
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                      _________        No. 95-1814                              JOANNE JOYCE, INDIVIDUALLY                          AND AS EXECUTRIX OF THE ESTATE OF                                   JAMES D. JOYCE,                                Plaintiff, Appellant,                                          v.                          TOWN OF TEWKSBURY, MASSACHUSETTS,                            JOHN R. MACKEY, ALFRED DONOVAN                                  AND ROBERT BUDRYK,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Campbell, Senior Circuit Judge,                                     ____________________                   Selya, Boudin, Stahl and Lynch, Circuit Judges.                                                   ______________                                 ____________________                                    April 29, 1997                                                                            ____________________                                   OPINION EN BANC                                 ____________________            Robert LeRoux  Hernandez  with  whom  Law  Offices  of  Robert  L.            ________________________              ____________________________        Hernandez were on brief for appellant.        _________            Larry  W.  Yackle  with  whom  John  Reinstein  was  on  brief for            _________________              _______________        American Civil Liberties Union of Massachusetts, amicus curiae.            Leonard  H.  Kesten  with  whom  Deidre  Brennan  Regan,  Kurt  B.            ___________________              ______________________   ________        Fliegauf  and Brody,  Hardoon,  Perkins &  Kestin  were on  brief  for        ________      ___________________________________        appellees.                 Per Curiam.    We are concerned on this  appeal with the                 __________            decision of  the district court granting  summary judgment on            one  of the several claims  that have been  litigated in this            case, specifically, a  claim that police  entry into a  house            without  a search  warrant  violated  the  Fourth  Amendment.            Review is  de novo and the  facts are set forth  in the light                       _______            most favorable to  the party opposing  summary judgment.   Le                                                                       __            Blanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993),            _____    __________________            cert. denied, 511 U.S. 1018 (1994).            ____________                 Late on the evening  of August 6, 1989,  officers Alfred            Donovan and Robert Budryk  arrived at the home of  Joanne and            James Joyce  ("the Joyces")  in Tewksbury, seeking  to arrest            the  Joyces' son, Lance Joyce.   Although Lance  did not live            with his parents, the  police had received a call  earlier in            the evening from Lance's ex-girlfriend informing them that he            was  there.   Allegedly, an  outstanding warrant  existed for            Lance's  arrest  on  a  charge of  violating  a  chapter 209A            domestic restraining order.  Mass. Gen. Laws ch. 209A,   7.                 Lance answered  the officers' knock at  the Joyces' side            door,  opening the interior door but keeping the outer screen            door closed.  Officer Budryk told Lance that the officers had            a  warrant for  his arrest,  and asked  him to  step outside.            Instead,  Lance retorted  "ya  right" and  withdrew from  the            doorway, calling for his  mother.   The police  followed him.            Joanne Joyce, who  had been asleep,  then came downstairs  to                                         -2-                                         -2-            find her son and  the police officers standing in  her dining            room.  Her husband entered the room a few minutes later.                 The  Joyces asked  the officers  what was  going on  and            whether they had a warrant; the officers explained that  they            were there to  arrest Lance and that a warrant for his arrest            existed,  although they  did not  have it  with them.   James            Joyce left the  room with  a third officer  (who had  arrived            separately) to call  the police  department, which  confirmed            Donovan   and  Budryk's  understanding   that  there  was  an            outstanding warrant for Lance's arrest.                 While her husband was gone, a scuffle ensued between the            police officers and  Joanne Joyce.  Joanne  Joyce admits that            she protested  Lance's immediate arrest, although  she denies            pushing  the  police officers  away.    One of  the  officers            grasped  Joanne  Joyce's  upper  arms and  moved  her  aside,            allowing them to handcuff Lance and secure his arrest; Joanne            Joyce  claims that one of the officers threatened to kill her            unless she got out of the way.  Joanne Joyce was charged with            assault and battery but acquitted in a state court jury trial            in February 1990.                 In April 1990, the Joyces brought suit alleging that the            officers,  the chief of police  and the town  had violated 42            U.S.C.   1983  and the Massachusetts Civil  Rights Act, Mass.            Gen. Laws ch. 12,   11I.   The section 1983 claims were based            upon  alleged  violations   of  the  Fourth   and  Fourteenth                                         -3-                                         -3-            Amendments  during  the  officers'  entry  without  a  search            warrant  into the  Joyce home  and  claimed use  of excessive            force in arresting Lance Joyce.  