Dow: "Step Outside Please"

Step Outside, Please : Warrantless
Doorway Arrests and The Problem of

Constructive Entry
STEVEN B. DOW*
ABSTRACT
The U.S. Supreme Court has established two sets of Fourth

Amendment rules governing felony arrests: one set governs public arrests,
and another set governs in-home arrests. Under United States v. Watson,
police may arrest a suspect in public when there is probable cause to
believe that person has committed a crime; no warrant is required. Under
Payton v. New York, police may not enter a dwelling to carry out a routine
felony arrest without first obtaining a warrant from a judicial official. This
warrant requirement is a manifestation of the heightened level of
protection accorded to individual privacy in a home. With increasing
frequency, some police have evaded the warrant requirement by engaging
in tactics outside a home that coerce a suspect to exit the home in order to
carry out a warrantless public arrest. Courts are deeply divided over
whether this violates the Payton rule. Some lower federal appellate courts
and state courts find a violation of the Fourth Amendment in such tactics
under the doctrine of constructive entry but disagree over the
circumstances in which this doctrine applies. The result is great uncertainty
over this critical Fourth Amendment issue.
In exploring the constructive entry doctrine, this Article analyzes it
within the context of the arrest rules as well as the broader implications of
the Payton decision. It analyzes how the doctrine is linked to and supported
by the nature of individual privacy that is protected under the Fourth
* Steven B. Dow, J.D., Ph.D., Associate Professor, Michigan State University School of
Criminal Justice; Ph.D. 1999, The University of Michigan; M.A. 1989, The University of
Michigan; J.D. 1978, Ohio State University. I would like to thank Linda L. Dow for her
valuable help with editing and proofreading this Article.
7
8 New England Law Review v. 45 | 7
Amendment. The Article also analyzes the link between the doctrine and
the nature of police authority, all within the context of the Supreme Courts
seizure jurisprudence. The Article concludes by urging the Court to
recognize the constructive entry doctrine as an essential component of the
Payton rule, articulate a test for its application, and, most importantly,
recognize the coercive nature of police authority.
INTRODUCTION
The poorest man may in his cottage bid defiance to all the forces of the
Crown. It may be frail; its roof may shake; the wind may blow through
it; the storm may enter; the rain may enter; but the King of England
cannot enterall his force dares not cross the threshold of the ruined
tenement.1
I
t is well established that the Fourth Amendment to the U.S.
Constitution protects privacy in an array of situations. 2 At the same
time, however, the reasonableness concept within the Fourth
Amendment requires a balancing: balancing the privacy interests of
citizens and the interest of the public in effective law enforcement,
including the need to arrest those for whom there is probable cause to
believe have committed a crime. It is also well established that the courts
have afforded a greater level of protection to privacy in ones home than in
other places.3 Current Fourth Amendment jurisprudence offers a number
1 Payton v. New York, 445 U.S. 573, 601 (1980) (quoting William Pitts address to the House
of Commons in March 1763).

2 See, e.g., Roe v. Wade, 410 U.S. 113, 152 (1973); Katz v. United States, 389 U.S. 347, 356-57
(1967); Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965); JOHN E. NOWAK & RONALD D.
ROTUNDA, CONSTITUTIONAL LAW 905-26 (6th ed. 2000); Ken Gormley, One Hundred Years of
Privacy, 1992 WIS. L. REV. 1335, 1357-74; Adina Schwartz, Homes as Folding Umbrellas: Two
Recent Supreme Court Decisions on Knock and Announce, 25 AM. J. CRIM. L. 545, 571 (1998);
Brian J. Serr, Great Expectations of Privacy: A New Model for Fourth Amendment Protection, 73
MINN. L. REV. 583, 589-98 (1989); David A. Sklansky, Back to the Future: Kyllo, Katz, and
Common Law, 72 MISS. L.J. 143, 149-77 (2002).
3
See, e.g., Kyllo v. United States, 533 U.S. 27, 40 (2001); United States v. Dunn, 480 U.S. 294,
304-05 (1987); Oliver v. United States, 466 U.S. 170, 184 (1984); Payton v. New York, 445 U.S.
573, 576 (1980); Evan B. Citron, Say Hello and Wave Goodbye: The Legitimacy of Plain View
Seizures at the Threshold of the Home, 74 FORDHAM L. REV. 2761, 2779-82, 2798 (1996); Harry T.
Edwards, To Err Is Human, But Not Always Harmless: When Should Legal Error Be Tolerated?, 70
N.Y.U. L. REV. 1167, 1197-98 (1995); Jennifer Marino, Does Payton Apply?: Absent Consent or
Exigent Circumstances, Are Warrantless, In-Home Police Seizures and Arrests of Persons Seen
Through an Open Door of the Home Legal?, 2005 U. CHI. LEGAL F. 569, 572; Schwartz, supra note 2,
at 571-78. Professor Schwartz argues that the Supreme Court traditionally depicted the home
as a symbol of privacy interests that all people share but that a trend of lowering the level of
2010 Wa r r a n t l e s s A r r e s t s a n d C o n s t r u c t i v e E n t r y 9
of examples of courts giving heightened protection to peoples privacy

within the home compared to the protection accorded to people in public
spaces.4 One important, and ultimately problematic, example is the legal
doctrine governing arrest for a felony. In a public setting, the rules of
felony arrest favor the police, who may arrest someone in public when
there is probable cause to believe that the person committed a crime. In a
public setting, probable cause is the only requirement; that is, courts do not
require a warrant for such an arrest to be reasonable. 5 The police officer
makes the initial determination of probable cause, and if that evidentiary
standard is satisfied, an arrest is permitted. 6 A public arrest does not
violate privacy rights because any existing privacy in public is minimal.
The publics interest in effective law enforcement, which here supports
publicly arresting people suspected of committing a crime, easily
outweighs the individuals privacy rights.
Within the much more private setting of a dwelling, the balance shifts
significantly away from the police and toward the individual occupants. In
the home, privacy rights are afforded an extremely high level of protection.
The right to be secure in ones own home is often described by the courts as
resting at the very core of the Fourth Amendment. 7 In United States v.
U.S. District Court, the Supreme Court stated that *p+hysical entry of the
home is the chief evil against which the wording of the Fourth Amendment
is directed.8 The Court has established that a warrantless entry into a
dwelling is per se unreasonable and, therefore, a violation of the Fourth
protection of privacy in the home is currently underway. Id. at 567. The significance of Katz v.
United States in Fourth Amendment jurisprudence should be noted. 389 U.S. 347 (1967). In
Katz, the Court stated that the Fourth Amendment protects people, not places in holding
that conversations within a public telephone booth are private and protected. Id. at 351. But
this decision does not make place irrelevant for purposes of Fourth Amendment analysis,
because the level of protection afforded to people varies depending on the place in which a
person is located. See id.
4 See, e.g., Kyllo, 533 U.S. at 40.
5See United States v. Watson, 423 U.S. 411, 423-24 (1976). For a more detailed discussion of
public arrest, see infra notes 20-22, 71 and accompanying text.
6 See Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 47-48 (1991). In a case where a police
officer makes an arrest without a warrant, a judge must make an independent determination
of probable cause shortly after the arrest and typically within forty-eight hours. Id. at 56-57. Of
course, during this delay period the arrestee might be incarcerated. See id. at 58.
7 Silverman v. United States, 365 U.S. 505, 511-12 (1961).
8 United States v. U.S. Dist. Court, 407 U.S. 297, 313 (1972). The Seventh Circuit noted,
there is no place where a persons expectation of privacy is greater than in his own home.
United States v. Berkowitz, 927 F.2d 1376, 1387 (7th Cir. 1991).
Amendment.9 As a result of this heightened level of protection for the

