JUSTICE MARSHALL delivered the opinion of the Court.
The issue in this case is whether, under the Fourth Amendment, a law enforcement officer may legally search for the subject of an arrest warrant in the home of a third party without first obtaining a search warrant. Concluding that a search warrant must be obtained absent exigent circumstances
In early January 1978, an agent of the Drug Enforcement Administration (DEA) was contacted in Detroit, Mich., by a confidential informant who suggested that he might be able to locate Ricky Lyons, a federal fugitive wanted on drug charges. On January 14, 1978, the informant called the agent again, and gave him a telephone number in the Atlanta, Ga., area where, according to the informant, Ricky Lyons could be reached during the next 24 hours. On January 16, 1978, the agent called fellow DEA Agent Kelly Goodowens in Atlanta and relayed the information he had obtained from the informant. Goodowens contacted Southern Bell Telephone Co., and secured the address corresponding to the telephone number obtained by the informant. Goodowens also discovered that Lyons was the subject of a 6-month-old arrest warrant.
Two days later, Goodowens and 11 other officers drove to the address supplied by the telephone company to search for Lyons. The officers observed two men standing outside the house to be searched. These men were Hoyt Gaultney and petitioner Gary Steagald. The officers approached with guns drawn, frisked both men, and, after demanding identification, determined that neither man was Lyons. Several agents proceeded to the house. Gaultney's wife answered the door, and informed the agents that she was alone in the house. She was told to place her hands against the wall and was guarded in that position while one agent searched the house. Ricky Lyons was not found, but during the search of the house the agent observed what he believed to be cocaine. Upon being informed of this discovery, Agent Goodowens sent an officer to obtain a search warrant and in the meantime conducted a second search of the house, which uncovered
Prior to trial, petitioner moved to suppress all evidence uncovered during the various searches on the ground that it was illegally obtained because the agents had failed to secure a search warrant before entering the house. Agent Goodowens testified at the suppression hearing that there had been no "physical hindrance" preventing him from obtaining a search warrant and that he did not do so because he believed that the arrest warrant for Ricky Lyons was sufficient to justify the entry and search. The District Court agreed with this view, and denied the suppression motion. Petitioner was convicted, and renewed his challenge to the search in his appeal. A divided Court of Appeals for the Fifth Circuit affirmed the District Court's denial of petitioner's suppression motion. United States v. Gaultney, 606 F.2d 540 (1979).
The Government initially seeks to avert our consideration of the Fifth Circuit's decision by suggesting that petitioner may, regardless of the merits of that decision, lack an expectation of privacy in the house sufficient to prevail on his Fourth Amendment claim. This argument was never raised by the Government in the courts below. Moreover, in its brief in opposition to certiorari the Government represented
We decline to follow the suggested disposition. Aside from arguing that a search warrant was not constitutionally required, the Government was initially entitled to defend against petitioner's charge of an unlawful search by asserting that petitioner lacked a reasonable expectation of privacy in the searched home, or that he consented to the search, or that exigent circumstances justified the entry. The Government, however, may lose its right to raise factual issues of this sort before this Court when it has made contrary assertions in the courts below, when it has acquiesced in contrary findings by those courts, or when it has failed to raise such questions in a timely fashion during the litigation.
We conclude that this is such a case. The Magistrate's report on petitioner's suppression motion, which was adopted by the District Court, characterized the issue as whether an arrest warrant was sufficient to justify the search of "the home of a third person" for the subject of the warrant. App. 12. The Government never sought to correct this characterization on appeal, and instead acquiesced in the District Court's view of petitioner's Fourth Amendment claim. Moreover, during both the trial and the appeal in this case the Government argued successfully that petitioner's connection with the searched home was sufficient to establish his constructive possession of the cocaine found in a suitcase in the closet of the house.
Thus, during the course of these proceedings the Government has directly sought to connect petitioner with the house, has acquiesced in statements by the courts below characterizing the search as one of petitioner's residence, and has made similar concessions of its own. Now, two years after petitioner's trial, the Government seeks to return the case to the District Court for a re-examination of this factual issue.
The question before us is a narrow one.