The Joyces also claimed that            the officers had  committed assault and  battery, intentional            infliction  of emotional distress  and malicious prosecution,            and that the town had negligently trained and  supervised the            officers in  violation of the Massachusetts  Tort Claims Act,            Mass. Gen. Laws ch. 258.                 The defendants  moved for summary judgment  on the issue            of  illegal entry.  Citing United States v. Santana, 427 U.S.                                       _____________    _______            38 (1976), they  said that  the police had  not violated  the            Fourth  Amendment  because they  entered  the  Joyce home  in            pursuit  of  Lance Joyce  whom they  were  in the  process of            lawfully arresting.   The district court  granted defendants'            motion  by  margin  order,  explaining that  "[t]here  is  no            evidence in the  record to  support [that] the  entry was  in            violation of the Fourth Amendment."                 A jury trial followed.   The record indicates that  only            three  of  the remaining  claims were  presented at  trial: a            section 1983  claim alleging  that the officers  had violated            the Fourth Amendment by using excessive force to arrest Lance            Joyce,  causing  his mother  injury; a  malicious prosecution            claim; and  a Massachusetts Civil  Rights Act claim  based on            the alleged threat by the officers to Joanne Joyce during the                                         -4-                                         -4-            altercation.  The jury returned a  verdict for the defendants            on all counts.                   Joanne  Joyce then  appealed on  her own  behalf and  as            executrix of  the estate of James Joyce.   She asked not only            for reversal  of the  summary judgment  grant on  the illegal            entry claim but  also for a  new trial  on the other  claims,            arguing  that  the trial  of  the latter  claims  was tainted            because the jury was not  allowed to consider unlawful  entry            as one  of the circumstances incident to the excessive force,            malicious prosecution and MCRA claims.  A panel of this court            affirmed the district court's grant of summary judgment.                 Joanne  Joyce  then  petitioned for  rehearing  en banc,                                                                 _______            supported  by the  American Civil  Liberties Union  as amicus                                                                   ______            curiae.  Both urge that the officers' entry, without a search            ______            warrant,  violated  the  Fourth Amendment;  they  distinguish            Santana  on the ground that the suspect there was standing in            _______            public space (just outside her house) when the police engaged            her,  while   Lance  Joyce  was  inside   his  parents'  home            throughout.   Joyce also argues that  the underlying offense,            violation of  a  restraining order,  is  not a  felony  under            Massachusetts law.                 In considering  the petition  for rehearing en  banc, we                                                             ________            concluded  that  the  claim  against the  officers  might  be            foreclosed by qualified immunity.  Accordingly, we  requested            supplemental  memoranda.  Having considered the memoranda, we                                         -5-                                         -5-            have decided to grant  rehearing en banc, withdraw  the panel                                             _______            opinion, and substitute  this opinion as the en  banc court's                                                         ________            resolution of  the appeal.  Because  qualified immunity turns            primarily on an appraisal of existing case law, oral argument            has been deemed unnecessary.                 When the police enter  the home of the person  they wish            to arrest, the arrest warrant suffices for entry if "there is            reason  to believe  the suspect  is within."   Payton  v. New                                                           ______     ___            York, 445 U.S. 573, 603 (1980).   But even when armed with an            ____            arrest warrant,  police must generally have  a search warrant            to  enter lawfully a third person's home.  Steagald v. United                                                       ________    ______            States,  451  U.S. 204,  212-13  (1981).   However,  a  third            ______            person's  house  may be  lawfully  entered  without a  search            warrant if exigent circumstances exist, Steagald, 451 U.S. at                                                    ________            213-14,  and  exigent  circumstances include  "hot  pursuit."            Santana, 427 U.S.  at 42-43; Hegarty  v. Somerset County,  53            _______                      _______     _______________            F.3d  1367, 1374  (1st Cir.),  cert. denied,  116 S.  Ct. 675                                           ____________            (1995).                   Here, the  defendants claim that Santana justified their                                                  _______            entrance into the Joyce home because they were in hot pursuit            of  Lance  Joyce.   Joanne Joyce  and  the ACLU  respond that            police first  engaged Santana when she was  outside her home,                                                        _______            standing directly  on her threshold.   