occupants of a dwelling, the rules for an in-home felony arrest are very
different from those that govern a public arrest. Not only is probable cause
necessary, but the rule from Payton v. New York states that, absent exigent
circumstances, the police must obtain an arrest warrant from a judicial
official before entering a dwelling to make an arrest. 10 This means that a
judge or magistrate, not the police, must determine whether the evidence
against the suspect is sufficient to establish probable cause. 11 With both
public arrests and in-home arrests there is a seizurethe arrest itself. And
both types of arrests require probable cause. A warrant is required for an
in-home arrest but not for a public arrest because of the different levels of
protection for privacy in each case.
With increasing frequency, some police have undermined the Payton
rule by evading the warrant requirement. This occurs when police engage
in tactics that coerce a suspect to exit the dwelling in order to carry out a
warrantless public arrest.12 Courts are deeply divided over whether this
violates the Fourth Amendment.13 Some courts take a very narrow reading
9 Coolidge v. New Hampshire, 403 U.S. 443, 474-75 (1971). This per se rule is subject to two
exceptions: entry based on consent and entry based on exigent circumstances. Id. at 465-66.
10 Payton v. New York, 445 U.S. 573, 590 (1980). See, e.g., Coolidge, 403 U.S. at 489-90
(holding that the warrant requirement is excused when there are exigent circumstances); see
also United States v. Mowatt, 513 F.3d 395, 399 (4th Cir. 2008) (holding that police officers
cannot rely on exigent circumstances as an excuse for absence of a warrant when those
circumstances were created by the police officers); Hardesty v. Hamburg Twp., 461 F.3d 646,
656 (6th Cir. 2006); United States v. Beaudoin, 362 F.3d 60, 66-67 (1st Cir. 2004); Bryan M.
Abramoske, It Doesnt Matter What They Intended: The Need for Objective Permissibility Review of
Police-Created Exigencies in Knock and Talk Investigations, 41 SUFFOLK U. L. REV. 561, 561-62
(2008).
11 Johnson v. United States, 333 U.S. 10, 13-14 (1948); Jack E. Call, The Constitutionality of
Warrantless Doorway Arrests, 19 MISS. C. L. REV. 333, 340 (1999) (discussing the purpose of the
warrant requirement and arguing for a rule that enhances the incentives for the police to
obtain a warrant); Nathan Vaughan, Overgeneralization of the Hot Pursuit Doctrine Provides
Another Blow to the Fourth Amendment in Middletown v. Flinchum, 37 AKRON L. REV. 509, 516
(2004); Marino, supra note 3, at 571. In addition to obtaining a warrant based on probable
cause, the police must have a reasonable belief that the suspect is at home before entering that
home to carry out the arrest. United States v. Taylor, 497 F.3d 673, 678 (D.C. Cir. 2007); People
v. Aarness, 150 P.3d 1271, 1274 (Colo. 2006); Matthew A. Edwards, Posners Pragmatism and
Payton Home Arrests, 77 WASH. L. REV. 299, 302-03 (2002).
12 See infra notes 69, 77-80, 86-113, 171-211 and accompanying text.
13 Courts are also conflicted over a related issue: whether the police may coerce an
occupant to open the exterior door and then arrest him while he is standing in the doorway,
as it is unclear whether a doorway is a public space. See generally, Call, supra note 11
(discussing warrantless doorway arrests). The present Article focuses on the legal implications
of whether the occupant was coerced to stop what they were doing before the police arrived,
of Payton and permit these tactics as long as the police do not physically
enter the dwelling.14 Other courts see that such tactics can be as intrusive as
an actual physical entry and, under the doctrine of constructive entry, are
willing to find a Payton violation in such a case.15 But even the courts that
recognize the doctrine of constructive entry differ over the circumstances
in which it applies.16 The result is a significant conflict among the federal
circuit courts of appeal and state high courts over whether to recognize the
doctrine and when to apply it.17 Notwithstanding the importance of this
issue to Fourth Amendment jurisprudence, there has been a significant lack
of scholarly attention to it. Although the issue has been looked at indirectly
in the literature that deals with doorway confrontations, law journals have
neglected to focus on the issue.18 The lack of scholarly attention on the issue
of constructive entry may contribute to the unfortunate absence of
knowledge of the topic (and potential malpractice) on the part of lawyers. 19
This Article will emphasize the significance of constructive entry
jurisprudence in future Fourth Amendment analysis. Part I of this Article
will address the Fourth Amendment doctrines of public arrests and in-
home arrests. Part II will explore the conflicting interpretations of the
Payton rule among the lower courts and argue that a broad interpretation
of the rule, which is consistent with the U.S. Supreme Courts Fourth
Amendment decisions, is the foundation of the constructive entry doctrine.
Part II.A will analyze how the doctrine is linked to and supported by the
nature of privacy that is protected under the Fourth Amendment. Part II.B
will analyze the link between the doctrine and the nature of police
authority, all within the context of the Supreme Courts seizure
jurisprudence. Part III of this Article will discuss the disarray among courts
over the circumstances in which the doctrine should apply. Part IV
open the door, and stand in the doorway or exit the dwelling.
14 See infra notes 75-82 and accompanying text.
15 See infra notes 100-18, 172-212 and accompanying text.
16 See infra notes 172-212 and accompanying text.
17 See infra notes 100-18, 164-217 and accompanying text.
18 See, e.g., Abramoske, supra note 10, at 657-69; Edward H. Arens, Armed Standoffs and the
Warrant Requirement, 59 HASTINGS L.J. 1517, 1535 n.191 (2008); Craig M. Bradley, Knock and
Talk and the Fourth Amendment, 84 IND. L.J. 1099, 1105, 1118 (2009); Call, supra note 11, at 337;
Citron, supra note 3, at 2779-82, 2798; Marino, supra note 3, at 572; H. Morley Swingle & Kevin
M. Zoellner, Knock and Talk Consent Searches: If Called by a Panther, Dont Anther, 55 J. MO. B.
25 (1999).
19 See, e.g., Boykin v. Van Buren Twp., 479 F.3d 444, 450 n.2 (6th Cir. 2007) (suggesting that
the plaintiff had a valid constructive entry claim, but his lawyers failure to raise it at the trial
court level resulted in a waiver).
explores the coerciveness of a show of police authority and how potential

criminal liability under obstruction-of-justice and failure-to-comply
statutes makes doorway encounters with the police legally precarious for
citizens. The Article concludes by urging the Court to recognize the
constructive entry doctrine as an essential component of the Payton rule,
articulate a test for its application, and, most importantly, recognize the
coercive nature of police authority.
I. The Fourth Amendment, the Payton Rule, and Limits on Entry
The different rules of arrestone for public arrests and the other for
arrests inside a homewere not crafted simultaneously. In United States v.
Watson, the Court upheld a warrantless midday public arrest largely on
the strength of the common law precedent.20 This rule remains in effect
today.21 However, the Watson decision expressly left open the issue of in-
home arrests, which the Court squarely confronted later in Payton v. New
York, the leading case on the doctrine of in-home warrantless arrests.22 The
Payton opinion addressed two separate appeals;23 one was the case of People
v. Payton,24 and the other was the case of People v. Riddick.25 Both involved
nonconsensual warrantless entries into homes. In Payton, New York
detectives investigating the murder of a gas station manager gathered
evidence sufficient to establish probable cause to believe that Payton was
the perpetrator.26 Without attempting to obtain a warrant, six officers
went to Paytons apartment . . . intending to arrest him.27 When there was
no response to their knock on the door, the officers called for assistance
and broke into the apartment with crowbars. They did not find anyone in
the apartment, but they found, in plain view, evidence that was later used
20 United States v. Watson, 423 U.S. 411, 414-24 (1976); see generally Call, supra note 11, at
333; Marino, supra note 3, at 569, 574.
21 See Payton v. New York, 445 U.S. 573, 574 (1980).
22Id. at 574-75. For a discussion of Watson and Payton see for example, 3 WAYNE R. LAFAVE,
SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT 6.1(a)-(b) (2004); Call, supra
note 11, at 333-34; Citron, supra note 3, at 2782-84; Marino, supra note 3, at 569, 576-79;
Vaughan, supra note 11, at 517 n.70.
23 Payton, 445 U.S. at 576-82.
24 See People v. Payton, 390 N.Y.S.2d 769 (App. Div. 1976), affd, 380 N.E.2d 224 (N.Y. 1978)
(revd, 445 U.S. 573 (1980)).
25 People v. Riddick, 392 N.Y.S.2d 848 (App. Div. 1977), affd, 380 N.E.2d 224 (N.Y. 1978),
revd sub nom, Payton v. New York 445 U.S. 573 (1980).
26 Payton, 445 U.S. at 576.
27 Id.
against Payton in his murder trial.28 The trial judge rejected an effort by
Paytons lawyer to suppress the evidence, holding that the warrantless
and forcible entry was authorized by state statute and that the seizure of
evidence was proper under the plain-view rule.29
In Riddick v. New York, four officers went to Riddicks house without
first attempting to obtain a warrant and knocked on the door. When his
young son answered the door, the officers looked into the house, saw
Riddick sitting on a bed, and then entered the house and arrested him.
Searching a nearby chest of drawers, the officers found illegal drugs and
drug paraphernalia.30 The trial judge rejected an effort by Riddicks lawyer
to suppress the evidence, holding that warrantless entry was permitted by
the state statute, and the search was permitted as a search incident to a
lawful arrest.31
The Court of Appeals of New York upheld the convictions in both
cases under the state statute that permitted entries for the purpose of
warrantless arrest under the same circumstances as an arrest pursuant to
an arrest warrant.32 The court upheld the state statute on the authority of
United States v. Watson, concluding that an in-home arrest and a public
arrest are similar enough to justify treating them the same. 33 That court also
explained that inasmuch as an entry into a home for the purpose of arrest is
much less intrusive into the privacy of the home than an entry for the
purpose of conducting a search, the former is justified on the same grounds
as a public arrest.34 In addition, the court looked at the status of this
practice at common law, current practices in other states, and statutory
support in other states, and then concluded that all of these supported
permitting warrantless entry into a home for routine felony arrests. 35
In a six-to-three decision, the U.S. Supreme Court reversed the Court of
Appeals of New York and held that the Fourth Amendment prohibits the
police from making a warrantless and nonconsensual entry into a suspects
28 Id. at 576-77. For a discussion of the plain view rule, see Arizona v. Hicks, 480 U.S. 321,
325-29 (1987); Coolidge v. New Hampshire, 403 U.S. 443, 464-73 (1971).
29 Payton, 445 U.S. at 577.
30 Id. at 578.
31 See id. at 578-79 (citing Chimel v. California, 395 U.S. 752 (1969)).
32See People v. Payton, 380 N.E.2d 224, 230 n.3 (N.Y. 1978); Payton, 445 U.S. at 578 n.9; NEW
YORK CRIM. PROC. LAW 120.80, 140.15(4) (McKinney 1971).
33 Payton, 380 N.E.2d at 228-29.
34 See id.
35 Id. at 310-13.
home in order to make a routine felony arrest. 36 The importance of this

decision calls for a careful analysis of it. Writing for the majority, Justice
John Paul Stevens disagreed with not only the New York courts
conclusion, but with every point of its rationale as well. He stated that
under the broad language of the Fourth Amendment, the warrantless
arrest of a person is a species of seizure required by the Amendment to be
reasonable.37 Inasmuch as the protections provided by the Amendment
apply equally to seizures of persons and to seizures of property,38 he
stated that the analysis in this case may . . . properly commence with rules
that have been well established in Fourth Amendment litigation involving
tangible items.39 With respect to this line of Fourth Amendment cases,
Justice Stevens drew a clear distinction between seizures of objects such as
weapons or contraband in a public place and searches and seizures inside
a home.40 With respect to the former, it is well settled that such seizures
are permitted without a warrant. 41 The seizure of property in plain view
involves no invasion of privacy and is presumptively reasonable . . . .42 On
the other hand, the rules with respect to searches and seizures inside a
home are the polar opposite.43 It is a basic principle of Fourth
Amendment law that searches and seizures inside a home without a
warrant are presumptively unreasonable.44 The existence of probable
cause to believe that items to be seized are in a home does not change this
result.45 Thus, contrary to the state court, the Supreme Court held that
36 Payton, 445 U.S. at 576.

