U.S. Supreme Court Payton v. New York, 445
U.S. 573 (1980) Payton v. New York No. 78-5420 Argued March 26, 1979 Reargued October 9,
1979 Decided April 15, 1980 445
U.S. 573 ast|>* 445
U.S. 573 APPEAL FROM THE COURT OF APPEALS OF
NEW YORK Syllabus These appeals challenge the constitutionality of New York
statutes authorizing police officers to enter a private residence
without a warrant and with force, if necessary, to make a routine
felony arrest. In each of the appeals, police officers, acting with
probable cause but without warrants, had gone to the appellant's
residence to arrest the appellant on a felony charge and had
entered the premises without the consent of any occupant. In each
case, the New York trial judge held that the warrantless entry was
authorized by New York statutes and refused to suppress evidence
that was seized upon the entry. Treating both cases as involving
routine arrests in which there was ample time to obtain a warrant,
the New York Court of Appeals, in a single opinion, ultimately
affirmed the convictions of both appellants. Held: The Fourth Amendment, made applicable to the
States by the Fourteenth Amendment, prohibits the police from
making a warrantless and nonconsensual entry into a suspect's home
in order to make a routine felony arrest. Pp. 445 U. S.
583 -603.

															(a) The physical entry of the home is the chief evil against
which the wording of the Fourth Amendment is directed. To be
arrested in the home involves not only the invasion attendant to
all arrests, but also an invasion of the sanctity of the home,
which is too substantial an invasion to allow without a warrant, in
the absence of exigent circumstances, even when it is accomplished
under statutory authority and when probable cause is present. In
terms that apply equally to seizures of property and to seizures of
persons, the Fourth Amendment has drawn a firm line at the entrance
to the house. Absent exigent circumstances, that threshold may not
reasonably be crossed without a warrant. Pp 445 U. S.
583 -590.

															(b) The reasons for upholding warrantless arrests in a public
place, cf. United States v. Watson, 423 U.
S. 411 , do not apply to warrantless invasions of the
privacy of the home. The common law rule on warrantless home
arrests was not as clear as the rule on arrests in public places;
the weight of authority as it appeared to the Framers of the Page 445 U. S. 574 Fourth Amendment was to the effect that a warrant was required
for a home arrest, or, at the minimum, that there were substantial
risks in proceeding without one. Although a majority of the States
that have taken a position on the question permit warrantless home
arrests even in the absence of exigent circumstances, there is an
obvious declining trend, and there is by no means the kind of
virtual unanimity on this question that was present in United
States v. Watson, supra, with regard to warrantless public
arrests. And, unlike the situation in Watson, no federal
statutes have been cited to indicate any congressional
determination that warrantless entries into the home are
"reasonable." Pp. 445 U. S.
590 -601.

															(c) 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. Pp. 445 U. S.
602 -603.

															45 N.Y.2d 300, 380 N.E.2d 224, reversed and remanded.

															STEVENS, J., delivered the opinion of the Court, in which
BRENNAN, STEWART, MARSHALL, BLACKMUN, and POWELL, JJ., joined.
BLACKMUN, J., filed a concurring opinion, post, p. 445 U. S. 603 .
WHITE, J., filed a dissenting opinion, in which BURGER, C.J., and
REHNQUIST, J., joined, post, p. 445 U. S. 603 .
REHNQUIST, J., filed a dissenting opinion, post, p. 445 U. S.
620 .

															MR. JUSTICE STEVENS delivered the opinion of the Court.

															These appeals challenge the constitutionality of New York
statutes that authorize police officers to enter a private
residence without a warrant and with force, if necessary, to make a
routine felony arrest.