Ultimately, they argue            that  to uphold  the entry  in this  case creates  a slippery            slope, allowing the  police to enter without a search warrant                                         -6-                                         -6-            if the police merely suspect that the person sought is inside            the house.                 The governing  case law under the  Fourth Amendment does            not  yield  very  many  bright  line  rules.    This  is  not            surprising   since  the   ultimate  touchstone   is   one  of            reasonableness:  the hot pursuit is only one of several well-            established examples of "exigent  circumstances" that make it            reasonable for the police to enter without obtaining a search            warrant.   See Minnesota v.  Olsen, 495 U.S.  91, 100 (1990);                       ___ _________     _____            Hegarty, 43 F.3d at  1374.  Conversely, we are  not impressed            _______            by the slippery slope argument:  entry where an arrest is not            already in progress,  or where the offense  is truly trivial,            would present quite a different case.                 But  even  within  this  reasonableness  framework,  the            present  case  is not  entirely  straightforward.   Santana's                                                                _______            exception  likely does not turn  on whether the individual is            standing immediately outside or immediately inside the  house            when  the police  first confront  him and attempt  an arrest.            And,  the fact  that  Massachusetts  classifies  the  alleged            violation  here  as a  misdemeanor does  not  reduce it  to a            "minor offense,"  see Welsh v.  Wisconsin, 466 U.S.  740, 753                              ___ _____     _________            (1984); we  agree with the panel that  "domestic violence and            violations  of protective  orders  are among  the more  grave            offenses affecting our society."                                         -7-                                         -7-                 On  the other hand, we have no information as to whether            Lance  Joyce's conduct that gave rise to the protective order            involved actual  violence, although  the police may  have had            some basis  for concern apart from the  protective order.1 We            have  ourselves suggested  that certain  "mitigating factors"            may undermine  an exigency showing, including  any inadequacy            in the opportunity afforded for a peaceable surrender and the            fact that entry  occurs at  nighttime.  Hegarty,  43 F.3d  at                                                    _______            1374.  So, there are arguments to be made on both sides.                   The Supreme Court cases,  with Steagald at one  pole and                                                ________            Santana at  the other,  do not definitively  resolve our  own            _______            case.  Even a quick review of lower court  cases reveals that            there  is no  settled answer as  to the  constitutionality of            doorway arrests.  See State v. Morse, 480 A.2d 183, 186 (N.H.                              ___ _____    _____            1984)  (collecting cases); 3 W. LaFave,  Search and Seizure                                                       __________________            6.1(e) (3d ed. 1996) (same).  Circuit court precedent is also            divided,  with some decisions  helpful to the  police in this            case and others less so.2                                              ____________________                 1The police officers' testimony at  trial indicated that            Lance  had   a  drinking   problem  (information  which   was            corroborated by  Mrs. Joyce's testimony), had  been placed in            protective  custody ten or eleven  times and arrested once or            twice by the  Tewksbury police, had resisted  arrest or tried            to  escape on prior  occasions, and that  officer Donovan had            been involved in a few of the earlier incidents.                 2Compare, e.g., United States  v. Rengifo, 858 F.2d 800,                  _____________  _____________     _______            804-05 (1st Cir.  1988), cert. denied,  490 U.S. 1023  (1989)                                     ____________            and United States v. Carrion, 809 F.2d 1120, 1123, 1128 & n.9            _________________    _______            (5th Cir. 1987) with  United States v. McCraw, 920  F.2d 224,                            ____  _____________    ______            229-30 (4th Cir. 1990)  and United States v. Curzi,  867 F.2d                                    ___ _____________    _____                                         -8-                                         -8-                 Given  the  unsettled  state  of  the law,  we  have  no            hesitation in concluding  that the officers in this  case are            protected  by   qualified  immunity  which   protects  public            officials  against section  1983  liability so  long as  they            acted  reasonably.   Hunter  v.  Bryant,  502 U.S.  224,  228                                 ______      ______            (1991);  Anderson v. Creighton, 483 U.S. 635, 639 (1987).  As                     ________    _________            the  Supreme Court  has  said,  qualified immunity  "provides            ample protection to all but the plainly  incompetent or those            who knowingly violate the  law."  Malley v. Briggs,  475 U.S.                                              ______    ______            335, 341  (1986).   The aim  is  to protect  those who  might            otherwise be deterred  from official duties for fear  that an            innocent mistake would create personal liability.                 The  critical point  here is  that officers  Donovan and            Budryk are "entitled to qualified immunity [so long as] their            decision was reasonable, even if mistaken."  Hunter, 502 U.S.                                     ________________    ______            at  229 (emphasis added); see  Veilleux v. Perschau, 101 F.3d                                      ___  ________    ________            1, 3 (1st  cir. 1996).   Thus,  the officers  are not  liable            unless  in the  circumstances of  this case it  is reasonably            well-established, and should therefore have been clear to the            officers,  that  the  entry  without  a  search  warrant  was            unlawful.   Because  it is  not even clear  that there  was a            violation--a point that we do not decide--there certainly was            no  violation so patent as to strip the officers of qualified            immunity.                                            ____________________            36, 40 (1st Cir. 1989).                                          -9-                                         -9-                 The  Joyces  also  sued  the town  under  section  1983,            alleging that its failure to properly train and supervise the            officers  resulted  in  their  unlawful entry  of  her  home.            Municipal liability under section  1983 is not vicarious, see                                                                      ___            St.  Louis  v.  Prapotnik,  485 U.S.  112,  128  (1988),  and            __________      _________            municipalities do not enjoy  qualified immunity, Owen v. City                                                             ____    ____            of Independence, 445  U.S. 622, 650 (1980).  Consequently, it            _______________            is  not impossible for a  municipality to be  held liable for            the  actions  of  lower-level  officers  who  are  themselves            entitled to  qualified immunity.   Walker v.  Waltham Housing                                               ______     _______________            Auth., 44 F.3d 1042, 1047 (1st Cir. 1995).              _____                 However,  our  rationale  here  for  granting  qualified            immunity to the officers--that the unsettled state of the law            made  it  reasonable to  believe  the  conduct in  this  case            constitutional--also    precludes     municipal    liability.            Tewksbury  could not have  been "deliberately indifferent" to            citizens' rights, Bowen v. City  of Manchester, 966 F.2d  13,                              _____    ___________________            18 (1st Cir.  1992), in  failing to teach  the officers  that            their  conduct  was unconstitutional.    We  need not  decide            whether the  Joyces have pointed to  evidence suggesting that            the  officers' conduct  was endorsed  by a  municipal policy.            See St. Hilaire v. City of Laconia, 71 F.3d 20,  29 (1st Cir.            ___ ___________    _______________            1995), cert. denied, 116 S. Ct. 2548 (1996).                   ____________                 There is some cost in not deciding the  Fourth Amendment            issue on the  merits, even in the form of dictum.  But the en                                                                       __                                         -10-                                         -10-            banc  court is  agreed that  qualified immunity  applies, and            ____            there  is less consensus  about the underlying constitutional            issue.   Indeed, some members  of the en  banc court consider                                                  ________            that  Donovan and Budryk's entry  into the Joyce  home was of            very   doubtful   legality   under   the   Fourth  Amendment.            Resolution  can properly  await  a case  where  the issue  is            decisive,  as it could easily be on a suppression claim where            qualified immunity does not apply.                 The  panel opinion  is  withdrawn and,  for the  reasons                                         _________            given above, the judgment  of the district court  is affirmed                                                                 ________            on grounds of qualified immunity.                                     Concurrence follows.                                     ___________________                                         -11-                                         -11-                    TORRUELLA,  Chief Judge  (concurring).   Resolving this                    TORRUELLA,  Chief Judge  (concurring).                                 ___________          damages   suit  on   qualified  immunity   grounds  is   entirely          appropriate,  because  the parties  exercised the  opportunity to          brief this issue, and because the issue of qualified immunity can          be "resolved  with  certitude on  the existing  record."   United                                                                     ______          States  v.  La  Guardia, 902  F.2d  1010,  1013  (1st Cir.  1990)          ______      ___________          (appellate  court has  discretion,  in the  exceptional case,  to          "reach virgin issues"); see  also  Nat'l Ass'n of  Social Workers                                  _________  ______________________________          v. Harwood,  69 F.3d 622, 627  (1st Cir. 1995).   