37 Id. at 585.
38 Id.
39 Id.
40 Id. at 587.
41 Id. at 586-87.
42 Payton, 445 U.S. at 587.
43 Id.
44Id. at 586 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 477-78 (1971)). The Coolidge
Court noted:
*i+t is clear, then, that the notion that the warrantless entry of a mans
house in order to arrest him on probable cause is per se legitimate is in
fundamental conflict with the basic principle of Fourth Amendment law
that searches and seizures inside a mans house without warrant are per
se unreasonable in the absence of some one of a number of well defined
exigent circumstances.
Coolidge, 403 U.S. at 477-78 (emphasis omitted).
45 Payton, 445 U.S. at 588-89 (discussing Dorman v. United States, 435 F.2d 385 (D.C. Cir.
searches and seizures of tangible items inside a home are very different
from seizures in public.46
Justice Stevens then considered whether this distinction should hold
for the seizure of a person. He stated that this distinction has equal force
when the seizure of a person is involved 47 and then discussed the opinion
in Dorman v. United States,48 in which Judge Harold Leventhal concluded
that an entry to arrest and an entry to search for and to seize property
implicate the same interest in preserving the privacy and sanctity of the
home, and justify the same level of constitutional protection. 49 The entry
to arrest implicates the same privacy interest as an entry to search for
property because the entry to arrest may involve a search for the suspect
and an invasion of the sanctity of the home. 50 With respect to the view of
the New York Court of Appeals that there is a substantial difference
between the intrusiveness of an entry to search for and seize property and
an entry to search for and seize a person, Justice Stevens concluded that
any differences are more theoretical than real, . . . merely ones of degree
rather than kind.51 Both involve the breach of the entrance to an
individuals home.52 This is the key reason that warrantless in-home
arrests are treated differently than warrantless public arrests but are
treated the same as warrantless searches of a home for goods. Privacy
within a home enjoys a special status under the Fourth Amendment. Based
on the clear and specific language of the Fourth Amendment,53 the home
is the most clearly defined zone of privacydelineated by the
unambiguous physical dimensions of an individuals home. 54 This firm
line at the entrance to the house, the threshold, delineates that zone.55
1970)); Jones v. United States, 357 U.S. 493, 497-98 (1958) (It is settled doctrine that probable
cause for belief that certain articles subject to seizure are in a dwelling cannot itself justify a
search without a warrant.); Agnello v. United States, 269 U.S. 20, 33 (1925).
46 Payton, 445 U.S. at 587.
47 Id. (citing Dorman, 435 F.2d at 389).
48 Dorman, 435 F.2d at 385.
49 Payton, 445 U.S. at 588; see Call, supra note 11, at 333.
50 Payton, 445 U.S. at 589 (quoting United States v. Reed, 572 F.2d 412, 423 (2d Cir. 1978)
cert. denied sub nom. Goldsmith v. United States, 439 U.S. 913 (1978)).
51 Payton, 445 U.S. at 589.
52 Id.
53 Id. at 589 (The right of the people to be secure in their . . . houses . . . shall not be
violated.).
54 Id.
55 Id. at 590.
The breach of this linethe entrance to a homeis the paradigmatic

violation of the privacy right embodied in the Amendment. At the very
core [of the Fourth Amendment] stands the right of a man to retreat into
his own home and there be free from unreasonable governmental
intrusion.56 In the absence of exigent circumstances, this right is violated
when that line is crossed without a warrant, whether the entry is to search
for and seize items or to seize an occupant.57
The opinion then addressed the other reasons the New York Court of
Appeals offered in support of extending the holding in Watson to the facts
in Payton. Specifically, the Court discussed common-law rules regarding
the validity of warrantless public arrests with probable cause and a
consensus among Congress and a clear majority of states adhering to that
rule.58 After a detailed analysis of common-law decisions and commentary,
Justice Stevens concluded that the necessary level of support for the rule in
Watson is not present regarding warrantless entries. 59 He noted an absence
of authoritative case law and sharp disagreement among the common law
commentators on this issue.60 While the common law supports the holding
in Watson, it does not support warrantless entries for the purpose of arrest.
The issue was not well settled at the time the Fourth Amendment was
adopted. If anything, the sharp disagreement strongly suggests that the
prevailing practice was not to make such arrests except in hot pursuit or
when authorized by a warrant. 61
With respect to the positions of the various states on warrantless entry
for routine arrests absent exigent circumstances, Justice Stevens wrote that
a clear majority of states (twenty-four) permit such entries. Fifteen states
56 Id. at 589-90 (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)) (internal
quotation marks omitted).

57 Payton, 445 U.S. at 589-90. Some consideration should be given to the consequences of a
Payton violation. This issue was addressed in New York v. Harris. 495 U.S. 14 (1990). In Harris,
the Court held that in a case where police violate the Payton rule, evidence found and
statements made inside the home are inadmissible under the exclusionary rule. Id. at 17.
However, when the police have prior probable cause to arrest, statements outside a dwelling
should not be excluded. Id. The Court opined that this approach would provide sufficient
incentive to adhere to the Payton rule. Id. The problem is that if a constructive entry is found to
be a violation of Payton, statements made outside the dwelling prior to or following an arrest,
would seem to be admissible under Harris. Id. at 17-18. The Court should reconsider this issue
in conjunction with the constructive-entry issue.
58 Payton, 445 U.S. at 590.
59 Id. at 592-97.
60 Id. at 592-93, 596.
61 Id. at 598.
prohibit the practice,62 with the remaining states taking no position on the
issue.63 He also went on to note that while these numbers show that a
majority of states still permit the practice, they reflect a significant decline
during the last decade in the number of States that do so.64 Finally, Justice
Stevens observed that when the practice has been challenged on the Fourth
Amendment issue, only two states have upheld it.65 He concluded that the
declining support in the states for warrantless entries falls far short of the
virtual unanimity of state support relied on in Watson to uphold the
practice of warrantless public arrest.66
One additional factor in Watson that the New York Court of Appeals
relied on to uphold the practice challenged in Payton was congressional
support in the form of statutes conferring arrest powers on federal agents. 67
Justice Stevens wrote that none of the federal statutes that were cited in
support of the holding in Watson provide any support for the practice
challenged in Payton.68
At the conclusion of the opinion, Justice Stevens addressed the specific
constitutional limitations on entries for purposes of arrest. Having already
held that, absent the presence of exigent circumstances, police may not
enter a home for purposes of routine arrest without a warrant, 69 Justice
Stevens considered the issue of the type of warrant that must be obtained;
specifically, whether an arrest warrant provides adequate protection for
the occupants of a home. He noted that, while an arrest warrant may
afford less protection than a search warrant, 70 the constitutional
requirement of obtaining a magistrates probable cause determination to
issue an arrest warrant,71 coupled with the understanding that the arrest
warrant authorizes entry into the home in which the suspect lives when
62 Id. at 598-99.
63 Id. at 599.
64 Payton, 445 U.S. at 599-600.
65 Id. at 600.
66 Id.
67 See United States v. Watson, 423 U.S. 411, 415 (1975).
68 Payton, 445 U.S. at 601.
69 Id. at 590.
70 Id. at 602.
71 As early as 1948, in Johnson v. United States, the Court insisted that the evaluation of the
evidence and the inferences drawn from that evidence should be done by a neutral and
detached magistrate. 333 U.S. 10, 14 (1948). Exceptions are recognized in cases where exigent
circumstances are present. Id.; see Brigham City v. Stuart, 547 U.S. 398, 403 (2006); Welsh v.
Wisconsin, 466 U.S. 740, 750-51 (1984).
there is reason to believe the suspect is within *that home+, provides the
occupants with adequate protection.72 Limiting police entry to a time when
there is reason to believe the suspect is present would prevent the police
from using the arrest warrant to forcibly enter any home they choose on
the chance that the suspect might happen to be inside. 73
From the foregoing discussion, it is clear that there are two
fundamentally different sets of rules governing arrests under the Fourth
Amendment. Watson governs arrests in public spaces. Payton governs in-
home arrests. Under the Payton rule, in the absence of consent or exigent
circumstances, police may not enter a dwelling without a warrant to make
a routine felony arrest.74 This distinction explains why the police have an
incentive to get a suspect inside a dwelling to exit that dwelling in order to
make a public arrest; it obviates the need to obtain a warrant. In a case
where this police action, taking place outside of the dwelling, might be
coercive, we must ask whether such action violates the Payton rule.
Justice Stevenss references to the unambiguous physical dimensions
of an individuals home, the firm line at the entrance to the house, and
the threshold75 of the house all point to the key factor distinguishing
Payton from Watson and treating warrantless in-home arrests just like
warrantless searches of a home for goods. At the same time, however, the
concept expressed in these referencesthe line that constitutes the
physical dimensions of a homeis an important part of the legal
uncertainties that surround the central topic of this Article: constructive
entries.76
II. An Overview of the Payton Rule and Constructive Entries
Some courts see the Payton rule as being fairly narrow, directed
primarily at warrantless physical intrusion into the home.77 These courts
72 Payton, 445 U.S. at 603. With an arrest warrant, officers may enter if they have reasonable
belief that a suspect lives there and is currently within the dwelling the police wish to enter.
United States v. Taylor, 497 F.3d 673, 678 (D.C. Cir. 2007); People v. Aarness, 150 P.3d 1271,
1274 (Colo. 2006).
73 Taylor, 497 F.3d at 679.
74 Payton, 445 U.S. at 590; Welsh, 466 U.S. at 753-54.
75 Payton, 445 U.S. at 589-90.
76 Id.
77 United States v. Gori, 230 F.3d 44, 51 (2d Cir. 2000). The Fifth, Seventh, and Eleventh
Circuits declined to adopt the constructive entry doctrine. See Knight v. Jacobson, 300 F.3d
1272, 1277 (11th Cir. 2002); United States v. Berkowitz, 927 F.2d 1376, 1386 (7th Cir. 1991);
United States v. Carrion, 809 F.2d 1120, 1128 (5th Cir. 1987); see also Gori, 230 F.3d at 52
focus their attention on the line that constitutes the physical dimensions
of the home. They find a Payton violation when the police cross this line
through a warrantless physical entry into the dwelling,78 unless exigent
circumstances are present.79 For these courts, so long as the police do not
cross this line, there is no violation of the Payton rule. This permits the
police to engage in a variety of actions outside of the dwelling that are
intended to coerce an occupant to leave the zone of privacy within the
dwelling and enter public space,80 allowing the police to make a public,
warrantless arrest. For example, in the case of Knight v. Jacobson, decided by
the Eleventh Circuit Court of Appeals in 2002, an officer approached the
plaintiffs apartment at 2:00 a.m. and knocked on the door.81 When the
plaintiff opened the door, the officer told him to step outside, and, when he
did so he was arrested.82 The court found that there was no Payton violation
because the plaintiff was arrested outside his home.83 The court reasoned
that the Payton decision drew a firm line at the entrance, and, since the
officer never crossed that line, there was no violation. The Payton rule
keeps the officers body outside the threshold, not his voice.84
At this point in the development of Fourth Amendment jurisprudence,
it is difficult to understand how these courts can maintain such a narrow
(finding no Payton violation without physical entry). Some state courts have taken the same
position. See People v. Gillam, 734 N.W.2d 585, 589-90 (Mich. 2007); State v. Jellum, C3-92-
1861, 1993 Minn. App. LEXIS 731, at *6 (July 14, 1993). It should be noted that while some
courts have not recognized the constructive entry doctrine expressly, they employ essentially
the same analysis using a different rubric. See, e.g., United States v. Beaudoin, 362 F.3d 60, 67
(1st Cir. 2004) (analyzing a doorway confrontation under Terry v. Ohio, 392 U.S. 1, (1968));
United States v. Jerez, 108 F.3d 684, 689 (7th Cir. 1997).
78 See, e.g., Knight, 300 F.3d at 1277; Berkowitz, 927 F.2d at 1386; Carrion, 809 F.2d at 1128.
Courts refuse to find a Payton violation when the occupant consented to exit the dwelling. See,
e.g., Gillam, 734 N.W.2d at 592 (Mich. 2007).
79 See, e.g., Hardesty v. Hamburg Twp., 461 F.3d 646, 656 (6th Cir. 2006); Ewolski v. City of
Brunswick, 287 F.3d 492, 501 (6th Cir. 2002).

