STATE OF NEW YORK, PETITIONER V. BERNARD HARRIS No. 88-1000 In The Supreme Court Of The United States October Term, 1988 On Writ Of Certiorari To The Court Of Appeals Of New York Brief For The United States As Amicus Curiae Supporting Petitioner TABLE OF CONTENTS Question Presented Interest of the United States Statement Summary of argument Argument: Statements made by a suspect held in custody based on probable cause, following the warrantless entry of his home to make an arrest, should not be suppressed A. Payton v. New York, 445 U.S. 573 (1980), protects against warrantless entries of a dwelling, not against warrantless arrests B. A confession following a Payton violation is not the "fruit" of an illegal arrest C. The admission of statements given after warrantless home arrests will neither encourage Payton violations, nor permit the use of improperly obtained confessions Conclusion QUESTION PRESENTED Whether a statement given by respondent while he was in police custody following the warrantless entry of his home to make his arrest should be suppressed as the fruit of a violation of Payton v. New York, 445 U.S. 573 (1980). INTEREST OF THE UNITED STATES This case presents the question whether a defendant's statement, made while he was in custody following a warrantless entry of his home to arrest him, should be excluded from evidence as the fruit of a violation of Payton v. New York, 445 U.S. 573 (1980). Federal law enforcement officers generally refrain from making warrantless entries to arrest suspects in their homes absent exigent circumstances or consent. Nonetheless, such arrests occasionally occur, particularly where courts conclude that the facts did not constitute "exigent circumstances," even though the agents may have believed at the time that a warrantless "exigent circumstances" entry was justified. Additionally, federal authorities prosecute cases upon referral from state and local jurisdictions, after violations of Payton have occurred and statements have been given. Accordingly, the United States has a law enforcement interest in the outcome of this case. STATEMENT 1. On January 11, 1984, the police found the dead body of Thelma Staton in her apartment. The police investigation soon developed probable cause to believe that respondent had committed the murder. On January 16, 1984, at about 6:30 p.m., three police officers went to respondent's apartment, without a warrant, to take him into custody. After knocking on respondent's door and obtaining no response, one officer used a fire escape to reach a window of the apartment. The officer knocked on the window and said "Police." At the same time, the other two officers again knocked on the front door, with badges displayed and guns drawn. Pet. App. 2a; R. 41. Respondent then came to the door and asked, "Who is it?" After one officer held his badge up to the peephole, respondent allowed the officers to enter, stating that he was glad that the police had come for him. After respondent was read his Miranda rights, he acknowledged that he understood them and said that he was willing to answer questions. The police told respondent that they suspected him of murdering Thelma Staton. Respondent then poured himself a glass of wine and told them that he had committed the murder. Pet. App. 2a, 14a. Respondent was placed under formal arrest and taken to the police station. At the station, respondent was again given Miranda warnings and indicated he understood them. About one hour after his arrest, respondent dictated a written statement confessing to the murder and describing it in detail. Respondent read the statement, made one change in the written version, and signed it. Pet. App. 1a-2a, 14a-15a, 21a-22a. An assistant district attorney subsequently arrived to conduct a videotaped interview of respondent. Before the interview, respondent was advised of his Miranda rights for a third time. In response to a question whether he wanted to speak about the victim's death, respondent answered that he was tired and had said all he could say. A full statement was nonetheless videotaped in which respondent again confessed to Staton's murder. Pet. App. 2a-3a. 2. The trial court suppressed the oral statement respondent made upon his arrest in his apartment as "the product of an illegal arrest." Pet. App. 3a. The court reasoned that although the officers had probable cause to arrest respondent when they entered his apartment, the entry was accomplished by their show of authority and without a warrant. Accordingly, the court found, there could be "no clearer violation" of the rule of Payton v. New York, 455 U.S. 573 (1980). Pet. App. 3a. The court also suppressed the videotaped confession because respondent had indicated that he did not wish to be questioned prior to the making of the videotape. As to the written statement given in the station house, however, the trial court denied the motion to suppress, because it found that the taint of the illegal entry was sufficiently attenuated to justify the admission of the statement. Id. at 3a, 22a. After a bench trial in which respondent's station house statement was admitted into evidence, respondent was convicted of second degree murder. 