One would think             _______          that a Fourth Amendment right cannot possibly be deemed  "clearly          established"  from the  point  of view  of  the defendant  police          officers when  a total of  seven judges,  including the  district          court, the appellate panel, and finally the en banc First Circuit          court,  are themselves in disagreement as to the precise scope of          that right.                        I write  separately, however, only because  I believe          that my  dissenting  brothers,  in  their  efforts  to  show  how          Steagald v.  United States, 451  U.S. 204 (1981)  is controlling,          ________     _____________          have  lost sight of the touchstone of Fourth Amendment law, which          is reasonableness.  See U.S. Const. Amend. IV ("The right  of the                              ___          people  to  be  secure  in  their  persons,  houses, papers,  and          effects, against unreasonable searches and seizures, shall not be                           ____________          violated . . . .") (emphasis added).  Our strong and  deep-seated          intuitions regarding  the sanctity  of the home  obviously inform          the determination of  what kinds  of searches are,  and are  not,          reasonable.    We  follow  the  Supreme  Court's  lead  in  these                                         -12-                                         -12-          difficult determinations, but where the unique facts of a case do          not fall squarely under any one Supreme Court precedent, as here,          we cannot help but consider the reasonableness of  the particular          search at issue.                      We  know from Santana  that it  may be  reasonable to                                    _______          follow  a  fleeing  suspect  from  the  threshold  of  a  private          residence into that residence, without a  search warrant, for the          purpose of effectuating an arrest.  Santana, 427 U.S. at 43 ("[A]                                              _______          suspect may not defeat an arrest  which has been set in motion in          a public place, and  is therefore proper under [United  States v.                                                          ______________          Watson, 423 U.S. 411  (1976)], by the expedient of escaping  to a          ______          private  place.").   We  also  know  from  Steagald  that  it  is                                                     ________          certainly  not  reasonable  to   simply  enter  a  third  party's                     ___          residence  without a search  warrant, in  the absence  of exigent          circumstances,  in  the  belief that  the  subject  of  an arrest          warrant is  inside.   One may  seek to  subsume the  present case          under  either  Santana  or Steagald    --  but  either way,  this                         _______     ________          requires that we draw some conclusions regarding their scope.  In          drawing  the  outlines of  the  "exigent  circumstances" or  "hot          pursuit"  exception,   I  find   myself   naturally  turning   to          reasonableness.                      The  precise   question,  then,  is  whether   it  is          reasonable for  police  officers, who  are  acting on  an  arrest          warrant arising  from the commission  of a jailable  offense, who          are standing a  few feet  away from, and  face-to-face with,  the          subject of that  arrest warrant (separated only by  a transparent                                         -13-                                         -13-          outer  screen door), who have  informed the same  subject that he          must  step outside because he is under  arrest, and who then find          that  the arrestee  refuses  to cooperate  and retreats  into the          residence, to follow  that arrestee  into the house  in order  to          effectuate the arrest.   (And add to this the  fact that although          the residence  belonged technically to a third party, a suspect's          parents' residence is often looked upon  as approximating his own          residence.)    Because  I  believe,  on  these  facts,  that  the          officers' entry and  arrest was reasonable, I  conclude that this          case  falls  under  the  "hot  pursuit"  rationale  discussed  in          Santana.  Let us not lose sight  of reasonableness in our efforts          _______          to  follow   precedents  that  are,  on   occasion,  not  clearly          determinative.                      This  said, it  may be  that this  particular damages          suit, with its spotty record, is not the best context in which to          define those "exigent circumstance" parameters on  the merits.  I          am confident, moreover, that  these defendants are fully entitled          to qualified  immunity.  After all,  this is not a  case in which                                                       ___          the police  entered an unrelated third-party's home  in search of          an  arrestee  without any  process at  all  -- such  action would          clearly  violate Steagald -- although some  members of this court                           ________          may  question  whether the  process  that was  followed  here was          enough to satisfy the Fourth Amendment.                         Concurrence follows.                         ___________________                                         -14-                                         -14-                      LYNCH,  Circuit  Judge (concurring).    While  I am                      LYNCH,  Circuit  Judge (concurring).                              ______________            sympathetic  to the  very  strong arguments  that the  police            violated the Fourth Amendment,  I join the per curiam.   