Payton, practical wisdom, and the pragmatist judge: is Payton's goal to prevent unreasonable entries or to effectuate home arrests?

AuthorPapapetrou, Christos

"What concerns us is not what the historical facts which appear at this or that time are, per se, but what they signify, what they point to, by appearing." (1)


Imagine two police officers arrive at a suspect's home to execute an arrest warrant. The first police officer believes the suspect is not home because he knows the suspect often takes walks at this time in the evening. The other officer, without this knowledge, sees the suspect's car in the driveway and the lights on in the living room, and knows that according to an "objective" test this is enough to believe the suspect is inside the residence. If the police officers enter the house (notwithstanding what the first police officer believes) should the objective test be enough to validate this entry? (2) An empirical pragmatic (3) approach to this problem would likely argue that if the facts satisfy the objective, reasonable test then the entry should be upheld. The opposing view would conclude that "there can be no knowledge without belief." (4)

This Comment examines an empirical pragmatic approach to resolving this controversial issue arising from the Supreme Court's ruling in Payton v. New York. (5) Further, it considers how a judge should approach a constitutional question when that question has not yet been clearly decided by the courts. In Payton, the Court held that an arrest warrant implicitly carries with it a right to enter a suspect's home when there is "reason to believe" it is the suspect's residence. (6) Courts since Payton have interpreted "reason to believe" as incorporating anything from a simple belief on the part of the police, up to a probable cause standard of proof. (7) This Comment questions how courts should think about this standard and analyzes one approach put forth by Professor Matthew A. Edwards in his article, Posner's Pragmatism and Payton Home Arrests. (8) In his article, Edwards proposes that courts could resolve this uncertainty through empirical pragmatism and reliance on social science. (9) This Comment discusses Edwards' proposal and the theory of empirical pragmatism framed within the context of the Payton standard. Furthermore, it explores the consequences of relying on empirical pragmatism in a constitutional setting, and suggests that a proper approach to this question must have more substantive beginnings because of the valuable interests involved.

Part I of this Comment discusses the Supreme Court's decision in Payton (10) and the lower courts' application of the "reason to believe" standard. (11) Part II examines Edwards' proposed solution that advocates the "Pragmatist Judge" and considers the various criticisms raised by its opponents. Part III posits that before a court can correctly apply any empirical information, it needs to be aware of the different interests involved. This Comment proposes that courts should participate in a legal narrative discussion to arrive at a clear standard, rather than rely on pragmatism.


    This section sets forth the Supreme Court's decision in Payton and considers the inconsistencies in applying the "reason to believe" standard.

    1. What Does Payton Hold?

      The question presented in Payton v. New York (12) is whether a police officer is authorized to enter a private residence to make an arrest without a warrant. (13) In response to this question, the Supreme Court held that, "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." (14) The Court created a two-prong inquiry to satisfy this standard. (15) First, the police must have a reasonable belief that the residence is the suspect's home; and second, the police must have a reason to believe the suspect is inside the residence at that particular time. (16)

      Justice Stevens, writing the opinion of the Court, acknowledges the New York Court of Appeals reliance on "apparent historical acceptance" (17) in reaching its decision to uphold warrantless arrests. Justice Stevens examines the history behind the Fourth Amendment, and then spends the majority of the opinion discussing the Fourth Amendment principles the Court has always recognized. (18) As Justice Stevens writes, "[a]lmost a century ago the Court stated in resounding terms that the principles reflected in the Amendment 'reached farther than the concrete form' of the specific cases that gave it birth." (19) The Court concretely states in Payton: "It is a 'basic principle of Fourth Amendment' law that searches and seizures inside a home without a warrant are presumptively unreasonable." (20)

    2. Applying Payton Today

      Courts have difficulty applying Payton because the Supreme Court did not precisely define "reason to believe." (21) As a result, courts applying this standard have developed different interpretations of what is required of police officers before they can enter a suspect's home. (22) The crucial question is which standard of reasonableness satisfies the "reason to believe" language under Payton. The majority of courts define the Payton standard as embodying a level of reasonableness less than probable cause. (23) These courts interpret the standard as a "common sense approach," analyzing the totality of the circumstances that may give an officer reason to believe the suspect is at home. (24) In contrast to the majority of courts, the Ninth Circuit has held that "police may enter a home with an arrest warrant only if they have probable cause to believe the person named in the warrant resides there." (25) The Ninth Circuit refused to apply a lesser standard of reasonableness than probable cause.

      Courts have applied different factors in determining what constitutes "reason to believe." (26) The most common factors include: observation of the suspect, the presence of automobiles at the house, lights on within the house, noises from within the residence, and the time of day the police enter. (27) Courts interpret these factors differently, which has led to the current lack of clarity regarding what constitutes "reasonable belief." Additionally, in situations where there is only one factor present, the analysis of when to uphold a police entry becomes more questionable. (28) The presence, or lack of, these factors leads the police to different assumptions depending on the situation. Additionally, courts have held that the police should consider whether the suspect is aware the police are looking for them. In these cases, the lack of the above factors allows the police to assume the suspect is in the residence. (29) For example, having the lights off and hiding his car permits the police to assume the suspect is inside the home. Courts, however, have generally not applied the lack of factors as an indicator that the person is hiding. (30)

      United States v. Thomas is another example of a court's unclear application of Payton. (31) In Thomas, the government argued that it had satisfied the first prong of the Payton standard because it performed an "investigation." (32) The government simply stated that they investigated and were certain that the home was the defendant's residence, (33) and as a result they established more than a "mere hunch, surmise, or suspicion." (34) The court, however, implied that since Thomas was a parolee, his parole officer clearly would have had his current address, and thus the government's "investigation" was sufficient. (35) As to the second prong, whether the officers had reason to believe Thomas would be at home when they executed the warrant, the court only considered the time of day that the police entered the home. (36) The court stated that "the early morning hour was reason enough." (37)

      These cases exemplify how courts applying Payton have become very deferential to the officer's judgment in making factual determinations about the suspect's presence in the residence. As Edwards remarks, "[t]his deference seems to be a reflection of the judiciary's long-standing institutional concerns regarding second-guessing police work." (38) The issue raised is whether the determinations being made are those which courts have traditionally seen as "police work," or rather a lenient approach to police abuse. (39)


    This Part of the Comment examines Edwards' pragmatic approach to Payton, as well as the various anti-pragmatic critiques.

    1. Edwards' Empirical Pragmatism

      Edwards suggests using empirical pragmatism to solve the problems of applying Payton. (40) He argues that "sound social science" should guide the courts when applying Payton. (41) Edwards proposes that if judges were to adopt a method of judicial review that "explicitly relies upon social-science research," it would clarify the issues faced by the courts when reviewing these police actions. (42) Further, he argues that a database of home arrest statistics should be created for judges to assist them in determining whether it was reasonable for an officer to believe the suspect was at home at the time of entry. (43) He refers to this method of judicial decision-making as one of "transparent adjudication" (44) that will allow the courts to move to more difficult normative questions. (45)

      1. The Pragmatist Judge

        Edwards relies on the model of legal pragmatism espoused by Judge Posner. (46) Edwards creates a "Pragmatist Judge," based on Posner's model of pragmatism with the following characteristics:

        (1) Demonstrates respect for, but not blind adherence to, precedent; (2) Is willing to look outside of traditional legal sources for guidance in resolving truly novel or difficult cases; (3) Uses non-legal methods or information derived from "economists, statistics, game theory, cognitive psychology, political science, sociology, decision theory, and related disciplines," to resolve legal questions; (4) Seeks guidance from empirical...

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