3. The Appellate Division affirmed, Pet. App. 19a-26a, but the New York Court of Appeals reversed, id. at 1a-18a. The Court of Appeals held that respondent's written statement given in the station house should have been suppressed as the fruit of the warrantless entry of his apartment. The Court of Appeals accepted the trial court's conclusion that the entry of respondent's apartment and his arrest were not consensual and therefore violated the rule in Payton v. New York, supra. Accordingly, the court limited its review to the question "whether the causal connection between the illegality and the (station house) confession was attenuated." Pet. App. 2a. To answer that question, the court turned to this Court's decisions in Wong Sun v. United States, 371 U.S. 471 (1963), and Brown v. Illinois, 422 U.S. 590 (1975), which require the suppression of any statement obtained as the fruit of an arrest made without probable cause unless the causal connection between the arrest and the statements is broken. Pet. App. 5a-6a. Under Brown, the court noted, the factors bearing on this determination are the temporal proximity between the arrest and the statement, the existence of intervening events, and the purpose and flagrancy of the police conduct. Pet. App. 6a. The court concluded that none of those factors supported a finding of attenuation here. The repetition in the station house of the Miranda warnings, the court observed, was insufficient standing alone to purge any prior taint. Ibid. The court also found that the police misconduct was "knowing and intentional" because the officers had failed to obtain an arrest warrant despite the opportunity to do so. The court added that one officer had testified that departmental policy was not to obtain warrants before home arrests. From this, the court stated, "a reasonable inference can be drawn * * * that the department's policy was a device used to avoid restrictions on questioning a suspect until after the police had strengthened their case with a confession." Id. at 8a. The court rejected the view that the officers' probable cause to arrest respondent distinguishes this case from other types of illegal arrests. Pet. App. 9a. The court noted that some courts had reasoned that the "wrong in Payton cases * * * lies not in the arrest, 'but in the unlawful entry into a dwelling without proper judicial authorization'" and had therefore declined to suppress confessions that were made following Payton violations. Id. at 10a. The court disagreed with that analysis, however, believing it to be contrary both to Payton itself and to its own decisions, in which it had construed Payton to require the suppression of tangible evidence seized during a warrantless entry of a home to make an arrest. Ibid. The court also stated that this Court's decision in United States v. Johnson, 457 U.S. 537 (1982), foreclosed the argument that statements given after Payton violations should be governed by a different analysis than statements given after an arrest made without probable cause. Pet. App. 10a-11a. Justice Titone concurred on the basis of precedent, but expressed "serious misgivings about the unquestioning use of the Brown analysis in cases involving Payton violations." Pet. App. 11a-12a. He argued that the predicate for applying the attenuation analysis of Brown is that "'the challenged evidence is in some sense the product of illegal governmental activity.'" Id. at 12a, quoting United States v. Crews, 445 U.S. 463, 471 (1980). In cases like Brown, "the 'illegality' is the absence of probable cause and the wrong consists of the police's having control of the defendant's person at the time he made the challenged statement." Pet. App. 12a. Thus, the "'challenged evidence' -- i.e., the post-arrest confession -- is unquestionably 'the product of (the) illegal government activity' -- i.e., the wrongful detention." Ibid. That is not the case, however, when a suspect gives a post-arrest confession following a Payton violation. In such a case, Justice Titone explained, the police have probable cause to arrest and detain a suspect; the only respect in which such an arrest is unlawful is that it was effected improperly by entering the suspect's home without a warrant. Accordingly, "the initial causal relationship between the illegality and the subsequently obtained statement is more dubious," because "it is not the detention itself that is wrongful, but rather the manner in which the arrest was carried out." Ibid. "Although we sometimes use legal shorthand and refer to the police action as an 'illegal arrest,'" he concluded, "the true wrong in Payton cases lies not in the arrest but in the unlawful entry into a dwelling