That            the judges  of this court so strongly  disagree about whether            there  was a Fourth Amendment violation means that the law in            this  area is  not  so clearly  established  as to  make  the            officers'   actions  objectively unreasonable.   Anderson  v.                                                             ________            Creighton,  483  U.S.  635  (1987); St.  Hilaire  v.  City of            _________                           ____________      _______            Laconia, 71 F.3d  20 (1995).   The officers  are entitled  to            _______            immunity, given the state of the law in 1989.                                          Dissent follows.                                          _______________                                         -15-                                         -15-                      SELYA,  Circuit Judge,  with  whom  STAHL,  Circuit                      SELYA,  Circuit Judge,  with  whom  STAHL,  Circuit                              _____________                       _______            Judge, joins  (dissenting).  Though the  Fourth Amendment has            Judge, joins  (dissenting).            _____            fallen on hard times, a woman's home remains her castle.  The            en banc court, seeking cover under the doctrine of  qualified            immunity (a doctrine  which, as I understand  it, was neither            briefed  nor argued  to the  panel), effectively  condones an            unconstitutional encroachment  on the  sanctity of  the home.            Although  I applaud the  withdrawal of  the panel  opinion, I            cannot in good  conscience join  the opinion of  the en  banc            court; that  opinion admittedly  edges closer to  the holding            demanded  by  clearly established  law,  but  stops short  of            adhering  to  it  and, thus,  perpetuates  a constitutionally            intolerable result.  Respectfully and regretfully, I dissent.                      As  the  en  banc  court  faithfully  relates,  the            doctrine of qualified  immunity protects  state actors  whose            actions are reasonable, if  mistaken.  But qualified immunity            does   not   shield   violations   of   clearly   established            constitutional principles merely because the specific factual            situation in which a violation arises has novel features.  As            the  Supreme Court  recently noted  in the  immunity context,            "general statements  of the law are  not inherently incapable            of  giving  fair  and   clear  warning,  .  .  .   a  general            constitutional rule already identified in the  decisional law            may apply  with obvious clarity  to the  specific conduct  in            question, even  though the  very action  in question has  not                                         -16-                                         -16-            previously been held unlawful."  United States v. Lanier, 117                                             _____________    ______            S. Ct.  1219, 1227  (1997) (citation, brackets,  and internal            quotation marks omitted).  This is exactly such a case.                      In the  absence  of  exigent  circumstances     and            nothing  in the  instant  record suggests  any exigency,  let            alone demonstrates exigency to an extent that might carry the            day on summary  judgment   the  Fourth Amendment prohibits  a            warrantless,  non-consensual  entry  by  the  police  into  a            suspect's  home in order  to arrest him.   See  Payton v. New                                                       ___  ______    ___            York, 445 U.S. 573,  576 (1980).  Of course,  once the police            ____            procure  a valid arrest warrant, they may enter the suspect's            home  for the limited purpose  of effecting the  arrest.  See                                                                      ___            id. at 603.  But even then, the police may not enter a  third            ___                                                  _  _____            person's  home   without  consent,   a  search   warrant  (in            ________  ____            contradistinction   to  an   arrest   warrant),  or   exigent            circumstances.  See  Steagald v. United States, 451 U.S. 204,                            ___  ________    _____________            205-06, 212-15 (1981).                      In  this case  the police transgressed  the clearly            established  rule  laid  down by  the  Steagald  Court.   The                                                   ________            plaintiff,  Joanne Joyce, was not herself a suspect.  Yet the            defendant  officers entered  her  home  without her  consent,            without a search warrant,  and in the absence of  any exigent            circumstances.   To  be sure,  the defendants  had an  arrest            warrant for  the plaintiff's son,  Lance Joyce,  but that  is            scantconsolation becauseLance didnot livein hismother's home.                                         -17-                                         -17-                      In  stitching together a qualified immunity defense            from  this  poor-quality  cloth,  the en  banc  court  relies            heavily    indeed, almost exclusively    on United  States v.                                                        ______________            Santana, 427 U.S. 38 (1976).  The court's reliance strikes me            _______            as misplaced.  