Appeal from the United States District Court for the District of Kansas. (D.C. No. 6:13-CR-10111-MLB-1).
Timothy J. Henry, Assistant Federal Public Defender, Wichita, Kansas, for Defendant-Appellant.
Matthew T. Treaster, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Wichita, Kansas, for Plaintiff-Appellee.
Before TYMKOVICH, EBEL, and GORSUCH, Circuit Judges.
GORSUCH, Circuit Judge.
Steven Denson was on the lam. After his conviction for armed robbery and a spell in prison he quit reporting to his probation officer as his sentence required. For a time, Mr. Denson appeared gone for good. But authorities weren't quick to give up their search and eventually they found his name on a residential Wichita utility account. With an arrest warrant in hand they showed up at the listed address. When a handheld Doppler radar device and other evidence suggested Mr. Denson might be present inside the house, the officers entered. Quickly they found Mr. Denson along with a stash of guns, guns he lacked the right to possess by virtue of his felony conviction.
This led Mr. Denson to plead guilty to a federal firearm charge under 18 U.S.C. § § 922(g)(1) and 924(a)(2). At the same time, he preserved the right to appeal the district court's denial of his Fourth Amendment motion to suppress. Exercising that right now, he seeks reversal on three grounds. First, he contends the officers entered his home without reason to believe he was there at the time. Second, he argues that the officers lacked a lawful basis to search his home after they arrested him. Third, he submits that the officers had no right to seize his guns even after they came upon them. In the first two of these questions we confront -- even if we do not have to resolve fully -- how the Fourth Amendment interacts with the government's use of radar technology to peer inside a suspect's home.
The Supreme Court has held that " 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." Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). But how much proof must the government amass to establish " reason to believe" a suspect may be found " within" a house at the time of its search? Is that formula meant to parallel the familiar probable cause standard generally applicable to arrests? Or does Payton mean to invoke something closer to the more forgiving reasonable suspicion standard we use for investigatory detentions?
The circuits disagree. Some, this one included, have read Payton to require something less than probable cause. See Valdez v. McPheters, 172 F.3d 1220, 1227 n.5 (10th Cir. 1999); United States v. Thomas, 429 F.3d 282, 286, 368 U.S.App.D.C. 285 (D.C. Cir. 2005), modified on other grounds, 179 F.App'x 60 (2006) (per curiam); United States v. Lauter,
57 F.3d 212, 215
(2d Cir. 1995). The logic behind these decisions is simple enough: " the Supreme Court in Payton used a phrase other than 'probable cause' because it meant something other than 'probable cause.'" Thomas, 429 F.3d at 286. Meanwhile, other circuits have held that Payton 's " reason to believe" standard " embodies the same standard of reasonableness inherent in probable cause." United States v. Gorman, 314 F.3d 1105, 1112 & n.6 (9th Cir. 2002); see also United States v. Hardin, 539 F.3d 404, 416 n.6 (6th Cir. 2008); United States v. Barrera, 464 F.3d 496, 501 (5th Cir. 2006); United States v. Magluta, 44 F.3d 1530, 1534-35 (11th Cir. 1995). Indeed, the Supreme Court itself has sometimes seemed to employ the term " reasonable ground for belief" as part of the very definition of " probable cause." See, e.g., Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (discussing Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)); see also United States v. Jackson, 576 F.3d 465, 469 (7th Cir. 2009).
In this light, one might wonder if reason exists to reconsider Valdez. But in our case we don't need to pursue the question because nothing turns on its answer. Even if the officers needed probable cause to think Mr. Denson was inside the home at the time of their entry, they had it. Probable cause doesn't require proof that something is more likely true than false. It requires only a " fair probability," a standard understood to mean something more than a " bare suspicion" but less than a preponderance of the evidence at hand. See United States v. Ludwig, 641 F.3d 1243, 1252 & n.5 (10th Cir. 2011) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). When assessing whether the government meets the probable cause standard we look to the " totality of the circumstances." See Ludwig, 641 F.3d ...