without proper judicial authorization." Ibid. Two justices dissented. Applying the principles of Wong Sun and Brown, they expressed the belief that respondent's statements were the result not of his detention following a Payton violation, but of his own free will untainted by the circumstances of his arrest. Pet. App. 13a-18a. SUMMARY OF ARGUMENT The statement given by respondent at the station house should not have been suppressed as a fruit of the warrantless entry of respondent's apartment. Under Payton v. New York, 445 U.S. 573, 576 (1980), the warrantless entry of a home to effect a routine felony arrest violates the Fourth Amendment. The essence of such a violation, however, lies not in the arrest itself, but in the warrantless invasion of the privacy of the home to effect it. When arresting officers have probable cause, the general Fourth Amendment rule is that no warrant is required to effect a felony arrest. By creating an exception to that general rule, Payton does not purport to protect against the warrantless seizure of the person of the arrestee. Rather, the focus of Payton is on an analytically distinct interest: the protection of the home against warrantless entries. Under this Court's precedents, the appropriate remedy for a Payton violation is therefore to suppress evidence that the officers observe by virtue of their presence in the arrestee's home. It is not appropriate to suppress post-arrest statements that are made by a person who is in lawful custody based on probable cause to believe he has committed a crime. The analysis in this Court's "fruit of the poisonous tree" cases dealing with illegal arrests should not govern here. What is missing is the premise for making a "fruits" inquiry -- that "the challenged evidence is in some sense the product of illegal government activity." United States v. Crews, 445 U.S. 463, 471 (1980). This Court's decisions that inquire whether the taint from an improper arrest has been attenuated all involve arrests that were illegal because the police lacked probable cause. See Wong Sun v. United States, 371 U.S. 471 (1963); Brown v. Illinois, 422 U.S. 590 (1975); Taylor v. Alabama, 457 U.S. 687 (1982). When the police take a person into custody without probable cause based solely on "the hope that something would turn up" during interrogation, Taylor, 457 U.S. at 691, it is proper to consider whether statements given during custody are an "exploitation of the illegality of (the) arrest." Brown, 422 U.S. at 600. By contrast, when there is probable cause for an arrest, and the unlawful act consists only in the entry into the home to effect it, the subsequent detention does not "exploit" the original unlawful entry in any meaningful sense. Admitting post-arrest statements following Payton violations will not undermine the exclusionary rule's goal in deterring warrantless home arrests. Violations of Payton will be adequately deterred by excluding from evidence items that the officers see or seize while they are improperly within the house. Nor must courts engage in an attenuation inquiry in every case involving post-arrest statements following a Payton violation in order to protect against the admission of unreliable evidence. If police officers effect the arrest in an unreasonable manner so as to taint the voluntariness or reliability of the statement, that issue can be addressed under the Fifth Amendment, or as an independent issue under the Fourth Amendment. ARGUMENT STATEMENTS MADE BY A SUSPECT HELD IN CUSTODY BASED ON PROBABLE CAUSE, FOLLOWING THE WARRANTLESS ENTRY OF HIS HOME TO MAKE AN ARREST, SHOULD NOT BE SUPPRESSED A. Payton v. New York, 445 U.S. 573 (1980), Protects Against Warrantless Entries Of A Dwelling, Not Against Warrantless Arrests In Payton v. New York, 445 U.S. 573, 576 (1980), this Court announced the rule that the Fourth Amendment prohibits "a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." The Court began with the premise that "(t)he 'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" 445 U.S. at 573, quoting United States v. United States District Court, 407 U.S. 297, 313 (1972). As applied to a search for tangible items, the Court reasoned, this principle makes a warrantless entry of the home presumptively unreasonable. Id. at 586. The Court found that the same rule applies to a warrantless entry for the purpose of making an arrest. Id. at 588-599. /1/ By requiring a warrant to enter a dwelling for the purpose of making an arrest, the Court in Payton recognized a narrow exception to the general rule that, consistently with the Fourth Amendment, a person may be arrested on probable cause without a warrant. See United States v. Watson, 423 U.S. 411 (1976) (upholding a warrantless arrest in a public place); United States v. Santana, 427 U.S. 38, 42 (1976) (upholding a warrantless arrest on the threshold of a house). "The usual rule is that a police officer may arrest without a warrant one believed