															The important constitutional question presented by this
challenge has been expressly left open in a number of our prior
opinions. In United States v. Watson, 423 U.
S. 411 , we upheld a warrantless "midday public arrest,"
expressly noting that the case did not pose "the still unsettled
question Page 445 U. S. 575 . . . whether and under what circumstances an officer may
enter a suspect's home to make a warrantless arrest.'" Id. at 423 U. S. 418 ,
n. 6. [ Footnote 1 ] The question
has been answered in different ways by other appellate courts. The
Supreme Court of Florida rejected the constitutional attack,
[ Footnote 2 ] as did the New
York Court of Appeals in this case. The courts of last resort in 10
other States, however, have held that, unless special circumstances
are present, warrantless arrests in the home are unconstitutional.
[ Footnote 3 ] Of the seven
United States Courts of Appeals that have considered the question,
five have expressed the opinion that such arrests are
unconstitutional. [ Footnote
4 ] Page 445 U. S. 576 Last Term, we noted probable jurisdiction of these appeals in
order to address that question. 439 U.S. 1044. After hearing oral
argument, we set the case for reargument this Term. 441 U.S. 930.
We now reverse the New York Court of Appeals and hold that the
Fourth Amendment to the United States Constitution, made applicable
to the States by the Fourteenth Amendment, Mapp v. Ohio, 367 U. S. 643 ; Wolf v. Colorado, 33 U. S. 25 ,
prohibits the police from making a warrantless and nonconsensual
entry into a suspect's home in order to make a routine felony
arrest.

															We first state the facts of both cases in some detail and put to
one side certain related questions that are not presented by these
records. We then explain why the New York statutes are not
consistent with the Fourth Amendment and why the reasons for
upholding warrantless arrests in a public place do not apply to
warrantless invasions of the privacy of the home. I On January 14, 1970, after two days of intensive investigation,
New York detectives had assembled evidence sufficient to establish
probable cause to believe that Theodore Payton had murdered the
manager of a gas station two days earlier. At about 7:30 a.m. on
January 15, six officers went to Payton's apartment in the Bronx,
intending to arrest him. They had not obtained a warrant. Although
light and music emanated from the apartment, there was no response
to their knock on the metal door. They summoned emergency
assistance and, about 30 minutes later, used crowbars to break open
the door and enter the apartment. No one was there. In plain view,
however, was a .30-caliber shell casing that was Page 445 U. S. 577 seized and later admitted into evidence at Payton's murder
trial. [ Footnote 5 ]

															In due course, Payton surrendered to the police, was indicted
for murder, and moved to suppress the evidence taken from his
apartment. The trial judge held that the warrantless and forcible
entry was authorized by the New York Code of Criminal Procedure,
[ Footnote 6 ] and that the
evidence in plain view was properly seized. He found that exigent
circumstances justified the officers' failure to announce their
purpose before entering the apartment, as required by the statute.
[ Footnote 7 ] He had no Page 445 U. S. 578 occasion, however, to decide whether those circumstances also
would have justified the failure to obtain a warrant, because he
concluded that the warrantless entry was adequately supported by
the statute without regard to the circumstances. The Appellate
Division, First Department, summarily affirmed. [ Footnote 8 ] On March 14, 1974, Obie Riddick
was arrested for the commission of two armed robberies that had
occurred in 1971. He had been identified by the victims in June,
1973, and in January, 1974, the police had learned his address.
They did not obtain a warrant for his arrest. At about noon on
March 14, a detective, accompanied by three other officers, knocked
on the door of the Queens house where Riddick was living. When his
young son opened the door, they could see Riddick sitting in bed
covered by a sheet. They entered the house and placed him under
arrest. Before permitting him to dress, they opened a chest of
drawers two feet from the bed in search of weapons and found
narcotics and related paraphernalia. Riddick was subsequently
indicted on narcotics charges. At a suppression hearing, the trial
judge held that the warrantless entry into his home was authorized
by the revised New York statute, [ Footnote 9 ] and that the search of the immediate Page 445 U. S. 579 area was reasonable under Chimel v. California, 395 U. S. 752 .
[ Footnote 10 ] The Appellate
Division, Second Department, affirmed the denial of the suppression
motion. [ Footnote 11 ]

															The New York Court of Appeals, in a single opinion, affirmed the
convictions of both Payton and Riddick. 45 N.Y.2d 300, 380 N.E.2d
224 (1978). The court recognized that the question whether and
under what circumstances an officer may enter a suspect's home to
make a warrantless arrest had not been settled either by that court
or by this Court. [ Footnote
12 ] In answering that question, the majority of four judges
relied primarily on its perception that there is a