The purpose of a warrant is to allow a neutral judicial officer to assess whether the police have probable cause to make an arrest or conduct a search. As we have often explained, the placement of this checkpoint between the Government and the citizen implicitly acknowledges that an "officer engaged in the often competitive enterprise of ferreting out crime," Johnson v. United States, supra, at 14, may lack sufficient objectivity to weigh correctly the strength of the evidence supporting the contemplated action against the individual's interests in protecting his own liberty and the privacy of his home. Coolidge v. New Hampshire, supra, at 449-451; McDonald v. United States, 335 U.S. 451, 455-456 (1948). However, while an arrest warrant and a search warrant both serve to subject the probable-cause determination
Thus, whether the arrest warrant issued in this case adequately safeguarded the interests protected by the Fourth Amendment depends upon what the warrant authorized the agents to do. To be sure, the warrant embodied a judicial finding that there was probable cause to believe that Ricky Lyons had committed a felony, and the warrant therefore authorized the officers to seize Lyons. However, the agents sought to do more than use the warrant to arrest Lyons in a public place or in his home; instead, they relied on the warrant as legal authority to enter the home of a third person based on their belief that Ricky Lyons might be a guest there. Regardless of how reasonable this belief might have been, it was never subjected to the detached scrutiny of a judicial officer. Thus, while the warrant in this case may have protected Lyons from an unreasonable seizure, it did absolutely nothing to protect petitioner's privacy interest in being free from an unreasonable invasion and search of his home. Instead, petitioner's only protection from an illegal entry and search was the agent's personal determination of probable cause. In the absence of exigent circumstances, we have consistently held that such judicially untested determinations are not reliable enough to justify an entry into a person's home to arrest him without a warrant, or a search of a home for objects in the absence of a search warrant.
In sum, two distinct interests were implicated by the search at issue here—Ricky Lyons' interest in being free from an unreasonable seizure and petitioner's interest in being free from an unreasonable search of his home. Because the arrest warrant for Lyons addressed only the former interest, the search of petitioner's home was no more reasonable from petitioner's perspective than it would have been if conducted in the absence of any warrant. Since warrantless searches of a home are impermissible absent consent or exigent circumstances, we conclude that the instant search violated the Fourth Amendment.
The Government concedes that this view is "apparently logical," that it furthers the general policies underlying the Fourth Amendment, and that it "has the virtue of producing symmetry between the law of entry to conduct a search for things to be seized and the law of entry to conduct a search for persons to be seized." Brief for United States 36. Yet we are informed that this conclusion is "not without its flaws" in that it is contrary to common-law precedent and creates some practical problems of law enforcement. We treat these contentions in turn.
The common law may, within limits,
More important, the general question addressed by the common-law commentators was very different from the issue presented by this case. The authorities on which the Government relies were concerned with whether the subject of the arrest warrant could claim sanctuary from arrest by hiding
The common law thus recognized, as have our recent decisions, that rights such as those conferred by the Fourth Amendment are personal in nature, and cannot bestow vicarious protection on those who do not have a reasonable expectation of privacy in the place to be searched. See United States v. Salvucci, 448 U.S. 83 (1980); Rakas v. Illinois, 439 U.S. 128 (1978). The issue here, however, is not whether the subject of an arrest warrant can object to the absence of a search warrant when he is apprehended in another person's home, but rather whether the residents of that home can complain of the search. Because the authorities relied on by the Government focus on the former question without addressing the latter, we find their usefulness limited. Indeed, if anything, the little guidance that can be gleaned from common-law authorities undercuts the Government's position. The language of Semayne's Case quoted above, for example, suggests that although the subject of an arrest warrant could not find sanctuary in the home of the third party, the home remained a "castle or privilege" for its residents. Similarly, several commentators suggested that a search warrant, rather than an arrest warrant, was necessary to fully insulate a constable from an action for trespass brought by a party whose home was searched. See, e. g., 1 Chitty *57; 2 Hale 116-117, 151.
The Government also suggests that practical problems might arise if law enforcement officers are required to obtain
First, the situations in which a search warrant will be necessary are few. As noted in Payton v. New York, supra, at 602-603, an arrest warrant alone will suffice to enter a suspect's own residence to effect his arrest. Furthermore, if probable cause exists, no warrant is required to apprehend a suspected felon in a public place. United States v. Watson, 423 U.S. 411 (1976). Thus, the subject of an arrest warrant can be readily seized before entering or after leaving the home of a third party.