by the officer upon reasonable cause to have been guilty of a felony." Carroll v. United States, 267 U.S. 132, 156 (1925); see also Ker v. California, 374 U.S. 23 (1963); Draper v. United States, 358 U.S. 307, 310 (1959). "(A) policeman's on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest." Gerstein v. Pugh, 420 U.S. 103, 113-114 (1975). Because there is no need for a warrant to make an arrest in any place other than the home, Payton is properly understood as safeguarding the privacy of a dwelling against a warrantless entry, rather than protecting the person of the arrestee against a warrantless arrest. /2/ This understanding of Payton is reinforced by the Court's repeated emphasis on the "overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic." 445 U.S. at 601. The Court explained that "the 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." Id. at 590. Nothing in the Court's reasoning, however, suggests that a warrantless arrest within the home somehow invalidates the police custody over the individual when there is probable cause for the arrest. In light of Payton's rationale of protecting the distinct constitutional interest in freedom from warrantless entries into the home, the remedy for a Payton violation is to suppress what the officers see or seize by virtue of their presence in the interior of the home. That rationale of Payton, however, does not require suppression of evidence acquired from a suspect who is properly in custody based on probable cause that he has committed a crime. Such evidence should be viewed not as the consequence of the improper entry that resulted in the arrest, but as a "fruit" of the proper custody in which the arrestee is held as a result of the existence of probable cause. /3/ B. A Confession Following A Payton Violation Is Not The "Fruit" Of An Illegal Arrest This Court has recognized that evidence may not be suppressed unless a court is satisfied that "the challenged evidence is in some sense the product of illegal government activity." United States v. Crews, 445 U.S. 463, 471 (1980). In Crews, the Court refused to suppress a victim's in-court identification despite the defendant's illegal arrest. The Court found, as a threshold matter, that the evidence was not "'come at by exploitation' of * * * the defendant's Fourth Amendment rights," and that it was not necessary to inquire whether the "taint" of the Fourth Amendment violation was sufficiently attenuated to permit the evidence to come in. Ibid. The same conclusion applies to the relationship between an entry of the home to arrest a suspect and his subsequent detention based on probable cause. When a suspect is arrested in his home in violation of Payton, but later gives a statement while in police custody, that statement is not the "product," in the sense meant by Crews, of the prior Fourth Amendment violation. As long as the police have probable cause to make the arrest, the initial entry of the home cannot be characterized as the cause of the arrestee's subsequent custody and his statement made during that custody. Cf. Johnson v. Louisiana, 406 U.S. 356, 365 (1972) (where a magistrate authorizes a suspect's continued detention after his arrest, "the detention * * * (is) under the authority of this commitment," making it irrelevant for purposes of the admissibility of a subsequent lineup whether the initial arrest was unlawful). If the police officers had made a warrantless entry into respondent's home while he was not there, only to arrest him later on the street when he returned, he would have been in precisely the same position as he was in this case. It would make little sense to suppress respondent's station house statement because he was in his apartment when the police arrived, but to have admitted it if he had happened to be absent. In either situation, the same invasion of the home has occurred, and the same result should follow: items seized from the home should be treated as fruits of the entry, but the statements given by respondent at the police station should not. /4/ In excluding respondent's statement at the station house, the Court of Appeals relied on this Court's decisions in Wong Sun v. United States, 371 U.S. 471 (1963), Brown v. Illinois, 422 U.S. 590 (1975), and Taylor v. Alabama, 457 U.S. 687 (1982). These decisions, however, are entirely consistent with the analysis we have suggested; they do not support exclusion of respondent's confession. Wong Sun, Brown, and Taylor stand for the familiar principle that the indirect fruits of an illegal arrest or search should be suppressed when they bear a sufficiently close causal connection to the underlying illegality. See also Dunaway v. New York, 442 U.S. 200 (1979); Rawlings v. Kentucky, 448 U.S. 98, 106-110 (1980); Lanier v. South Carolina, 474 U.S. 25 (1985) (per curiam). These cases, however, consistently treat as an "illegal arrest" one in which the police lack probable cause to detain a