															". . . substantial difference between the intrusion which
attends an entry for the purpose of searching the premises and that
which results from an entry for the purpose of Page 445 U. S. 580 making an arrest, and [a] significant difference in the
governmental interest in achieving the objective of the intrusion
in the two instances." Id. at 310, 380 N.E.2d at 228-229. [ Footnote 13 ] Page 445 U. S. 581 The majority supported its holding by noting the "apparent
historical acceptance" of warrantless entries to make felony
arrests, both in the English common law and in the practice of many
American States. [ Footnote
14 ]

															Three members of the New York Court of Appeals dissented on this
issue because they believed that the Constitution requires the
police to obtain a "warrant to enter a home in order to arrest or
seize a person, unless there are exigent circumstances." [ Footnote 15 ] Starting from the
premise that, except in carefully circumscribed instances, "the
Fourth Amendment forbids police entry into a private home to search
for and seize an object without a warrant," [ Footnote 16 ] the dissenters reasoned that an
arrest of the person involves an even greater invasion of privacy,
and should therefore be attended with at least as Page 445 U. S. 582 great a measure of constitutional protection. [ Footnote 17 ] The dissenters noted

															"the existence of statutes and the American Law Institute
imprimatur codifying the common law rule authorizing warrantless
arrests in private homes,"

															and acknowledged that "the statutory authority of a police
officer to make a warrantless arrest in this State has been in
effect for almost 100 years," but concluded that "neither antiquity
nor legislative unanimity can be determinative of the grave
constitutional question presented," and "can never be a substitute
for reasoned analysis." [ Footnote 18 ]

															Before addressing the narrow question presented by these
appeals, [ Footnote 19 ] we
put to one side other related problems that are Page 445 U. S. 583 not presented today. Although it is arguable that the
warrantless entry to effect Payton's arrest might have been
justified by exigent circumstances, none of the New York courts
relied on any such justification. The Court of Appeals majority
treated both Payton's and Riddick's cases as involving routine
arrests in which there was ample time to obtain a warrant,
[ Footnote 20 ] and we will do
the same. Accordingly, we have no occasion to consider the sort of
emergency or dangerous situation, described in our cases as
"exigent circumstances," that would justify a warrantless entry
into a home for the purpose of either arrest or search.

															Nor do these cases raise any question concerning the authority
of the police, without either a search or arrest warrant, to enter
a third party's home to arrest a suspect. The police broke into
Payton's apartment intending to arrest Payton, and they arrested
Riddick in his own dwelling. We also note that in neither case is
it argued that the police lacked probable cause to believe that the
suspect was at home when they entered. Finally, in both cases we
are dealing with entries into homes made without the consent of any
occupant. In Payton, the police used crowbars to break
down the door, and in Riddick, although his 3-year-old son
answered the door, the police entered before Riddick had an
opportunity either to object or to consent. II It is familiar history that indiscriminate searches and seizures
conducted under the authority of "general warrants" were the
immediate evils that motivated the framing and adoption of the
Fourth Amendment. [ Footnote
21 ] Indeed, as originally Page 445 U. S. 584 proposed in the House of Representatives, the draft contained
only one clause, which directly imposed limitations on the issuance
of warrants, but imposed no express restrictions on warrantless
searches or seizures. [ Footnote
22 ] As it was ultimately adopted. however, the Amendment
contained two separate clauses, the first protecting the basic
right to be free from unreasonable searches and seizures and the
second requiring that warrants be particular and supported by
probable cause. [ Footnote
23 ] The Amendment provides:

															"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches Page 445 U. S. 585 and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the
persons or things to be seized."

															It is thus perfectly clear that the evil the Amendment was
designed to prevent was broader than the abuse of a general
warrant. Unreasonable searches or seizures conducted without any
warrant at all are condemned by the plain language of the first
clause of the Amendment. Almost 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, and "apply to all invasions on the part of the
government and its employes of the sanctity of a man's home and the
privacies of life." Boyd v. United States, 116 U.
S. 616 , 116 U. S. 630 .
Without pausing to consider whether that broad language may require
some qualification, it is sufficient to note that the warrantless
arrest of a person is a species of seizure required by the
Amendment to be reasonable. Beck v. Ohio, 379 U. S.
89 . Cf. Delaware v. Prouse, 440 U. S.
48 . Indeed, as MR. JUSTICE POWELL noted in his
concurrence in United States v. Watson, the arrest of a
person is "quintessentially a seizure." 423 U.S. at 423 U. S.
428 .