Moreover, in those situations in which a search warrant is necessary, the inconvenience incurred by the police is simply not that significant. First, if the police know of the location of the felon when they obtain an arrest warrant, the additional burden of obtaining a search warrant at the same time is miniscule. The inconvenience of obtaining such a warrant does not increase significantly when an outstanding arrest warrant already exists. In this case, for example, Agent Goodowens knew the address of the house to be searched two days in advance, and planned the raid from the federal courthouse in Atlanta where, we are informed, three fulltime magistrates were on duty. In routine search cases such as this, the short time required to obtain a search warrant from a magistrate will seldom hinder efforts to apprehend a felon. Finally, if a magistrate is not nearby, a telephonic search warrant can usually be obtained. See Fed. Rule Crim. Proc. 41 (c) (1), (2).
Whatever practical problems remain, however, cannot outweigh the constitutional interests at stake. Any warrant requirement impedes to some extent the vigor with which the Government can seek to enforce its laws, yet the Fourth Amendment recognizes that this restraint is necessary in some cases to protect against unreasonable searches and seizures. We conclude that this is such a case. The additional burden imposed on the police by a warrant requirement is minimal. In contrast, the right protected—that of presumptively innocent people to be secure in their homes from unjustified, forcible intrusions by the Government—is weighty. Thus, in order to render the instant search reasonable under the Fourth Amendment, a search warrant was required.
THE CHIEF JUSTICE concurs in the judgment.
JUSTICE REHNQUIST, with whom JUSTICE WHITE joins, dissenting.
The Court's opinion reversing petitioner's conviction proceeds in a pristinely simple manner: Steagald had a Fourth Amendment privacy interest in the dwelling entered by the police, and even though the police entered the premises for the sole purpose of executing a valid arrest warrant for Lyons, a fugitive from justice, whom they had probable cause to believe was within, the arrest warrant was not sufficient absent exigent circumstances to justify invading Steagald's privacy interest in the dwelling. Petitioner Steagald's privacy interest is different from Lyons' interest in being free from an unreasonable seizure, according to the Court, and the arrest warrant only validated the invasion of the latter. In the words of the Court:
This "reasoning" not only assumes the answer to the question presented—whether the search of petitioner's dwelling could be undertaken without a search warrant—but also conveniently ignores the critical fact in this case, the existence of an arrest warrant for a fugitive believed on the basis of probable cause to be in the dwelling. The Court assumes
This case, therefore, cannot be resolved by the simple Aristotelian syllogism which the Court employs. Concluding as it does that the arrest warrant did not address the privacy interest affected by the search by no means ends the matter; it simply presents the issue for decision. Resolution of that issue depends upon a balancing of the "need to search against the invasion which the search entails." Camara v. Municipal Court of San Francisco, 387 U.S. 523, 537 (1967). Here, as in all Fourth Amendment cases, "reasonableness is still the ultimate standard." Id., at 539. See Wyman v. James, 400 U.S. 309, 318 (1971); Marshall v. Barlow's, Inc.,
The government's interests in the warrantless entry of a third-party dwelling to execute an arrest warrant are compelling. The basic problem confronting police in such situations is the inherent mobility of the fugitive. By definition, the police have probable cause to believe that the fugitive is in a dwelling which is not his home. He may stay there for a week, a day, or 10 minutes. Fugitives from justice tend to be mobile, and police officers will generally have no way of knowing whether the subject of an arrest warrant will be at the dwelling when they return from seeking a search warrant. See United States v. McKinney, 379 F.2d 259, 263 (CA6 1967); State v. Jordan, 288 Or. 391, 400-401, 605 P.2d 646, 651 (1980) (en banc). Imposition of a search warrant requirement in such circumstances will frustrate the compelling interests of the government and indeed the public in the apprehension of those subject to outstanding arrest warrants.