Santana is an "exigent circumstances" case; it                           _______            stands only for the proposition that when the police confront            a suspect whom they have probable cause to arrest in a public                                                              __ _ ______            place, and the suspect subsequently flees into  her own home,            _____            they may  pursue and  arrest her.   See id.  at 42-43.   That                                                ___ ___            proposition has no application here for  two reasons (each of            which is independently sufficient to defenestrate the en banc            court's reasoning).                      First,  under Steagald,  warrantless non-consensual                                    ________            searches of a third person's home are only excused by exigent            circumstances.  451 U.S. at 205-06.  Santana involved exigent                                                 _______            circumstances:  the hot  pursuit of a fleeing suspect  from a            public place into a private one.  427 U.S. at 42-43.  In this            case,  by contrast, there is  simply no evidence  of any need            for  pursuit   hot, cold,  or lukewarm.   Certainly, the mere            fact  that Lance Joyce, prompted by police action, moved from            one part of his  mother's home to another did  not create any            cognizable exigency.   See United States  v. Curzi, 867  F.2d                                   ___ _____________     _____            36, 40-43,  43 n.6  (1st Cir.  1989) (explaining  that police            officers  cannot use  exigent  circumstances that  they  have            created to justify a warrantless search).                                         -18-                                         -18-                      Second,   and  equally  important,  the  record  is            pellucid  that Lance  was  not in  a  public place  when  the            officers first confronted him; although he opened an interior            door,  he remained  completely within the  house and  kept an            exterior  weather  door  between  himself  and  the  officers            entirely shut.  While the en banc court blithely asserts that            Santana  does not  turn on  whether the  individual  whom the            _______            police  desire to apprehend is inside or outside a house when            the first contact occurs, this distinction makes every bit of            difference.3   The rule prohibiting  warrantless invasions of            third  parties'  homes  emerged  in  Steagald,  a  case  that                                                 ________            followed  and  interpreted  Santana.   Rather  than extending                                        _______            Santana,  Steagald,  451 U.S.  at  214  n.7, 222,  reinforces            _______   ________            Payton,  a case  in which  the Supreme  Court concluded  that            ______            "physical entry of the  home is the chief evil  against which            the wording of the  Fourth Amendment is directed."   445 U.S.            at  585  (citation  omitted).    Consequently,  "the   Fourth            Amendment  has drawn  a  firm line  at  the entrance  to  the            house."  Id. at 590.  The Constitution does not equivocate on                     ___                                            ____________________            3.  Recent Supreme Court case law confirms that police action            directed at individuals  within the confines of a dwelling is            subject   to   intense    constitutional   scrutiny.      The            constitutional   requirement   to   "knock   and   announce,"            established in  Wilson v. Arkansas, 115 S.  Ct. 1914, 1915-16                            ______    ________            (1995), pertains  only when the subject of the arrest warrant            is within a dwelling.   The elevation of this  requirement to            constitutional status can only be understood  in terms of the            special  protection granted  those persons  who are  within a            private home's confines  when the police first arrive  on the            scene.                                         -19-                                         -19-            this point.  See  United States v. Berkowitz, 927  F.2d 1376,                         ___  _____________    _________            1388 (7th  Cir. 1991) ("Payton did  not draw the  line one or                                    ______            two  feet into  the  home; it  drew the  line  at the  home's            entrance."); State v. Morse, 480 A.2d 183, 186 (N.H. 1984); 3                         _____    _____            W. LaFave, Search  and Seizure   6.1(e)  (3d ed. 1996).   Nor                       ___________________            should we.                      In  sum, I believe that  the officers' entry into a            third  party's  home  in  the absence  of  consent,  a search            warrant, or  exigent circumstances plainly  violated Steagald                                                                 ________            and thus violated the homeowner's clearly established  Fourth            Amendment rights.  See United States v. McCraw, 920 F.2d 224,                               ___ _____________    ______            228-29 (4th Cir. 1990) (rejecting use of Santana when door to                                                     _______            dwelling was only partially opened from within).  By  hedging            on  this point,  the  en  banc  court  not  only  denies  the            plaintiff her day in court but also invites the proliferation            of such incidents.  Since we will be seen as sanctioning that            which we are unwilling to condemn, I respectfully dissent.                                         -20-                                         -20-