															The simple language of the Amendment applies equally to seizures
of persons and to seizures of property. Our analysis in this case
may therefore properly commence with rules that have been well
established in Fourth Amendment litigation involving tangible
items. As the Court reiterated just a few years ago, the "physical
entry of the home is the chief evil against which the wording of
the Fourth Amendment is directed." United
States v. United States District Court , Page 445 U. S. 586 407 U. S. 297 , 407 U. S. 313 .
And we have long adhered to the view that the warrant procedure
minimizes the danger of needless intrusions of that sort. [ Footnote 24 ]

															It is a "basic principle of Fourth Amendment law" that searches
and seizures inside a home without a warrant are presumptively
unreasonable. [ Footnote 25 ]
Yet it is also well settled that Page 445 U. S. 587 objects such as weapons or contraband found in a public place
may be seized by the police without a warrant. The seizure of
property in plain view involve no invasion of privacy and is
presumptively reasonable, assuming that there is probable cause to
associate the property with criminal activity. The distinction
between a warrantless seizure in an open area and such a seizure on
private premises was plainly stated in G. M. Leasing Corp. v.
United States, 429 U. S. 338 , 429 U. S.
354 :

															"It is one thing to seize without a warrant property resting in
an open area or seizable by levy without an intrusion into privacy,
and it is quite another thing to effect a warrantless seizure of
property, even that owned by a corporation, situated on private
premises to which access is not otherwise available for the seizing
officer."

															As the late Judge Leventhal recognized, this distinction has
equal force when the seizure of a person is involved. Writing on
the constitutional issue now before us for the United States Court
of Appeals for the District of Columbia Circuit sitting en banc, Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d
385 (1970), Judge Leventhal first noted the settled rule that
warrantless arrests in public places are valid. He immediately
recognized, however, that

															"[a] greater burden is placed . . . on officials who enter a
home or dwelling without consent. Freedom from intrusion into the
home or dwelling is the archetype of the privacy protection secured
by the Fourth Amendment." Id. at 317, 435 F.2d at 389. (Footnote omitted.)

															His analysis of this question then focused on the long-settled
premise that, absent exigent circumstances, a warrantless Page 445 U. S. 588 entry to search for weapons or contraband is unconstitutional
even when a felony has been committed and there is probable cause
to believe that incriminating evidence will be found within.
[ Footnote 26 ] He reasoned
that the constitutional protection afforded to the individual's
interest in the privacy of his own home is equally applicable to a
warrantless entry for the purpose of arresting a resident of the
house; for it is inherent in such an entry that a search for the
suspect may be required before he can be apprehended. [ Footnote 27 ] Judge Leventhal
concluded that an entry to arrest and an entry to search for and to
seize property implicate the same interest in preserving the
privacy and the sanctity of the home, and justify the same level of
constitutional protection.

															This reasoning has been followed in other Circuits. [ Footnote 28 ] Thus, the Second
Circuit recently summarized its position:

															"To be arrested in the home involves not only the invasion Page 445 U. S. 589 attendant to all arrests, but also an invasion of the sanctity
of the home. This is simply too substantial an invasion to allow
without a warrant, at least in the absence of exigent
circumstances, even when it is accomplished under statutory
authority and when probable cause is clearly present." United States v. Reed, 572 F.2d 412, 423 (1978), cert. denied sub nom. Goldsmith v. United States, 439 U.S.
913. We find this reasoning to be persuasive and in accord with
this Court's Fourth Amendment decisions.

