                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-2295

U NITED S TATES OF A MERICA,
                                                   Plaintiff-Appellee,
                                  v.

E RIC JACKSON,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Western Division.
           No. 3:07-cr-50043-1—Philip G. Reinhard, Judge.



      A RGUED M AY 11, 2009—D ECIDED A UGUST 6, 2009




 Before C UDAHY, P OSNER, and K ANNE, Circuit Judges.
   C UDAHY, Circuit Judge. Eric Jackson was sentenced to
a 96 month term of imprisonment for possession of a
firearm by a previously-convicted felon. The gun that
was the basis of the possession charge was found on
Jackson’s person when the police executed an arrest
warrant for Jackson in an acquaintance’s apartment
where Jackson had been staying. On appeal, Jackson
challenges the denial of his motion to suppress the gun
2                                             No. 08-2295

and the imposition of an above-Guidelines sentence.
We affirm.


                  I. BACKGROUND
  Eric Jackson was arrested by the Winnebago County
Sheriff’s Department based on an outstanding warrant
for aggravated battery. After unsuccessfully attempting
to locate Jackson at the residences of multiple relatives,
the police received an anonymous tip that Jackson had
been staying at his father’s girlfriend’s apartment on
1107 Elm Street and that he would be at that address
the next day—June 1, 2007—in the early morning.
   The police arrived at the apartment at approximately
8:30 in the morning, and were invited into the vestibule
by LanDonna Joseph, the primary tenant. When the
officers showed Jackson’s picture to Joseph, she pro-
fessed not to recognize him but the officers judged from
her body language that she was lying. Still without enter-
ing the apartment, the officers next showed Jackson’s
picture to Tyneesha Barbary, who was sitting nearby. (As
it happens, Barbary was Jackson’s girlfriend and was
pregnant with his child.) When the officers asked Barbary
if Jackson was in the apartment, she started to cry and
nodded her head. The officers subsequently entered the
apartment and followed Barbary to a back bedroom
where Jackson was sleeping with Barbary’s daughter.
After handcuffing Jackson, the officers searched the
immediate area and found a pistol within grabbing dis-
tance under the blanket on which he had been sleeping.
No. 08-2295                                                        3

  Although he was initially arrested for aggravated
battery, Jackson was ultimately charged in federal court
with possession of a firearm by a previously-convicted
felon in violation of 18 U.S.C. § 922. The district court
denied Jackson’s motion to suppress the gun that was
seized during the arrest, finding that the search was
lawful because the police reasonably believed that Jackson
was within Joseph’s apartment when they entered. Follow-
ing the court’s denial of his suppression motion, Jackson
pleaded guilty. The court calculated his sentencing range
as 37 to 46 months, but sentenced him to 96 months’
imprisonment, more than twice the top of his Guidelines
range. The court found that this sentence was necessary “to
stop you before you kill somebody or before you get
killed.”


                       II. DISCUSSION
    A. Jackson’s Arrest
  As a threshold matter, we reject Jackson’s argument
that the police needed a search warrant as well as an
arrest warrant in order to enter Joseph’s apartment in
order to arrest him.1 “[F]or Fourth Amendment purposes,


1
  Because a suspect has no reasonable expectation of privacy
once an arrest warrant is issued, it is at least arguable that
Jackson would not have standing to challenge an illegal entry
into Joseph’s home. See, e.g., United States v. Kaylor, 877 F.2d 658,
663 n.4 (8th Cir. 1989); United States v. Buckner, 717 F.2d 297, 299-
300 (6th Cir. 1983). However, a leading treatise observes that if
                                                       (continued...)
4                                                    No. 08-2295

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, 602 (1980). Of course, the warrant application
process does not protect the Fourth Amendment
interests of third parties. Thus, if officers enter a
third party’s residence in order to effect an arrest, the
third party herself may have a Fourth Amendment claim
against the officers. This is the holding of United States
v. Steagald, 451 U.S. 204 (1981). However, in Steagald, the
court was quite explicit that “the narrow issue before [the
Court was] whether an arrest warrant—as opposed to a
search warrant—is adequate to protect the Fourth Amend-
ment interests of persons not named in the warrant.” Id. at
212 (emphasis added). Because it addresses only the
Fourth Amendment rights of persons not named in an
arrest warrant, Steagald did not hold that the subject of an