suspect. Thus, the police conduct condemned in Brown, Dunaway, and Taylor involved a common pattern that differs in an important respect from the conduct in respondent's case. In each of those cases, "the police arrested suspects without probable cause, * * * transported (them) to police headquarters, * * * and interrogated (them). They confessed within * * * hours of their arrest." Taylor, 457 U.S. at 689-690. The vice of such conduct is the arrest of a suspect on mere suspicion, "in the hope that something would turn up" while the individual is in custody. Id. at 691. Neither respondent's arrest nor any other arrest in violation of Payton is "illegal" in the sense used by those cases. There is no dispute that the police had probable cause to arrest respondent and could lawfully have arrested him without a warrant anywhere but inside his dwelling. Cf. Santana, 427 U.S. at 42 (upholding warrantless arrest of person standing in the doorway of her house). The dangers of the custodial interrogation of a mere suspect, which provoked the Court's concern in Brown, Dunaway, and Taylor, are not present in that setting. C. The Admission Of Statements Given After Warrantless Home Arrests Will Neither Encourage Payton Violations, Nor Permit The Use Of Improperly Obtained Confessions The admission of voluntary confessions in cases involving warrantless home arrests will not undermine the goal of deterring police conduct forbidden by Payton. In any case involving a warrantless entry of a home to effect an arrest, the evidence derived from the officer's unlawful presence in the home can be suppressed as the direct fruit of the unlawful entry. /5/ Thus, what the officers find in the house, in plain view or otherwise, cannot be used in evidence against the arrestee. The exclusion of a confession made by a suspect properly in custody after a probable-cause arrest is unnecessary to promote the policies informing Payton. Nor will the admission of such station house statements result in the use of evidence that lacks reliability or is otherwise the product of unconstitutional behavior. In general, there is no reason to believe that the location of a probable-cause arrest bears any causal relation to the willingness of an arrestee to give a statement during a subsequent detention, or to the trustworthiness of such a statement when it is given. In some cases it may be that the specific manner of effecting the arrest threatens to produce an unreliable statement, because the officers' conduct has an unreasonable propensity to shock or frighten a suspect. Cf. Wong Sun, 371 U.S. at 486. But the Fifth Amendment's requirement of voluntariness protects against the use of such statements. See Oregon v. Elstad, 470 U.S. 298, 308-309 (1985); Orozco v. Texas, 394 U.S. 324 (1969). Moreover, even in Fourth Amendment terms, the issue is properly analyzed by considering the use of excessive force or other particularly unreasonable conduct in making the arrest to constitute an independent Fourth Amendment violation, just as it would if such conduct occurred in an arrest outside the home. See Graham v. Conner, 109 S. Ct. 1865, 1871 (1989); Tennessee v. Garner, 471 U.S. 1 (1985). In respondent's case, there is no basis for concluding that the arrest in his home had any effect on his decision to confess. Respondent admitted the police to his home at 6:30 p.m. after one officer held up his badge to the peephole. He stated that he was glad that the police had come for him. After being read his Miranda rights, respondent acknowledged that he understood them and said he was willing to answer questions. The police then told respondent that they suspected him of murdering Thelma Staton. Respondent poured himself a glass of wine and stated that he had committed the murder. Pet. App. 2a. There is no plausible basis for contending that, apart from the Payton violation, the circumstances of respondent's arrest violated the Fourth or Fifth Amendments and unconstitutionally tainted respondent's subsequent statement at the police station. Accordingly, respondent's statement should not have been suppressed. CONCLUSION The judgment of the New York Court of Appeals should be reversed. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General MICHAEL R. DREEBEN Assistant to the Solicitor General ROBERT J. ERICKSON Attorney JUNE 1989 /1/ Payton involved two consolidated cases in which police officers made warrantless entries into dwellings to make arrests, in reliance on a New York statute authorizing such conduct. In the course of each entry, the police acquired tangible evidence that was later used against the defendants. 