80 The language in the text was used instead of a more common expression such as exit the
dwelling because there is some dispute among judges over the location of the boundary
between the private and the public. Exiting a dwelling suggests moving from the interior of
the dwelling, across the threshold, and into public space outside; however, not all courts see
the threshold as synonymous with the boundary between the private and the public. Some
courts find this boundary to be inside the threshold. See, e.g., United States v. Vaneaton, 49
F.3d 1423, 1427 (9th Cir. 1995).
81 Knight, 300 F.3d at 1274 (involving a suit against a police officer brought under 42 U.S.C.
1983 (1996)).
82 Id.
83 Id. at 1277.
84 Id.
view of the Payton decision. The Payton Court emphasized the violation of
the physical line that marks the homes boundary in order to bring that
action within the scope of Fourth Amendment violations, but in no way
did the Court suggest that this line marks the limit of Fourth Amendment
protections.85 At one point the Courts Fourth Amendment jurisprudence
was tied to common-law trespass,86 but for more than half a century the
Court has made it clear that *i+nherent Fourth Amendment rights are not
inevitably measurable in terms of ancient niceties of tort or real property
law.87 More recently, the Court has expressly decoupled violation of a
persons Fourth Amendment rights from trespassory violation of his
property.88 Any lingering doubts about whether Fourth Amendment
privacy rights stop at the physical line that marks a homes boundaries
should have come to an end with the Courts 2001 decision in Kyllo v.
United States.89 Although that case dealt with a search rather than a seizure,
the opinion by Justice Antonin Scalia makes clear the need to protect
Fourth Amendment privacy from being eroded by the use of police
technology.90 Typically, the tactics the police use to coerce someone to exit
a dwelling are low tech, including pointing weapons at the dwelling,91
shining spotlights at the dwelling,92 shining flashlights into the windows,93
and using voice amplification systems.94 The tactics may escalate to the
level of parking an armored vehicle on the front lawn.95 In some cases there
is no technology; the police simply shout or pound on the door. 96 But as
Justice Scalia wrote in Kyllo, we must take the long view, from the original
meaning of the Fourth Amendment forward. 97 For example, a
technological device currently available uses extremely high-decibel sound
waves at moderate distances, causing excruciating pain and possible
85 See supra Part 0.

86 Kyllo v. United States, 533 U.S. 27, 31 (2001).
87 Silverman v. United States, 365 U.S. 508, 511 (1961).
88 Kyllo, 533 U.S. at 32 (citing Rakas v. Illinois, 439 U.S. 128, 143 (1978)).
89 See id. at 40-41; Citron, supra note 3, at 2785.
90 See Kyllo, 533 U.S. at 33-34; Citron, supra note 3, at 2785.
91 See, e.g., United States v. Maez, 872 F.2d 1444, 1447 (10th Cir. 1989).
92 United States v. Morgan, 743 F.2d 1158, 1161 (6th Cir. 1984).
93 United States v. Jerez, 108 F.3d 684, 691-92 (7th Cir. 1997).
94 Maez, 872 F.2d at 1447.
95 Ewolski v. City of Brunswick, 287 F.3d 492, 499 (6th Cir. 2002).
96 See, e.g., Jerez, 108 F.3d at 691-92.
97 Kyllo v. United States, 533 U.S. 27, 32 (2001).
deafness to targeted people. One such device, known as the Long Range
Acoustic Device, or L.R.A.D., was first developed for military use and has
been used recently and successfully by cruise ship staff and other seagoing
vessels to repel pirate attacks.98 It has also been used by American police
agencies for crowd control and armed standoff situations.99 It is
reasonable to expect that, before long, such a device will become widely
used by police in more routine doorway confrontations.100 One can imagine
that other technologies are being developed that can remotely inflict
extreme pain and injury on a person using sound, heat, or radiation. Courts
that continue to permit any coercive police actions so long as they do not
physically cross the line that marks the homes boundary will leave the
homeowner at the mercy of advancing technology.101
Beginning in 1984, some courts found a Payton violation when the
police engage in conduct outside a dwelling that coerces an occupant to
leave the zone of privacy and move into public space, even though these
actions take place entirely outside of the dwelling.102 Although there is no
actual, physical entry of the dwelling in these cases, the courts note that the
police conduct accomplished the same thing103 and has the same effect as
98 American Technology Corp. Long Range Acoustic Device, DEFENSE-UPDATE.COM, http://defe

nse-update.com /products/l/LRAD.htm (last updated Aug. 5, 2006); Kristin Atwater, Targeted
Sound Blaster Becomes Law Enforcement Weapon, GOVPRO.COM (Mar. 17, 2008, 12:00 AM),
http://govpro.com/technology/telecommunications/gov_ imp_79144; Marco Evers, Sonic Canon
Gives Pirates an Earful, SPIEGEL ONLINE (Nov. 15, 2005), http://www.spiegel.de/internat
ional/spiegel/0,1518,385048,00.html.
99
Atwater, supra note 98; Amanda Onion, RNC to Feature Unusual Forms of Sound, ABC
NEWS (Aug. 25, 2004), http://abcnews.go.com/Technology/story?id=99472&page=1.
100 Atwater, supra note 98 (LRADs sound blasts could be used on a barricaded and armed
suspect who refuses to surrender.). There is no technological reason why this device could
not also be used on an unarmed occupant of a dwelling who refuses to step outside. Id.
101 Kyllo, 533 U.S. at 35.
102 At the federal appellate level, the doctrine is expressly recognized by the Sixth, Ninth,
and Tenth Circuit Courts. See, e.g., Fisher v. City of San Jose, 475 F.3d 1049, 1065-66 (9th Cir.
2007); United States v. Saari, 272 F.3d 804, 808 (6th Cir. 2001); United States v. Maez, 872 F.2d
1444, 1447 (10th Cir. 1989). A few state courts took the same position. See, e.g., State v. Maland,
103 P.3d 430, 434-35 (Idaho 2004). Some courts adopted the doctrines substance but without
using the constructive entry terminology. See, e.g., Sharrar v. Felsing, 128 F.3d 810, 820 (3d
Cir. 1997). Some courts took the same Fourth Amendment seizure analysis used by courts that
recognize constructive entry but did so under the rubric of a stop as governed by Terry v.
Ohio. See, e.g., United States v. Beaudoin, 362 F.3d 60, 65 (1st Cir. 2004); United States v. Jerez,
108 F.3d 684, 690 (7th Cir. 1997). However, in some cases the governments attempt to
characterize a constructive entry case as an investigative stop governed by Terry is rejected by
the court. See, e.g., Saari, 272 F.3d at 805-06.
103 United States v. Morgan, 743 F.2d 1158, 1166 (6th Cir. 1984).
an actual entry.104 Accordingly, many of the courts that accept this view use
the term constructive entry to describe this situation.105 The cases that
give rise to a constructive entry issue typically rise out of confrontations at
or near the doorway to a dwelling.106 The suspect is an occupant of a
dwelling.107 Officers approach and while outside the dwelling engage in a
variety of actions that are intended to coerce the occupant to leave the zone
of privacy within the dwelling and enter the public space, 108 at which point
the police are able to make a public, warrantless arrest. 109 A good example
of such a case is United States v. Saari,110 decided by the Sixth Circuit Court
of Appeals in 2001. In this case, four police officers went to the defendants
apartment and approached the outside of the only door with their guns
drawn. An officer knocked forcefully on the door and identified the group
as police. When the defendant opened the door, the officers pointed their
guns at him and ordered him to exit the apartment with his hands in the
104 These courts find that the lack of physical entry is not dispositive. Maez, 872 F.2d at
1451. For these courts, it is the location of the seized person, not the location of the officers,
that determines whether the seizure occurred within the dwelling. Id.; United States v. Al-
Azzawy, 784 F.2d 890, 892 (9th Cir. 1985); United States v. Johnson, 626 F.2d 753, 757 (9th Cir.
1980), affd on other grounds, 457 U.S. 537 (1982).
105 See, e.g., Boykin v. Van Buren Twp., 479 F.3d 444, 450 n.2 (6th Cir. 2007); Saari, 272 F.3d
at 809; Elder v. Holloway, 975 F.2d 1388, 1391 (9th Cir. 1991). Several courts approach
doorway confrontations from the standpoint of Fourth Amendment seizure doctrine but do
not use the constructive entry terminology. See, e.g., United States v. Reeves, 524 F.3d 1161,
1167 (10th Cir. 2008); McClish v. Nugent, 483 F.3d 1231, 1238 (11th Cir. 2007); Felsing, 128 F.3d
at 819; Jerez, 108 F.3d at 690. Another term that is used to describe the same doctrine is
constructive intrusion. Marino, supra note 3, at 585. In his treatise on the Fourth
Amendment, Professor Lafave does not use the constructive entry terminology, but he
argues that a warrantless doorway arrest is illegal if the defendants presence at the door or
outside the dwelling was brought about by coercive tactics. 3 LAFAVE, supra note 22, 6.1(e).
106 See, e.g., Saari, 272 F.3d at 809. In some cases, police action is not limited to the dwellings
doorway. Some cases involve multiple officers surrounding the home, sometimes with drawn
weapons, floodlights, or armored vehicles. See, e.g., Morgan, 743 F.2d at 1161.
107 With respect to classifying this arrangement, the courts are nearly unanimous in holding
that it is the location of the suspect, not the location of the officer, that determines which set of
rules apply. See, e.g., Reeves, 524 F.3d at 1167; Maez, 872 F.2d at 451.
108 See supra notes 77-83 and accompanying text; infra Part II.A.
109 While most of the constructive entry cases involve situations where the occupant exited
the dwelling, a few do not. In these cases, the occupant never exits the dwelling or even opens
the exterior door. As a result, there is no warrantless public arrest, but the issue of a
constructive entry still arises. See, e.g., Ewolski v. City of Brunswick, 287 F.3d 492, 499 (6th Cir.
2002).
110 272 F.3d 804 (6th Cir. 2001).
air. He did so and was placed in handcuffs. 111 Analyzing the case from the
standpoint of Fourth Amendment seizure law, the court concluded that
under the circumstances, a reasonable person would have believed that he
was not free to leave.112 The officers here summoned [d]efendant to exit
his home and acted with such a show of authority that [d]efendant
reasonably believed he had no choice but to comply. His warrantless arrest
was accomplished while he was in his home . . . .113 This last point is at the
heart of the constructive-entry concept. The defendant was already seized
while inside his home, before the point when he exited.114 This seizure was
without a warrant, and in the absence of exigent circumstances, it
constituted a violation of the Payton rule.115 The fact that the defendant was
handcuffed outside his home did not change this result because he did
not voluntarily expose himself to the public so as to permit a warrantless
arrest.116 Instead, the *d]efendant was summoned out of his house at the
officers command. 117
The key points in support of recognizing the doctrine were succinctly
stated by Justice Marilyn Kelly of the Supreme Court of Michigan in her
dissenting opinion in People v. Gillam:118
The constructive entry doctrine is a valid legal doctrine that
protects individual liberties and safeguards individuals Fourth
Amendment rights. It respects the United States Supreme Court
decision in Payton, which drew a firm line at the entrance to the
home. Equally important, the constructive entry doctrine
recognizes that officers cannot do through coercive tactics and
abuse of authority what they cannot do physically; they cannot
enter someones home to effectuate an arrest without a warrant.
As noted by the Sixth Circuit Court of Appeals, *a+ contrary rule
would undermine the constitutional precepts emphasized in
Payton.119
In order to fully understand the concept of constructive entry and the

Fourth Amendment issues associated with the doctrine, it is necessary to
111 Id. at 806-08.