1
  (...continued)
the arrestee himself lacks standing to challenge an illegal search,
then this would “render the Steagald rule a virtual nullity.”
6 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 11.3 (4th ed. 2008). Not surprisingly, therefore,
the prevailing view appears to be that a suspect retains a
sufficient expectation of privacy to challenge a search where
the police lack a reasonable belief that the person to be
arrested may be found in the place to be searched. See, e.g.,
United States v. Boyd 180 F.3d 967, 977-78 (8th Cir. 1999);
Valdez v. McPheters, 172 F.3d 1220, 1225-26 (10th Cir. 1999);
United States v. Edmonds, 52 F.3d 1236, 1247-48 (3d Cir. 1995).
No. 08-2295                                                     5

arrest warrant has a higher expectation of privacy in
another person’s residence than he does in his own. E.g.,
United States v. Underwood, 717 F.2d 482, 483-84 (9th Cir.
1983) (en banc). Further, nearly every court of appeals to
consider the issue has held that law enforcement
officers do not need a search warrant in addition to an
arrest warrant to enter a third party’s residence in order
to effect an arrest. See United States v. Agnew, 407 F.3d 193,
197 (3d Cir. 2005); United States v. Kaylor, 877 F.2d 658, 663
(8th Cir. 1989); Underwood, 717 F.2d at 483-84 (9th Cir.
1983); United States v. Buckner, 717 F.2d 297, 299-300 (6th
Cir. 1983).2
  Jackson argues that there is no difference between
searching a person’s home for evidence and searching
for a person. This argument conflates the resident’s
Fourth Amendment interest with that of the arrestee. If
officers unlawfully enter a person’s home, then that



2
   In United States v. Weems, 322 F.3d 18, 23 (1st Cir. 2003), the
First Circuit suggested that absent consent or exigent circum-
stances, police do require a search warrant as well as an
arrest warrant to arrest a suspect in a third party’s home.
However, the panel in Weems also broadens the exigent cir-
cumstances exception to the warrant requirement, suggesting
that an officer’s reasonable belief that an arrestee is inside
another’s home can constitute exigent circumstances and thus
justify a warrantless entry. Id. Thus, it appears that there is no
practical difference between the First Circuit’s understanding
of Steagald—according to which reasonable belief that a suspect
is within a third party’s home can constitute exigent circum-
stances—and that of the other circuits—according to which
a separate search warrant is not required.
6                                                   No. 08-2295

person may have a civil claim for damages against the
officers. If the officers uncover evidence that the resi-
dent committed a crime, then the evidence may be sup-
pressed. But again, it would be anomalous if the subject
of an arrest warrant had a greater expectation of privacy
in another person’s home than he had in his own.
  Although officers do not need a search warrant to
execute an arrest warrant in a third party’s home, they
do need some basis for believing that the suspect is
actually present in the home. This court has not
addressed what degree of suspicion officers need in
order to enter a third party’s home to execute an arrest
warrant. In Payton, the Supreme Court held that an arrest
warrant “carries with it the limited authority to enter a
dwelling when there is reason to believe the suspect is
within.” 445 U.S. at 602 (emphasis added).
  Our sister circuits disagree about what “reasonable
belief” actually entails and whether its meaning is dif-
ferent from probable cause. By our count, three circuits
have explicitly concluded that reasonable belief requires
a lesser degree of knowledge than probable cause. See
United States v. Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005);
Valdez v. McPheters, 172 F.3d 1220, 1227 n.5 (10th Cir. 1999);
United States v. Lauter, 57 F.3d 212, 215 (2d Cir. 1995).3 The



3
  The D.C. Circuit has put the count at six, including the Fifth,
Eighth and Eleventh Circuits among the courts of appeals to
hold that “reasonable belief” requires less than probable cause.
Thomas, 172 F.3d at 286. However, the relevant cases from these
                                                   (continued...)
No. 08-2295                                                    7

courts in these cases conclude that the Supreme Court
“used a phrase other than ‘probable cause’ because it
meant something other than ‘probable cause.’ ” Thomas,
429 F.3d at 286.4
  Four other circuits have disagreed, holding that “reason-
able belief” amounts to the same thing as “probable cause.”
See 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. Gorman, 314 F.3d 1105, 1111 (9th Cir.
2002); United States v. Magluta, 44 F.3d 1530, 1535 (11th
Cir. 1995). As Judge Clay explained in a concurring opin-
ion, the Supreme Court tends to use phrases like “rea-
sonable grounds for belief” as “grammatical analogue[s]”
for probable cause. United States v. Pruitt, 458 F.3d 477, 490
(6th Cir. 2006) (Clay, J., concurring) (citing cases). To wit,
in Maryland v. Pringle, 540 U.S. 366 (2003), the Court
appears to use “reasonable belief” to define probable