															The majority of the New York Court of Appeals, however,
suggested that there is a substantial difference in the relative
intrusiveness of an entry to search for property and an entry to
search for a person. See n 13, supra. It is true that the area that may
legally be searched is broader when executing a search warrant than
when executing an arrest warrant in the home. See Chimel v.
California, 395 U. S. 752 .
This difference may be more theoretical than real, however, because
the police may need to check the entire premises for safety
reasons, and sometimes they ignore the restrictions on searches
incident to arrest. [ Footnote
29 ]

															But the critical point is that any differences in the
intrusiveness of entries to search and entries to arrest are merely
ones of degree, rather than kind. The two intrusions share this
fundamental characteristic: the breach of the entrance to an
individual's home. The Fourth Amendment protects the individual's
privacy in a variety of settings. In none is the zone of privacy
more clearly defined than when bounded by the unambiguous physical
dimensions of an individual's home -- a zone that finds its roots
in clear and specific constitutional terms: "The right of the
people to be secure in their . . . houses . . . shall not be
violated." That language unequivocally establishes the proposition
that,

															"[a]t the very Page 445 U. S. 590 core [of the Fourth Amendment] stands the right of a man to
retreat into his own home and there be free from unreasonable
governmental intrusion." Silverman v. United States, 365 U.
S. 505 , 365 U. S. 511 .
In terms that apply equally to seizures of property and to seizures
of persons, the Fourth Amendment has drawn a firm line at the
entrance to the house. Absent exigent circumstances, that threshold
may not reasonably be crossed without a warrant. III Without contending that United States v. Watson, 423 U. S. 411 ,
decided the question presented by these appeals, New York argues
that the reasons that support the Watson holding require a
similar result here. In Watson, the Court relied on (a)
the well settled common law rule that. a warrantless arrest in a
public place is valid if the arresting officer had probable cause
to believe the suspect is a felon; [ Footnote 30 ] (b) the clear consensus among the States
adhering to that well settled common law rule; [ Footnote 31 ] and (c) the expression of the
judgment of Congress that such an arrest is "reasonable." [ Footnote 32 ] We consider Page 445 U. S. 591 each of these reasons as it applies to a warrantless entry into
a home for the purpose of making a routine felony arrest. A An examination of the common law understanding of an officer's
authority to arrest sheds light on the obviously relevant, if not
entirely dispositive, [ Footnote
33 ] consideration of what the Framers of the Amendment might
have thought to be reasonable. Initially, it should be noted that
the common law rules of arrest developed in legal contexts that
substantially differ from the cases now before us. In these cases,
which involve application of the exclusionary rule, the issue is
whether certain Page 445 U. S. 592 evidence is admissible at trial. [ Footnote 34 ] See Weeks v. United States, 232 U. S. 383 . At
common law, the question whether an arrest was authorized typically
arose.in civil damages actions for trespass or false arrest, in
which a constable's authority to make the arrest was a defense. See, e.g., Leach v. Money, 19 How. St. Tr. 1001, 97
Eng.Rep. 1075 (K.B. 1765). Additionally, if an officer was killed
while attempting to effect an arrest, the question whether the
person resisting the arrest was guilty of murder or manslaughter
turned on whether the officer was acting within the bounds of his
authority. See M. Foster, Crown Law 308, 312 (1762). See also West v. Cabell, 153 U. S. 78 , 153 U. S.
85 .

															A study of the common law on the question whether a constable
had the authority to make warrantless arrests in the home on mere
suspicion of a felony -- as distinguished from an officer's right
to arrest for a crime committed in his presence -- reveals a
surprising lack of judicial decisions and a deep divergence among
scholars.

															The most cited evidence of the common law rule consists of an
equivocal dictum in a case actually involving the sheriff's
authority to enter a home to effect service of civil process. In Semayne's Case, 5 Co.Rep. 91a, 91b, 77 Eng.Rep. 194,
195-196 (K.B. 1603), the Court stated:

															"In all cases when the King is party, the Sheriff (if the doors
be not open) may break the party's house, either to arrest him, or
to do other execution of the K.'s process, if otherwise he cannot
enter. But before he breaks it, he ought to signify the cause of
his coming, and to make request to open doors; and that appears
well by the stat. of Westm. 1. c. 17 (which is but an affirmance of
the common law) as hereafter appears, for the law without a default
in the owner abhors the destruction Page 445 U. S. 593 or breaking of any house (which is for the habitation and safety
of man) by which great damage and inconvenience might ensue to the
party, when no default is in him; for perhaps he did not know of
the process, of which, if he had notice, it is to be presumed that
he would obey it, and that appears by the book in 18 E. 2. Execut.
252, where it is said that the K.'s officer who comes to do
execution, &c. may open the doors which are shut, and break
them, if he cannot have the keys; which proves, that he ought first
to demand them, 7 E. 3. 16."