112 Id. at 808.
113 Id. at 809.
114The court found that the officers effected a constructive arrest of Defendant inside his
apartment. Id. at 811.
115 Id.
116 Saari, 272 F.3d at 811.
117 Id.
118 734 N.W.2d 585, 595-96 (Mich. 2007) (Kelly, J., dissenting).
119 Id. (quoting United States v. Morgan, 743 F.2d 1158, 1166-67 (6th Cir. 1984)).
consider how it relates to the concept of privacy and the law of seizures.120
A. Constructive Entry and Privacy
Privacy rights in the home are afforded an extremely high level of

protection. The right to be secure in ones own home is often described by
the Supreme Court as resting *a+t the very core of the Fourth
Amendment.121 The aspect of privacy that is protected in the home is the
right to sanctuary, to refugethe right to be left alone.122 As the Court
noted in Payton, the language of the Fourth Amendment unequivocally
establishes the proposition that at the very core *of the Fourth
Amendment] stands the right of a man to retreat into his own home and
there be free from unreasonable governmental intrusion.123 This refuge is
obviously disturbed by a physical, warrantless entry into a home, which is
the chief evil that the Fourth Amendment was intended to guard
against.124 The right to retreat into ones home and be left alone is obviously
undermined if a police officer follows you through the door into the house
when you retreat into your home.
A constructive entry does not entail an actual entry, so it is reasonable
to ask how it violates the privacy rights of someone who is inside a
dwelling. In a typical constructive entry case, the police remain outside and
engage in actions that are designed to coerce the occupant to exit the
120 Constructive entry can be more fully understood, especially with respect to the
doctrines rationale, by exploring the matter of privacy. See infra Part II.A.
121 Kyllo v. United States, 533 U.S. 27, 31 (2001) (quoting Silverman v. United States, 365
U.S. 505, 511 (1961)).

122 In this case . . . neither history nor this Nations experience requires us to disregard the
overriding respect for the sanctity of the home that has been embedded in our traditions since
the origins of the Republic. Payton v. New York, 445 U.S. 573, 601 (1980). The word
sanctity, which is derived from the Latin word sanctus, meaning sacred, has obvious
religious connotations, and is also the root of sanctuary, which has a broader set of
meanings, including the more secular, a place of refuge or asylum. THE AMERICAN
HERITAGE COLLEGE DICTIONARY 1228 (4th ed. 2002). What the Court is protecting in Payton,
with respect to the sanctity of the home, is less the home as a sacred place than the home as a
place of refuge. It connotes the idea of being undisturbed, not in the sense of being alone, but
in the sense of being free from intrusion by governmental officials, including the police. Cf. id.
123 Payton, 445 U.S. at 589-90 (quoting Silverman, 365 U.S. at 511); see also Kyllo, 533 U.S. at
31.
124 Payton, 445 U.S. at 585; United States v. U.S. Dist. Ct., 407 U.S. 297, 313 (1972). Current
Fourth Amendment jurisprudence offers a number of examples where the Court gave
heightened protection to privacy within the home compared to outside the home. See, e.g.,
Kyllo, 533 U.S. at 31.
dwelling. Officers sometimes knock or pound on the door,125 shine flood

lights126 or flashlights into the home,127 communicate instructions to an
occupant by shouting or using voice amplification technology, 128 position
themselves outside the dwelling, sometimes with weapons drawn, 129 and
park police vehicles in a manner that blocks the driveway. 130 By their very
nature, these actions can disturb the occupants refuge in essentially the
same way as an actual, physical entry into a dwelling. In a typical
constructive entry case, police actions coerce an occupant into exiting the
dwelling and moving into public space. In such a situation, the occupants
refuge was disturbed while in the dwelling, and then the violation was
exacerbated by being coerced into giving up that refugethat privacy
within the homeentirely and by requiring that he move into public
space.131 It should be added that even though most constructive entry cases
involve an occupant who is coerced into exiting the dwelling, such a move
is not a necessary element of a constructive entry. Police actions occurring
entirely outside the dwelling can disturb an occupants refuge, and thereby
violate privacy rights, even when the occupant remains within the private
space of the dwelling.132
125 See, e.g., United States v. Jerez, 108 F.3d 684, 687 (7th Cir. 1997).
126 See, e.g., United States v. Morgan, 743 F.2d 1158, 1166-67 (6th Cir. 1984).
127 See, e.g., Jerez, 108 F.3d at 687.
128 See, e.g., United States v. Maez, 872 F.2d 1444, 1455 (10th Cir. 1989).
129 See, e.g., United States v. Al-Azzawy, 784 F.2d 890, 893 (9th Cir. 1985); Citron, supra note
3, at 2792.
130 See, e.g., Morgan, 743 F.2d at 1164.
131 The precise location of the border between the private space of the home and public
space is contested. The border is not necessarily marked by the homes threshold. See supra
note 80. A detailed analysis of this issue is beyond the scope of this Article.
132 See infra notes 133-65 and accompanying text. Several Supreme Court cases decided after
Payton specify that for Fourth Amendment purposes, in order for a suspect to be seized he or
she must submit to the police exercise of force or authority. California v. Hodari D., 499 U.S.
621, 638 (1991); Michigan v. Chesternut, 486 U.S. 567, 572 (1988). This raises a question as to
whether there is a seizure in a case where an occupant refuses to open the door in response to
police demands. The submission requirement makes sense in a public setting. See, e.g., Hodari
D., 499 U.S. at 638. Within a dwelling, however, the submission requirement must be modified
to reflect the various ways in which an occupant may respond, under circumstances in which
a reasonable person would not feel free to ignore the police and go about their business inside
their home. In response to coercive police tactics, some people might stop what they were
doing before the police arrive, go to the door and open it. Others may go to the door, and
without opening it, urge the police to go away. Some people may stop what they are doing
and hide in the closet. In any of these cases, it is clear that the occupant did not feel free to
ignore the police and go about their business.
Finally, many constructive entry cases involve a situation in which the

police believe they have probable cause against a suspect and, instead of
going through the process of obtaining a warrant, proceed to the suspects
home in the hope of getting the suspect to exit his home so that a
warrantless, public arrest may be made. Invading the privacy associated
with a home without first having obtained a warrant is a serious
constitutional matter. For over half a century, the Court has made it clear
that the determination of whether probable cause exists rests in the hands
of a neutral judge or magistratenot a police officer.133 In the 1948 decision
of Johnson v. United States,134 a case involving an actual entry under color
of law, the Court stated:
The point of the Fourth Amendment, which is often not grasped
by zealous officers, is not that it denies law enforcement the
support of the usual inferences which reasonable men draw from
evidence. Its protection consists in [sic] requiring that those
inferences be drawn by a neutral and detached magistrate instead
of being judged by the officer engaged in the often competitive
enterprise of ferreting out crime. Any assumption that evidence
sufficient to support a magistrates disinterested determination to
issue a search warrant will justify the officers in making a search
without a warrant would reduce the Amendment to a nullity and
leave the peoples homes secure only in the discretion of police
officers . . . . When the right of privacy must reasonably yield to
the right of search is, as a rule, to be decided by a judicial officer,
not by a policeman or government agent.135
The Court observed that the publics interest in effective law enforcement
outweighs the occupants right to privacy in exceptional cases where
exigent circumstances are present but concluded that this was not such a
case. The Court made it clear that such circumstances do not include mere
inconvenience in obtaining the warrant or the slight delay that obtaining
a warrant would entail.136
Thus, even without an actual entry, police actions outside a dwelling
may violate an occupants privacy rights, accomplishing the same harm as
an unauthorized physical entry, which is precisely what Payton was
intended to prevent. While violation of an occupants privacy rights is at
the heart of constructive entry, courts often focus on the concept of a
seizure to determine whether a constructive entry has occurred.
133 See United States v. Chambers, 395 F.3d 563, 569 (6th Cir. 2005); Morgan, 743 F.2d at
1161.
134 333 U.S. 10 (1948).
135 Id. at 13-14 (footnotes omitted); see also Citron, supra note 3, at 2801-02 n.309.
136 See Johnston, 333 U.S. at 14-15.
B. Constructive Entry as a Seizure
Courts that consider a constructive entry to be a violation of the Payton