The Court's responses to these very real concerns are singularly unpersuasive. It first downplays them by stating that "the situations in which a search warrant will be necessary are few," ante, at 221, because no search warrant is necessary to arrest a suspect at his home and, if the suspect is at another's home, the police need only wait until he leaves, since no search warrant is needed to arrest him in a public place. Ibid. These beguilingly simple answers to a serious law enforcement problem simply will not wash. Criminals who know or suspect they are subject to arrest warrants would not be likely to return to their homes, and while "[t]he police could reduce the likelihood of escape by staking out all possible exits . . . the costs of such a stakeout seem excessive in an era of rising crime and scarce police resources."
At the same time the interference with the Fourth Amendment privacy interests of those whose homes are entered to apprehend the felon is not nearly as significant as suggested by the Court. The arrest warrant serves some of the functions a separate search warrant would. It assures the occupants that the police officer is present on official business. The arrest warrant also limits the scope of the search, specifying what the police may search for—i. e., the subject of the arrest warrant. No general search is permitted, but only a search of those areas in which the object of the search might hide. See Fisher v. Volz, 496 F.2d 333, 343 (CA3 1974); State v. Jordan, supra, at 400-401, 605 P. 2d, at 651; United States v. Cravero, 545 F.2d 406, 421, nn. 1. 2 (CA5 1976), cert. denied, 429 U.S. 1100 and 430 U.S. 983 (1977). Indeed there may be no intrusion on the occupant's privacy at all, since if present the suspect will have the opportunity to voluntarily surrender at the door. Even if the suspect does not surrender but secrets himself within the house, the occupant can limit the search by pointing him out to the police. It is important to remember that the contraband discovered during the entry and search for Lyons was in plain view, and was discovered during a "sweep search" for Lyons, not a probing of drawers or cabinets for contraband. United States v. Gaultney, 606 F.2d 540, 544 (1979).
This conclusion is supported by the common law as it existed at the time of the framing of the Fourth Amendment, which incorporated the standard of "reasonableness." As the Court noted last Term in Payton: "An examination of the common-law understanding of an officer's authority to arrest sheds light on the obviously relevant, if not entirely dispositive, consideration of what the Framers of the Amendment might have thought to be reasonable." 445 U. S., at 591; see also id., at 604 (WHITE, J., dissenting). The duty of the populace to aid in the apprehension of felons was well established at common law, see Roberts v. United States, 445 U.S. 552, 557 (1980), and in light of the overriding interest in apprehension, the common law permitted officers to enter the dwelling of third parties when executing an arrest warrant. Chitty wrote that "[t]he house of a third person, if the offender fly to it for refuge, is not privileged, but may be broken open after the usual demand; for it may even be so upon civil process." 1 J. Chitty, Criminal Law *57 (hereafter Chitty). Gabbett agreed: "Neither is the house of a third person, if the offender fly to it for refuge, privileged, but it may be broken open, after the usual demand; for it may be even so upon civil process." 2 J. Gabbett, Criminal Law 142 (1843) (hereafter Gabbett). Hale noted that an officer could forcibly enter the house of the subject of an arrest warrant, "[a]nd so much more may he break open the house of another person to take him, for so the sheriff may do upon a civil process." 2 M. Hale, Pleas of the Crown 117
The leading authority, Semayne's Case, 5 Co. Rep. 91a, 93a, 77 Eng. Rep. 194, 198 (K. B. 1603), recognized that "[t]he house of any one is not a castle or privilege but for himself, and shall not extend to protect any person who flies to his house . . . to prevent a lawful execution, and to escape the ordinary process of law . . . and therefore in such cases after denial on request made, the sheriff may break the house." In Ratcliffe v. Burton, 3 Bos. & Pul. 223, 230, 127 Eng. Rep. 123, 126-127 (C. P. 1802), Judge Heath ruled that before breaking doors, officers must announce their authority, because a contrary rule "must equally hold good in cases of process upon escape, where the party has taken refuge in the house of a stranger. Shall it be said that in such case the officer may break open the outer door of a stranger's house without declaring the authority under which he acts . . .?" Thus no distinction was recognized between authority to enter the suspect's home and that of a stranger. See also
The Court argues that the common-law authorities are not relevant because they do not consider the rights of third parties whose dwellings were entered but only the rights of the arrestee. Ante, at 218-219. This is not so. The authorities typically concern the right of the third party to resist the officer's attempted entry or the offense committed by the officer against the third party in entering. See, e. g., Commonwealth v. Reynolds, supra; 1 Chitty *57-*58; 2 Hale 117; 1 Russell 519-521.
