stevens, J.); Payton, 445 U.S. at 587; G.M. Leasing Corp. v. United States, 429 U.S. 338, 354 (1977). The officers had probable cause to seize the weapon because they recognized it to be an automatic weapon. United Stats v. Santana, supra, held that a person standing on the threshold of a residence may be seized on probable cause without a warrant; there is no reason for a different rule to apply to the seizure of contraband. Second, even if the act of reaching just inside the threshold is thought to constitute a search, exigent circumstances amply justified the officers in taking this action. Respondent's mother's house was in a residential neighborhood (C.A. App. 58). Nine officers were attempting to maintain control of at least six recently arrested suspects, and the officers did not know how many other suspects might still be in the house. The officers did know, however, that there were numerous other dangerous weapons in the house. The officers had been warned that respondent's group had threatened to kill law enforcement officers, and respondent had resisted arrest. In these circumstances, the officers were plainly not required to leave an automatic weapon lying on the threshold of the house while a warrant was sought. Third, assuming again that the act of reaching just over the threshold involved a search, the weapon appears to have been close enough to respondent to make such an action a lawful search incident to arrest. This is true even though respondent had been subdued. See New York v. Belton, 453 U.S. 454 (1981). /8/ Indeed, it is particularly ironic that the rule of Payton -- which is designed to protect the security of the home against physical intrusions -- should be invoked as the basis for suppressing a weapon that the officers obtained not because they entered the home but because respondent voluntarily carried it outside the home. /9/ We have served a copy of that brief on counsel for petitioner. APPENDIX