(...continued)
other circuits simply apply the “reasonable belief” standard
without deciding the degree of suspicion that the standard
requires.
4
   Although the above-cited cases state that “reasonable belief”
is satisfied by something short of probable cause, in all but one
of these cases, the courts found that the officers’ degree of
suspicion satisfied the higher, probable cause standard. See,
e.g., Lauter, 57 F.3d at 215. The D.C. Circuit’s Thomas decision
was the only case that we have found where a court upheld a
search of a third party’s residence based on something less
than probable cause. Thus, it is at least arguable that the
discussion of “reasonable belief” in the other cases was dicta.
8                                               No. 08-2295

cause. Id. at 371 (“[T]he substance of all the definitions of
probable cause is a reasonable ground for belief of guilt.”).
  Were we to reach the issue, we might be inclined to
adopt the view of the narrow majority of our sister
circuits that “reasonable belief” is synonymous with
probable cause. However, we need not decide whether
“reasonable belief” requires probable cause or something
less than probable cause because in the present case the
police had enough evidence to easily satisfy a probable
cause standard. The police received a tip that Jackson
was staying at Joseph’s apartment and that he would be
there the following morning. When the police arrived at
the apartment, they asked Jackson’s girlfriend if Jackson
was inside and she nodded yes and started crying. This
was more than enough to lead a prudent person to
believe that Jackson was inside the apartment when he or
she entered. See Jones v. Webb, 45 F.3d 178, 181 (7th Cir.
1995) (defining probable cause as existing when the
facts and circumstances within a police officer’s knowl-
edge are sufficient to warrant a prudent person in such
a belief). Thus, we need not decide whether “reasonable
belief” can constitute less than probable cause; the
police clearly had probable cause in this case.


    B. Jackson’s Sentence
  Jackson also argues that his sentence was unreasonable.
The district court imposed a 96 month sentence, which
was more than twice the high end of Jackson’s Guide-
lines range. We review the reasonableness of Jackson’s
sentence for abuse of discretion. Gall v. United States, 128
No. 08-2295                                                  9

S. Ct. 586, 591 (2007); United States v. Jackson, 547 F.3d
786, 792 (7th Cir. 2008). No presumption of unreason-
ableness attaches to a sentence simply because it falls
outside the Guidelines range. Gall, 128 S. Ct. at 595.
   The principal basis for the enhanced sentence was
the court’s conclusion that Jackson was dangerous and
incorrigible, explaining that a higher than Guidelines
sentence was needed “to stop you [Jackson] before you
kill somebody or before you get killed.” This conclusion,
in turn, was based primarily on the court’s finding that
Jackson had used the gun he was convicted of possessing
to shoot someone. Recall that although Jackson was
ultimately charged with possession of a firearm by a
convicted felon, he was arrested pursuant to an arrest
warrant for aggravated battery. Roughly two months
before his arrest, Jackson was alleged to have shot a man
who had apparently made romantic overtures toward
his girlfriend, Tyneesha Barbary. An officer witnessed
Jackson flee the scene with his hand in his waistband as
if he were concealing a gun. Barbary later gave a sworn
statement that Jackson was the shooter. 5 And the victim
himself identified Jackson as the shooter.
  In addition to the evidence that Jackson had used the
gun he was charged with possessing to shoot his romantic



5
  Jackson makes a great deal of the fact that Barbary testified
that she saw Jackson with two different guns, but that the
district court apparently misunderstood her testimony and
assumed she was referring throughout to the same gun. We
agree with the government that the district court’s confusion
was harmless error.
10                                            No. 08-2295

rival, the district court also noted that Jackson had been
convicted of weapons possession on multiple occasions,
that he had actually shot people on at least two other
occasions and that he had not adjusted well to parole.
Further, while Jackson argues that the district court
impermissibly focused on charges that were dropped or
dismissed, this is an overstatement: Jackson has been
convicted of multiple violent crimes.
  In short, it was not unreasonable for the court to con-
clude that Jackson is a menace, and therefore that an
above-Guidelines sentence was needed to deter further
criminal activity. The judgment of conviction and sen-
tence are
                                               A FFIRMED.




                          8-6-09