rule use the concept of seizure to ascertain whether a violation occurred.
Use of this seizure test links constructive entry directly to Fourth
Amendment jurisprudence, which prohibits unreasonable seizures. Thus,
consideration of key U.S. Supreme Court cases that address the law of
seizures is important to understanding the constructive entry doctrine. A
useful starting point is United States v. Mendenhall.137 In this case, the
defendant was approached in an airport concourse by two federal drug
enforcement agents who asked to see her identification and airline ticket.
After a fairly brief encounter, she agreed to accompany the agents to an
office in the airport for further questioning. There she consented to a search
of her person, during which narcotics were found. 138 One of the key issues
in the case was whether she was seized during the encounter in the
concourse area. After reviewing Terry v. Ohio,139 the leading case regarding
seizure of persons, a majority of the Court noted that, *w+e adhere to the
view that a person is seized only when, by means of physical force or a
show of authority, his freedom of movement is restrained.140 Restraint in
this context is based on whether the person remains free to disregard the
questions and walk away.141 The majority concluded, [A] person has
been seized within the meaning of the Fourth Amendment only if, in view
of all the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave. 142 After reviewing the
facts of the case, the majority found that nothing in the record suggest[ed]
that the respondent had any objective reason to believe that she was not
free to end the conversation in the concourse [area] and proceed on her
way, and for that reason we conclude that the agents initial approach to
her was not a seizure. 143 This objective test, which focuses on whether the
137 446 U.S. 544 (1980); see also LAFAVE, supra note 22, 5.1(a). See generally Investigations and
Police Practices, 37 GEO. L.J. ANN. REV. CRIM. PROC. 3, 9 n.19 (2008).
138 Mendenhall, 446 U.S. at 547-49.
139 392 U.S. 1 (1968).
140 Mendenhall, 446 U.S. at 553.
141 Id. at 554.
142 Id. The majority opinion offered examples of factors that might indicate a seizure. Id.
These include, the threatening presence of several officers, the display of a weapon by an
officer, some physical touching of the person of the citizen, or the use of language or tone of
voice indicating that compliance with the officers request might be compelled. Id.
143 Id. at 555.
person believed that they were free to terminate the encounter and leave,
works relatively well on a sidewalk or in other open public spaces where
leaving the place of the encounter is a realistic option.144 When the Court
later faced a case in which it had to apply this test to an encounter between
federal agents and a citizen within the confines of an intercity bus, it had to
determine whether the test was sufficiently elastic to work in that situation.
Florida v. Bostick involved an encounter between county sheriffs
department officers and Bostick, a passenger on an intercity bus. 145 The two
officers in uniform boarded an intercity bus during a stop in Fort
Lauderdale. Acting without reasonable suspicion, the officers approached
the defendant, who was seated on the bus, and asked to see his
identification and ticket. The defendant complied with this request. The
officers returned the documents to the defendant and then, again without
reasonable suspicion, asked for consent to search his luggage for illegal
drugs.146 There was conflicting evidence about whether the officers advised
Bostick of his right to refuse consent and whether he ever consented to the
search of the bag in which cocaine was found. The state trial court resolved
both of these factual issues in favor of the state, a holding that was upheld
by the Florida Supreme Court.147 The state high court concluded, Bostick
had been seized because a reasonable passenger in his situation would not
have felt free to leave the bus to avoid questioning by the police. 148 Out of
a concern that this would be the case with every such encounter on a bus,
the Florida Supreme Court fashioned a per se rule that a seizure occurs
whenever the police board a bus, question passengers without reasonable
suspicion, and obtain consent to search their luggage.149 The issue
presented in the U.S. Supreme Court was whether this per se rule was
144 The statement in the text is not intended to suggest that the test is free from criticism.
Some empirical research suggests that the objective test applies in an unfair manner to
members of minority groups. See, e.g., Tracey Maclin, Black and Blue Encounters Some
Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter?, 26 VAL. U. L. REV.
243 (1991); Daniel J. Steinbock, The Wrong Line Between Freedom and Restraint: The Unreality,
Obscurity, and Incivility of the Fourth Amendment Consensual Encounter Doctrine, 38 SAN DIEGO L.
REV. 507 (2001).
145 501 U.S. 429, 431-32 (1991).
146 Id.
147 Id. Subsequent to Bostick, the U.S. Supreme Court decided that police do not have to
advise citizens of their right to refuse to consent to a search. United States v. Drayton, 536 U.S.
194, 200-01 (2002); Ohio v. Robinette, 519 U.S. 33, 35-36 (1996).
148 Bostick, 501 U.S. at 433.
149 Id.
consistent with Fourth Amendment doctrine.150

The majority of the Supreme Court pointed out that public encounters
between police and citizens, in which the police approach an individual
and ask questions, are consensual in nature and require no reasonable
suspicion unless a reasonable person would not feel free to disregard the
police and go about his business due to physical force or a show of
authority by the police.151 Citing language from prior U.S. Supreme Court
decisions, Bostick argued that a seizure occurs when a reasonable person
would believe that he or she is not free to leave. 152 He argued that within
the confines of a bus, a reasonable person would not have felt free to leave
because there is nowhere to go on a bus. 153 He also argued that had he
exited the bus, he would have risked being stranded and losing whatever
luggage he had locked away in the luggage compartment. 154 While the
Florida Supreme Court agreed with this view and used it as the basis of its
per se rule, the U.S. Supreme Court rejected it. It noted that the state high
court was mistakenly focused on whether Bostick was free to leave
rather than on the principle that those words were intended to capture.155
The free to leave formulation is suitable on a sidewalk or airport
concourse. Inquiring whether, in the face of police actions, a reasonable
person would have felt free to walk away is a way to ascertain the
coercive effect of those actions.156 In an encounter on a bus, where the
person is seated and has no desire to leave, it is not an accurate measure
of that effect.157 In this case, a seizure does not occur simply when someone
does not feel free to leave because a person in Bosticks situation would
not have felt free to leave the bus even if the police had not been
present.158 The restraint on freedom of movement or confinement is not
the result of coercive police conduct. Instead, the restraint on freedom of
movement resulted from a factor independent of police conduct the
150 See id.

151 Id. at 434 (quoting California v. Hodari D., 499 U.S. 621, 628 (1991)).
152Id. at 435 (citing Michigan v. Chesternut, 486 U.S. 567, 573 (1988)). See also the
discussion of United States v. Mendenhall, 446 U.S. 544 (1980) supra notes 137-144 and
accompanying text.
153 Bostick, 501 U.S. at 435.
154 Id.
155 Id.
156 See id. at 435-36.
157 Id.
158 Id. at 436.
decision to travel by bus.159

While it was quite reasonable for Bostick to raise the free to leave
formulation in this casethe majority in Mendenhall used the exact same
language160the Court found it inapplicable.161 Instead, the Bostick Court
stated that *t+he appropriate inquiry is whether a reasonable person
would feel free to decline the officers requests or otherwise terminate the
encounter.162 At the same time, however, the majority maintained that the
underlying principle is unchanged. In any setting the crucial test is
whether . . . the police conduct would have communicated to a reasonable
person that he was not at liberty to ignore the police presence and go about
his business.163 In other words, walking away or leaving is a
manifestation of the citizens refusal to participate in an encounter with the
police and, at the same time, an exercise of ones freedom of movement. On
a bus, where leaving is not a reasonable option, that refusal will be
manifested in a different way, such as refusing to answer the officers
questions or looking away. In this setting, going about *ones+ business is
sitting in ones seat and ignoring any questions the officers pose. Although
the majority expressed some doubt about whether a seizure occurred in
Bosticks case, it remanded the case to the state court to determine, under
the test it articulated, whether Bostick was seized.164 If he was seized, it was
without a sufficient evidentiary justification, in which case his consent to a
search of his bag was not voluntary, and the cocaine found must be
suppressed under the exclusionary rule.165 If, on the other hand, he was not
seized, then the search was consensual, and the evidence admissible.
Bostick developed a test for whether a seizure occurred when police
questioned and searched a bus passenger. However, in the case of a
possible constructive entry, the test to determine whether a seizure
occurred should be reformulated. It makes little sense to inquire whether a
reasonable person inside the dwelling felt free to leave the dwelling, as
exiting the dwelling by walking away or leaving and moving into
public space would not manifest an occupants desire to terminate the
159 Bostick, 501 U.S. at 436; see generally Investigations and Police Practices, supra note 137, at 9
n.19.
160 See supra notes 137-144 and accompanying text. The Mendenhall court also used the
phrase walk away. Mendenhall, 446 U.S. at 544.

161 Bostick, 501 U.S. at 436.
162 Id.
163 Id. at 437 (quoting Michigan v. Chesternut, 486 U.S. 567, 569 (1988)).
164 Id.
165 Id. at 433-34.
encounter.166 Exiting the dwelling would not be a manifestation of an

occupants desire to go about his business. The ironic and problematic
aspect of this is that walking away (essentially exiting the dwelling and
leaving the area) is exactly what the police are trying to accomplish.
Therefore, when the suspect is inside a dwelling, an intention to terminate
the encounter could be manifested in a different way. With respect to an
occupant of a dwelling, going about ones business is accomplished by
ignoring the police outside, staying inside the dwelling, and enjoying the
privacyin the sense of refugethat comes with it. Thus, the appropriate
inquiry to determine whether the occupant of a dwelling was seized, which
would constitute a constructive entry, is whether a reasonable person
would have felt free to ignore the police actions and go about his business
within the dwelling. While some courts continue to thoughtlessly apply the
free to leave language from Mendenhall in these cases,167 many courts
appear to realize that the desire to enjoy the privacy of the home is
manifested by staying inside, rather than leaving that home. 168 Another
way to compare a seizure in public space to a seizure in the privacy of a
home is that in a public setting, a seizure is an unreasonable interference
with ones freedom to leave, while in the context of a home, a seizure is
interference with ones freedom to stay. In both situations, the police
actions interfere with a legal right. In the public setting, the interference is
in the form of restraining someones freedom to leave. In the home setting,
the interference is in the form of compelling someone to give up their
freedom to stay.
The final matter to be considered is the point at which police actions
outside a dwelling, designed to coerce an occupant to exit the dwelling,
convey a message to a reasonable person that the police presence cannot be
ignoredthat compliance with the police requests to exit the dwelling is
required.169 When that point is reached, a constructive entry has occurred.
The complicating factor is that exiting the dwelling may be a product of the
occupants free will and willingness to cooperate with the police requests,
rather than the result of coercive actions. If exiting the dwelling is
consensual, there is no seizure, no violation of the occupants privacy, and
166 See supra note 160 and accompanying text.

167 See, e.g., United States v. Morgan, 743 F.2d 1158, 1164 (6th Cir. 1984); Woods v. Florida,
25 So. 3d 669, 670 (Fla. Dist. Ct. App. 2010).
168 See United States v. Reeves, 524 F.3d 1161 (10th Cir. 2008); see also supra notes 128-124,
132-134 (regarding how this matter relates to the Supreme Courts requirement of
submission to police use of force or authority in seizure cases).
169 See Bostick, 501 U.S. at 437; Citron, supra note 3, at 2791.
no violation of the Fourth Amendment.
III. Problematic Application of the Constructive Entry Concept
Among the courts that have accepted the doctrine of constructive

entry,170 (or at least provisionally accepted it), there is a lack of consensus
over where to draw the line between police actions that constitute a seizure
and actions that do not constitute a seizure.171 Put another way, there is
dissent regarding when an occupants choice to open the door or exit the
dwelling is a consensual act or the result of coercive police actions. The key
issue is whether, under the facts of the case, a reasonable person would
have felt free to ignore the police actions and go about their business inside
the dwelling.172 Because the Supreme Court has never considered the issue
of constructive entry, it is necessary to look to the lower courts for
guidance. Following the Supreme Courts lead in United States v.
Mendenhall,173 the courts specify a number of factors or circumstances that
might indicate that a seizure has occurred. In Mendenhall, the Court listed
examples: the threatening presence of several officers, the display of a
weapon by an officer, some physical touching of the person of the citizen,
or the use of language or tone of voice indicating that compliance with the
officers request might be compelled.174 Looking at federal and state court
decisions that apply the concept of seizure in the context of a constructive
entry, we find additional factors: use of a voice amplification system,175
forceful knocking on the door,176 continuous knocking,177 repeated requests
170 See supra Part II.

