I recently received a memo from Det. Steven W. Taylor asking for clarification of the Valdez v. McPheters, ___ F.3d ___ (No. 97-4057, 10^th Cir. filed April 5, 1999), ruling cited in Legal Bulletin 99-3. Taylor indicated that during Legal Updates class, I advised that officers cannot enter the home of a third party to arrest someone on a valid arrest warrant even if the officer saw the subject named in the warrant therein. Taylor states:

    Legal Bulletin 99-3 stated that in Valdez the 10^th Circuit clarified the rules on when officers can enter a home when they have an arrest warrant for someone they believe is inside. In Legal Updates class, I stated that Payton v. New York, 445 U.S. 573, allows entry into the residence of the person named in the warrant to make an arrest, but I also stated there must be two additional elements present: (1) probable cause to believe the person resided there and (2) probable cause to believe the person was within at the time of entry. In Valdez, the court stated the appropriate standard to satisfy these two elements is ?a reasonable basis for believing? the person lives there and is within at the time of entry, rather than probable cause.

    You may have been confused by the following sentence in Legal Bulletin 99-3: ?The court rejected a standard which would require officers to have probable cause to believe the person named in the warrant lived at the residence.? Standing alone, this sentence can be confusing, but when read in context, it is clear that officers entering a home must have a reasonable basis for believing subject lives there AND a reasonable basis for believing the subject will be found therein at the time of entry.

    Also, please note that Valdez is a civil suit against the officers for money damages. The officers claimed they were entitled to qualified immunity. Qualified immunity protects public officials performing discretionary functions unless their conduct violates ?clearly established statutory or constitutional rights of which a reasonable person would have known.? Jantz v. Muci, 976 F.2d 623, 627 (10th Cir. 1992)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)), cert. denied, 508 U.S. 952, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993). The issue in Valdez was whether the law on entry into a third party's residence based on an arrest warrant was clearly established. The court held it was not, found officers made a reasonable mistake about where the subject lived, and found the officers were entitled to qualified immunity.

    However, the law is now clearly established. If officers enter a residence to arrest a subject named in an arrest warrant AND DO NOT have a reasonable basis for believing subject lives there AND a reasonable basis for believing the subject will be found therein at the time of entry, entry will be unconstitutional, the arrest will be unconstitutional, any evidence seized will be suppressed and the officers will likely get sued for damages and lose. Stated a slightly different way, a search warrant is required to enter a residence and arrest someone named in an arrest warrant UNLESS the officer has a reasonable basis for believing the person lives there and will be found therein at the time of entry.