445 U.S. at 576-577 (.30-caliber shell casing found in Payton's house); id. at 478 (narcotics and narcotics paraphernalia found in Riddick's house). Neither case involved statements given by an arrestee held in custody following the warrantless entry. Nor did the Court reach the issue of the admissibility of such statements in United States v. Johnson, 457 U.S. 537 (1982), which applied the rule in Payton retroactively. The court of appeals in Johnson had treated statements following an arrest in violation of Payton as the fruit of the entry of the home. 626 F.2d 753, 757-759 (9th Cir. 1980). The government did not challenge that holding in its certiorari petition, and the Court did not discuss the question. 457 U.S. at 541 n.6. /2/ Although the interest in the privacy of the home identified by Payton might logically suggest that a search warrant, rather than an arrest warrant, should be required, the Court stated that an arrest warrant would suffice to authorize entry into the home, because "(i)f there is sufficient evidence of a citizen's participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law." 445 U.S. at 602-603. Cf. Steagald v. United States, 451 U.S. 204 (1981) (police possessing an arrest warrant for an individual may not, without a search warrant, enter the home of a third party to make a routine arrest). /3/ In suppressing respondent's statements, the Court of Appeals failed to recognize that distinction. Similar confusion is manifested by courts that have found a Payton violation when an individual is summoned from his home and then arrested by officers who remain outside the dwelling. See United States v. Morgan, 743 F.2d 1158, 1161 (6th Cir. 1984) (finding Payton violation when police "flooded the house with spotlights and summoned Morgan from his mother's home with the blaring call of a bullhorn"), cert. denied, 471 U.S. 1061 (1985); United States v. Al-Azzawy, 784 F.2d 890, 893 & n.1 (9th Cir. 1986) (finding Payton violation when "the police had completely surrounded appellee's trailer with their weapons drawn and ordered him through a bullhorn to leave the trailer and drop to his knees. * * * (S)ince appellee was in his trailer at the time he was surrounded by armed officers, * * * the arrest occurred while he was still inside his trailer."); United States v. Maez, 872 F.2d 1444 (10th Cir. 1989) (finding Payton violation when several armed officers surrounded a mobile home and over loudspeakers asked the occupants to come out). See also United States v. Davis, 785 F.2d 610, 615 (8th Cir. 1986) (discussing conflicting decisions regarding whether an arrest at the doorway constitutes a "house arrest and is improper"). We believe that these holdings are incorrect. When there is no actual crossing of the threshold of the home, the interests protected by Payton are not implicated and the arrest should be found to be valid under Watson and Santana. /4/ Although respondent gave three statements, the only one before this Court is his written statement dictated at the station house, which the New York Court of Appeals suppressed as a fruit of the Payton violation. The trial court had suppressed the statement respondent made in his apartment when he was arrested. Pet. App. 3a. That statement, however, played no role in the Court of Appeals' holding that all statements following Payton violations must be analyzed for attenuation of taint from the arrest. See Pet. App. 7a (noting, in passing, that respondent's earlier statement was one factor that pointed toward the absence of attenuation from the "illegal" arrest). Accordingly, this case does not present the question whether the first statement was admissible, or the question whether, if the first statement was inadmissible, the second statement should be suppressed as its fruit. Cf. Oregon v. Elstad, 470 U.S. 298, 318 (1985) (a statement given after a suspect's waiver of his Miranda rights is not tainted by an earlier statement given in response to noncoercive, but unwarned, questioning). Compare United States v. Patino, 830 F.2d 1413, 1419-1420 (7th Cir. 1987) (excluding confession found to be the product of an unconstitutional search, and remanding for determination whether second confession was the fruit of that search). If, contrary to the analysis suggested here, the Court should reach the question whether the "taint" of respondent's arrest was attenuated by the time he made the station house statement, we submit that it was. A significant factor in favor of admitting the statement is that the police had probable cause for respondent's arrest and detention. Cf. United States v. Maier, 720 F.2d 978, 980 (8th Cir. 1983) (declining to decide whether there was probable cause for the arrest, because the statements in question were not the fruit of any illegality since they were made "only after intervening events had given police probable cause to arrest Maier"); United States v. Manuel, 706 F.2d 908, 911-912 (9th Cir. 1983) (weighing the formation of probable cause after the arrest but before the interrogation as a factor in finding attenuation). /5/ Of course, there may be some other ground for admitting the evidence under the exclusionary rule. See, e.g., Murray v. United States, 108 S. Ct. 2529, 2533 (1988) (independent source).