171 See, e.g., People v. Gillam, 734 N.W.2d 585 (Mich. 2007).
172 See, e.g., supra Part 0 and accompanying text. The issue of consent in constructive entry
cases is essentially the same as the issue of consent in cases of warrantless physical entries and
searches. See 4 LAFAVE, supra note 22, at 8.2(a)-(b); Swingle & Zoellner, supra note 18, at 26-
27.
173 446 U.S. 544 (1980).
174 Id. at 554 (citing Terry v. Ohio, 392 U.S. 1 (1968)); see also Dunaway v. New York, 442
U.S. 200, 207 (1979); United States v. Reeves, 524 F.3d 1161, 1167 (10th Cir. 2008); Citron, supra
note 3, at 2791-92; Investigations and Police Practices, supra note 137, at 9 n.19.
175 United States v. Maez, 872 F.2d 1444, 1446 (10th Cir. 1989); United States v. Morgan, 743
F.2d 1158 (6th Cir. 1984).

176 Reeves, 524 F.3d at 1163 (avoiding use of constructive entry terminology in the majority
opinion, the court held that the defendant was seized inside his dwelling); United States v.
Saari, 272 F.3d 804, 807 (6th Cir. 2001).
177 Reeves, 524 F.3d at 1163 (discussing a situation in which police officers knocked on the
defendants door for twenty minutes); United States v. Jerez, 108 F.3d 684, 687 (7th Cir. 1997)
(discussing a situation in which officers pounded on the door for three minutes).
or demands to exit the dwelling,178 the time of day or night the encounter
takes place,179 the number and location of police cars in relation to the
dwelling,180 and driving an armored vehicle onto the front lawn of a
dwelling.181
Among those courts that recognize the doctrine, there is a uniform
willingness to find a constructive entry in cases where the show of force or
threats of force by the police are overwhelming. United States v. Maez,182
decided in 1989 by the Tenth Circuit Court of Appeals, and United States v.
Morgan,183 decided in 1984 by the Sixth Circuit Court of Appeals, are good
examples. In both cases the police acted without a warrant. 184 In Maez, ten
police officers and a SWAT team surrounded the trailer occupied by the
defendant and his family and, with rifles pointing at the trailer, asked 185 the
occupants over loudspeakers to exit the trailer. The court found that, under
the circumstances, a reasonable person would have believed he had to
come out of the home and submit to the show of authority. 186 As a result,
the defendant was arrested inside of his homebefore any physical entry
by the officers. Here, the intrusion into the defendants privacy was
extreme coercion.187
178 Jerez, 108 F.3d at 687; People v. Gillam, 734 N.W.2d 585, 589-90 (Mich. 2007) (Kelly, J.,
dissenting).
179 Reeves, 524 F.3d at 1164 (avoiding use of constructive entry terminology in the majority
opinion, the court describes the police officers attempts to coerce the defendant to exit his
dwelling between 2:30 and 3:00 a.m. when the defendant was seized inside his dwelling);
Jerez, 108 F.3d at 687 (discussing a situation in which officers knocked on the door at 11:00
p.m.).
180 Morgan, 743 F.2d at 1161.
181 Ewolski v. City of Brunswick, 287 F.3d 492, 499 (6th Cir. 2002).
182 872 F.2d 1444 (10th Cir. 1989).
183 743 F.2d 1158 (6th Cir. 1984).
184 Maez, 872 F.2d at 1446; Id. at 1161.
185 Maez, 872 F.2d at 1446. The way in which courts characterize the language and tone of
voice used by the police is a critical issue in constructive entry analysis, and it makes the
analysis of appellate decisions very problematic. See id. (stating that the police asked the
occupants over loud speakers to exit the trailer). Using the term asked rather than
commanded, demanded, requested, or ordered, without specifying the exact words
the police used, makes it difficult to assess the correctness of the courts characterization. This,
in turn, makes it difficult to determine the level of coerciveness in a specific case.
186 Id. at 1450. It is interesting to see that the court refers to the police actions, including
their show of firepower, as a show of authority instead of a show of force. See id.
187 Id. at 1451; see, e.g., Sharrar v. Felsing, 128 F.3d 810, 815 (3d Cir. 1997) (discussing a
situation involving a SWAT team, snipers, and machine guns pointed at the house).
In Morgan, nine armed officers surrounded the defendants home, used

a vehicle to block the driveway, aimed spotlights at the house, and used a
bullhorn to summon the defendant to exit the house. 188 The court held
that the officers show of authority was such that a reasonable person
would have believed [that] he was not free to leave.189 Rather than
knowingly waiving his constitutional rights and voluntarily expos*ing+
himself to a warrantless arrest by appearing at the door,190 the defendant
appeared at the door because of the coercive police behavior taking place
outside the house.191
As we move away from extreme circumstances such as those in Maez
and Morgan, determining whether a seizure occurred becomes problematic,
and the outcome becomes more unpredictable, even among courts that
recognize the constructive entry doctrine. None of the numerous factors
assessed by courts has been found determinative. For example, in United
States v. Thomas, decided by the Sixth Circuit Court of Appeals in 2005, five
officers in four police cars went to the house in which the defendant was
living.192 Two officers knocked on the door. When the defendant opened
the door, the officers asked him to step outside, and when he did so he was
arrested.193 This court was one of the earliest to recognize the constructive
entry doctrine, stating that a constructive entry occurs when the police,
while not entering the house, deploy overbearing tactics that essentially
force the individual out of the home. 194 The tactics are considered coercive
when there is such a show of authority that *the+ *d+efendant reasonably
believed he had no choice but to comply.195 Under the facts of this case,
however, the court concluded that the officers conduct did not constitute a
constructive entry; the doorway encounter in this case was consensual.196
It is instructive to compare Thomas with United States v. Saari, also
decided by the Sixth Circuit. This case involved four officers who
188 Morgan, 743 F.2d at 1161.

189 Id. at 1164. For a discussion of whether not feeling free to leave a dwelling constitutes
a restraint on a person who does not wish to leave, see supra Part II.B.
190 Morgan, 743 F.2d at 1166 (internal quotation marks omitted).
191 Id.; see also Call, supra note 11, at 337-38; Marino, supra note 3, at 584-85, 591.
192 430 F.3d 274 (6th Cir. 2005).
193 Id. at 276.
194 Id. at 277.
195 Id. (internal quotations omitted).
196 Id. at 278-80.
approached the defendants apartment with weapons drawn. 197 One of the
officers knocked forcefully on the door and identified himself as a police
officer. When the defendant opened the door, the officers pointed their
weapons at him and ordered him to come out with his hands in the air. 198
The court rejected the governments claim that the defendant voluntarily
opened the door. Instead, the court found that the defendant responded to
coercive authority by opening the door and exiting the dwelling. 199
At the same time, it is clear that the number of officers that approach a
dwelling is not determinative. In United States v. Grayer,200 again decided by
the Sixth Circuit, four officers and a police dog approached the defendants
house and knocked on the door. When he opened the door, the officers
asked the defendant to step outside and speak with them.201 As it had done
in past cases, the court acknowledged that a constructive entry occurs
when the police engage in coercive conduct (overbearing tactics that
essentially force [an] individual out of the home)202 or a show of
authority that the [d]efendant reasonably believed he had no choice but to
comply by opening the door.203 The court reiterated that if an occupant
willingly and voluntarily acquiesced to noncoercive police requests to
leave the protection of the house,204 as was the case here, there was no
constructive entry.
In light of these cases,205 one might be tempted to focus on the presence
of an unholstered firearm as the key factor that distinguishes the cases in
which courts find a constructive entry from those in which no constructive
entry is found.206 Looking further, however, we find that this factor is not
determinative either. Although courts find a constructive entry in nearly
197 United States v. Saari, 272 F.3d 804, 806 (6th Cir. 2001).
198 Id. at 806-07.
199 Id. at 808.
200 232 F. Appx 446 (6th Cir. 2007).
201 Id. at 447.
202Id. at 450 (quoting United States v. Thomas, 430 F.3d 244, 247 (6th Cir. 2005) (internal
quotation marks omitted)).
203
Id. (quoting United States v. Saari, 272 F.3d 804, 809 (6th Cir. 2001) (internal quotation
marks omitted)).
204 Id. Once the occupant is located outside the home, a subsequent arrest does not violate
the Payton rule. See supra notes 20-22 and accompanying text.
205 See, e.g., Thomas, 430 F.3d at 274; Saari, 272 F.3d at 804; Grayer, 232 F. Appx at 446.
206 Compare Saari, 272 F.3d at 804, with Grayer, 232 F. Appx at 446.
every case in which officers point a firearm at an occupant, 207 there are
several cases in which the officers are armed but do not point a firearm at
the occupant, and the court makes the same finding. For example, in United
States v. Quaempts,208 decided by the Ninth Circuit Court of Appeals in
2005, at least four officers went to the defendants trailer. After one of the
officers knocked on the door and said, Darrell Quaempts, police officer. I
need to talk to you, the defendant opened the door. 209 The court found the
actions to be a constructive entry.210
A review of the cases suggests that not only is there no one
determinative factor, but that there is no consensus among the courts on
how much weight to place on the various existing factors. At the opposite
end of the spectrum from Maez,211 Morgan,212 and the other cases that
involved an overwhelming show of force and threats of force,213 we find
cases in which there are as few as two officers, no threats of force, and no
weapons drawn, yet the court finds a seizure inside the dwelling 214 or
holds that a jury could find that opening the door was not a voluntary
act.215
IV. The Next Step
The disarray among the courts in these cases may be based in part on a
discrepancy in the way that courts determine whether a seizure has
207 Compare Saari, 272 F.3d at 804, (involving a situation in which police pointed their
weapons at the occupant), with People v. Aarness, 150 P.3d 1271, 1274 (Colo. 2006) (finding no
constructive entry when officers approached the defendants dwelling with guns drawn). The
court in Aarness suggested that a greater use of force might constitute a constructive entry.
Some cases in which the police point their weapons at an occupant involve exigent
circumstances that justify the warrantless entry as an exception to the Payton rule. See, e.g.,
Dade v. State, 666 S.E.2d 1, 5 (Ga. Ct. App. 2008).
208 411 F.3d 1046 (9th Cir. 2005).
209 Id. at 1048 (internal quotation marks omitted).
210 Id. at 1048-49.
211 872 F.2d 1444 (10th Cir. 1989).
212 743 F.2d 1158 (6th Cir. 1984).
213 See, e.g., Sharrar v. Felsing, 128 F.3d 810 (3d Cir. 1997).
214See United States v. Jerez, 108 F.3d 684 (7th Cir. 1997) (applying a Terry analysis and
concluding that as the result of the officers actions outside the motel room, the defendants
were seized inside their room for purposes of the Fourth Amendment); see also Terry v. Ohio,
392 U.S. 1, 5-6 (1968).
215 Duncan v. Storie, 869 F.2d 1100 (8th Cir. 1989). In this case, the court does not use
constructive entry terminology, but undertakes the same Fourth Amendment seizure analysis
that one finds in constructive entry cases. See id.
occurred. In United States v. Mendenhall, the Supreme Court stated that a