The basic error in the Court's treatment of the common law is its reliance on the adage that "a man's home is his castle." Though there is undoubtedly early case support for this in the common law, it cannot be accepted as an uncritical statement of black letter law which answers all questions in this area. William Pitt, when he was Prime Minister of England, used it with telling effect in a speech on the floor of the House of Commons; but parliamentary speaking ability and analytical legal ability ought not to be equated with one
An officer could break into one's own home to execute an arrest warrant for the owner, and "so much more may he break open the house of another person to take him," 2 Hale 117. Entry into the house of a third party to effect arrest was considered to follow a fortiori from the accepted entry into the home of the subject of the arrest warrant himself. This was because those in the home of a third party had no protection against civil process,let alone criminal process. See 1 Chitty *57; 2 Gabbett 142; 2 Hale 117. See generally Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 798. 800-801 (1924). At common law the Sovereign's key—criminal process—unlocked all doors, whether to apprehend the owner or someone else.
While I cannot subscribe to the Court's decision today. I will not falsely cry "wolf" in this dissent. The decision rests on a very special set of facts, and with a change in one or more of them it is clear that no separate search warrant would be required even under the reasoning of the Court.
On the one side Payton makes clear that an arrest warrant is all that is needed to enter the suspect's "home" to effect the arrest. 445 U. S., at 602-603. If a suspect has been living in a particular dwelling for any significant period, say
The genuinely unfortunate aspect of today's ruling is not that fewer fugitives will be brought to book, or fewer criminals apprehended, though both of these consequences will undoubtedly occur; the greater misfortune is the increased uncertainty imposed on police officers in the field, committing magistrates, and trial judges, who must confront variations and permutations of this factual situation on a day-to-day basis. They will, in their various capacities, have to weigh the time during which a suspect for whom there is an outstanding arrest warrant has been in the building, whether the dwelling is the suspect's home, how long he has lived there, whether he is likely to leave immediately, and a number of related and equally imponderable questions. Certainty and repose, as Justice Holmes said, may not be the destiny of man, but one might have hoped for a higher degree of certainty in this one narrow but important area of the law than is offered by today's decision.
While the courts are in conflict, most modern commentators agree that a search warrant is necessary to fully protect the privacy interests of third parties when their home is searched for the subject of an arrest warrant. See 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 374, 384-385 (1978); Rotenberg & Tanzer, Searching for the Person to Be Seized, 35 Ohio St. L. J. 56, 67-71 (1974); Groot, Arrests in Private Dwellings, 67 Va. L. Rev. 275 (1981); Note, The Neglected Fourth Amendment Problem in Arrest Entries, 23 Stan. L. Rev. 995, 997-999 (1971); Comment, Arresting a Suspect in a Third Party's Home: What is Reasonable?, 72 J. Crim. L. & C. 293 (1981). But see Mascolo, Arrest Warrants and Search Warrants: The Seizure of A Suspect in the Home of a Third Party, 54 Conn. Bar J. 299 (1980).
In Payton, of course, we recognized that an arrest warrant alone was sufficient to authorize the entry into a person's home to effect his arrest. We reasoned:
"If there is sufficient evidence of a citizen's participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law. Thus, for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." 445 U. S., at 602-603.
Because an arrest warrant authorizes the police to deprive a person of his liberty, it necessarily also authorizes a limited invasion of that person's privacy interest when it is necessary to arrest him in his home. This analysis, however, is plainly inapplicable when the police seek to use an arrest warrant as legal authority to enter the home of a third party to conduct a search. Such a warrant embodies no judicial determination whatsoever regarding the person whose home is to be searched. Because it does not authorize the police to deprive the third person of his liberty, it cannot embody any derivative authority to deprive this person of his interest in the privacy of his home. Such a deprivation must instead be based on an independent showing that a legitimate object of a search is located in the third party's home. We have consistently held, however, that such a determination is the province of the magistrate, and not that of the police officer.
Moreover, we are informed by the Government that "it is the present policy of the Drug Enforcement Administration, whose agents conducted the search in the present case, to secure a search warrant prior to making an arrest entry into third party premises, in the absence of exigent circumstances or consent." Brief in Opposition 9, n. 7.