seizure of a person is triggered when, by means of physical force or a
show of authority . . . , *ones+ freedom of movement is restrained. 216
Many lower courts, on the other hand, state that a seizure is triggered by a
show of authority or coercion.217 This difference in terminology is
significant. Presumably these courts equate coercion with physical force or
threats of force. Certainly these things can be coercive. The problem is that
this formulation suggests that a show of authority is distinct from
coercionthat a show of authority alone is not coercive. A show of
authority by a police officer may be just as coercive as physical force or the
threat of such force.218 In other words, the assertion of authority by a
uniformed officer stating FBI. Open the door,219 may be highly coercive
in the sense that he overcomes an occupants free will to stay inside the
dwelling with the door closed. In Johnson v. United States,220 one of the
earliest cases that dealt with doorway confrontations, police officers
smelled opium coming from a hotel room.221 They knocked on the door,
and when the defendant opened the door an officer said, I want to talk to
you a little bit. According to the officers account, the defendant stepped
back acquiescently and admitted us.222 A majority of the U.S. Supreme
Court found that *e+ntry to defendants living quarters, which was the
beginning of the search, was demanded under color of office. It was
granted in submission to authority rather than as an understanding and
intentional waiver of a constitutional right.223 The Courts perspective
herethat a show of authority can be coercivemakes it clear that the
lower courts should follow the Courts lead and look for coercion in a show
of authority as well as in the use or threatened use of force. Taking this
important step would prompt courts to recognize a constructive entry
under a wider array of circumstances.
216 446 U.S. 544, 553 (1980).

217 See, e.g., United States v. Thomas, 430 F.3d 274 (6th Cir. 2005).
218 Citron, supra note 3, at 2791-92; Tracey Maclin, The Good News and Bad News About
Consent Searches in the Supreme Court, 39 MCGEORGE L. REV. 27 (2008); Swingle & Zoellner,
supra note 18, at 27; see also United States v. Reeves, 524 F.3d 1161, 1167 (10th Cir. 2008).
219 United States v. Edmondson, 791 F.2d 1512 (11th Cir. 1986).
220 333 U.S. 10 (1948).
221 Id. at 12.
222 Id.
223 Id. at 13; see also Citron, supra note 3, at 2791-92.
For example, in Knight v. Jacobson,224 decided by the Eleventh Circuit

Court of Appeals in 2002, the court ruled that there was no violation of
Payton when a police officer knocked on the plaintiffs apartment door at 2
a.m. and told him to step outside.225 The court acknowledged that some
courts found a Payton violation when the police used coercive tactics,226
but concluded that just telling a suspect to step outside his home and then
arresting him without a warrant 227 were not coercive actions. A police
officer knocking on an apartment door at 2 a.m. and then telling the
occupant to step outside when he opens the door constitutes a show of
authority. If more courts would see such tactics as coercive, it would go a
long way toward reducing the disarray in this area of law and stopping the
erosion of the Payton rule.
The Supreme Courts view in Johnson on the coercive nature of
authority anticipated the more recent social science research on the subject.
This research strongly suggests that police are imbued with authority and
that a police uniform, firearm, and normal accouterment are all visible
signs of this authority. It suggests that when police officers show up at
someones doorway in uniform with guns and badges they have made a
show of authority by the very nature of the act. 228 Encounters, even
routine encounters, between police and citizens can be highly coercive,
particularly with respect to some segments of the population.229 This
empirical research should prompt the courts to add wearing a uniform
and displaying a badge to the list of factors that should be considered in
determining whether the police actions seized an occupant inside the
dwelling.
Finally, the potential of arrest for obstructing justice or failure to
comply with a police order when the occupant refuses to open the door
adds to the occupants precarious decision on how to respond to police
tactics outside the home. Although a detailed discussion of this problem is
224 300 F.3d 1272 (11th Cir. 2002).

225 Id. at 1274, 1277.
226 Id. at 1278 n.5.
227 Id. at 1277.
228 See, e.g., Daniel J. Bell, Police Uniforms, Attitudes, and Citizens, 10 J. CRIM. JUST. 45 (1982)
(showing that both the police officers uniform and their manner toward a citizen shape the
citizens reaction); Leonard Bickman, The Social Power of a Uniform, 4 J. APPLIED SOC. PSYCH. 47
(1974); Steve Herbert, Tangled up in Blue: Conflicting Paths to Police Legitimacy, 10 THEORETICAL
CRIM. 481 (2006); Nathan Joseph & Nicholas Alex, The Uniform: A Sociological Perspective, 77
AM. J. SOC. 719 (1972); Steinbock, supra note 144.
229 See, e.g., Maclin, supra note 144.
beyond the scope of the preliminary analysis in this Article, it impacts the
occupant in a significant way and has a potentially negative impact on
policecitizen relationships more generally.230 There is a disturbing number
of cases in which a police officer knocks on the door of a dwelling, requests
that the occupant exit the dwelling, and, if the occupant fails to comply,
arrests the occupant for failure to comply. Although appellate courts
readily overturn convictions in most of these cases, defendants still have to
endure the difficulties associated with arrest, pretrial detention,
prosecution, conviction, and appeal.231 The potential for arrest and
prosecution places occupants of a dwelling between the proverbial rock
and a hard place. When faced with a police officer knocking on the door,
the occupant has two unfavorable choices. If the occupant opens the door,
he or she then faces a public, warrantless arrest. If the occupant refuses to
open the door, which is clearly within his or her legal rights, he or she then
faces an arrest for obstruction or refusal to obey. The law should not place
citizens in such a legally precarious place. In the course of dealing with the
basic issue of constructive entry, the courts should address this separate
issue of criminal liabilitymaking it clear that refusing to open the door of
a dwelling and refusing to exit a dwelling, absent a valid warrant, cannot
be illegal under obstruction or failure to comply laws.
CONCLUSION
The disarray among the lower courts relating to the problem of

constructive entry calls for an examination of the issue by the U.S. Supreme
Court. The Court can take important steps toward bringing some order to
the area by recognizing the constructive entry doctrine and the important
role it plays in applying the Payton rule. Similar to the way in which it
addressed the issue in the public seizure cases such as Mendenhall and
Bostick, the Court should articulate the appropriate verbal test for
ascertaining a seizure inside the privacy of a dwelling, and specify the
relevant factors.232 Most importantly, the Court must address the issue of
the coercive nature of police authority. Failure to do so will significantly
undermine the Payton rule, making Fourth Amendment privacy within a
230 See, e.g., Margaret Raymond, The Right to Refuse and the Obligation to Comply: Challenging
the Gamesmanship Model of Criminal Procedure, 54 BUFF. L. REV. 1483, 1506 (2007).
231 See, e.g., City of Parma v. Campbell, Nos. 79041, 79042, 2001 WL 1352657 (Ohio Ct. App.
Nov. 1, 2001); Raymond, supra note 230, at 1504, 1525-26.

232 See Florida v. Bostick, 501 U.S. 429, 436-37 (1991); United States v. Mendenhall, 446 U.S.
544, 554-55 (1980).

dwelling substantially more fragile than the drafters of that amendment

intended. Permitting the police to evade the warrant requirement as they
employ an array of tactics and technologies to coerce occupants to exit a
dwelling removes the courts from the important supervisory role they
must occupy over encounters between police and citizens.

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Step Outside, Please : Warrantless

Doorway Arrests and The Problem of

The U.S. Supreme Court has established two sets of Fourth

of Commons in March 1763).

of examples of courts giving heightened protection to peoples privacy

Amendment.9 As a result of this heightened level of protection for the

explores the coerciveness of a show of police authority and how potential

I. The Fourth Amendment, the Payton Rule, and Limits on Entry

home in order to make a routine felony arrest. 36 The importance of this

36 Payton, 445 U.S. at 576.

The breach of this linethe entrance to a homeis the paradigmatic

quotation marks omitted).

II. An Overview of the Payton Rule and Constructive Entries

Brunswick, 287 F.3d 492, 501 (6th Cir. 2002).

85 See supra Part 0.

98 American Technology Corp. Long Range Acoustic Device, DEFENSE-UPDATE.COM, http://defe

In order to fully understand the concept of constructive entry and the

111 Id. at 806-08.

A. Constructive Entry and Privacy

Privacy rights in the home are afforded an extremely high level of

U.S. 505, 511 (1961)).

dwelling. Officers sometimes knock or pound on the door,125 shine flood

Finally, many constructive entry cases involve a situation in which the

B. Constructive Entry as a Seizure

Courts that consider a constructive entry to be a violation of the Payton

consistent with Fourth Amendment doctrine.150

150 See id.

decision to travel by bus.159

phrase walk away. Mendenhall, 446 U.S. at 544.

encounter.166 Exiting the dwelling would not be a manifestation of an

166 See supra note 160 and accompanying text.

no violation of the Fourth Amendment.

III. Problematic Application of the Constructive Entry Concept

Among the courts that have accepted the doctrine of constructive

170 See supra Part II.

F.2d 1158 (6th Cir. 1984).

In Morgan, nine armed officers surrounded the defendants home, used

188 Morgan, 743 F.2d at 1161.

IV. The Next Step

occurred. In United States v. Mendenhall, the Supreme Court stated that a

216 446 U.S. 544, 553 (1980).

For example, in Knight v. Jacobson,224 decided by the Eleventh Circuit

224 300 F.3d 1272 (11th Cir. 2002).

The disarray among the lower courts relating to the problem of

Nov. 1, 2001); Raymond, supra note 230, at 1504, 1525-26.

544, 554-55 (1980).

dwelling substantially more fragile than the drafters of that amendment

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