															(Footnotes omitted.) This passage has been read by some as
describing an entry without a warrant. The context strongly
implies, however, that the court was describing the extent of
authority in executing the King's writ. This reading is confirmed
by the phrase "either to arrest him, or to do other execution of
the K.'s process" and by the further point that notice was
necessary because the owner may "not know of the process." In any
event, the passage surely cannot be said unambiguously to endorse
warrantless entries.

															The common law commentators disagreed sharply on the subject.
[ Footnote 35 ] Three distinct
views were expressed. Lord Coke, Page 445 U. S. 594 widely recognized by the American colonists "as the greatest
authority of his time on the laws of England," [ Footnote 36 ] clearly viewed a warrantless
entry for the purpose of arrest to be illegal. [ Footnote 37 ] Page 445 U. S. 595 Burn, Foster, and Hawkins agreed, [ Footnote 38 ] as did East and Russell, though the latter
two qualified their opinions by stating that, if an entry to arrest
was made without a warrant, the officer was perhaps immune from
liability for the trespass if the suspect was actually guilty.
[ Footnote 39 ] Blackstone,
Chitty, and Stephen took the opposite view, that entry to arrest
without a warrant was legal, [ Footnote 40 ] though Stephen relied on Blackstone, who,
along with Chitty, in turn relied exclusively on Hale. But Hale's
view was not quite so unequivocally expressed. [ Footnote 41 ] Page 445 U. S. 596 Further, Hale appears to rely solely on a statement in an early
Yearbook, quoted in Burdett v. Abbot, 14 East 1, 155, 104
Eng.Rep. 501, 560 (K.B. 1811): [ Footnote 42 ]

															"that for felony, or suspicion of felony, a man may break open
the house to take the felon; for it is for the commonweal to take
them."

															Considering the diversity of views just describe, however, it is
clear that the statement was never deemed authoritative. Indeed, in Burdett, the statement was described as an "extrajudicial
opinion." Ibid. [ Footnote 43 ]

															It is obvious that the common law rule on warrantless home
arrests was not as clear as the rule on arrests in public places.
Indeed, particularly considering the prominence of Lord Coke, the
weight of authority as it appeared to the Framers was to the effect
that a warrant was required, or, at the minimum, that there were
substantial risks in proceeding without one. The common law sources
display a sensitivity to privacy interests that could not have been
lost on the Framers. The zealous and frequent repetition of the
adage that a "man's house is his castle," made it abundantly clear
that both in England [ Footnote
44 ] Page 445 U. S. 597 and in the colonies "the freedom of one's house" was one of the
most vital elements of English liberty. [ Footnote 45 ]

															Thus, our study of the relevant common law does not provide the
same guidance that was present in Watson. Whereas Page 445 U. S. 598 the rule concerning the validity of an arrest in a public place
was supported by cases directly in point and by the unanimous views
of the commentators, we have found no direct authority supporting
forcible entries into a home to make a routine arrest, and the
weight of the scholarly opinion is somewhat to the contrary.
Indeed, the absence of any 17th- or 18th-century English cases
directly in point, together with the unequivocal endorsement of the
tenet that "a man's house is his castle," strongly suggests that
the prevailing practice was not to make such arrests except in hot
pursuit or when authorized by a warrant. Cf. Agnello v. United
States, 269 U. S. 20 , 269 U. S. 33 . In
all events, the issue is not one that can be said to have been
definitively settled by the common law at the time the Fourth
Amendment was adopted. B A majority of the States that have taken a position on the
question permit warrantless entry into the home to arrest even in
the absence of exigent circumstances. At this time, 24 States
permit such warrantless entries; [ Footnote 46 ] 15 States clearly Page 445 U. S. 599 prohibit them, though 3 States do so on federal constitutional
grounds alone; [ Footnote 47 ]
and 11 States have apparently taken no position on the question.
[ Footnote 48 ]

															But these current figures reflect a significant decline during
the last decade in the number of States permitting warrantless
entries for arrest. Recent dicta in this Court raising questions
about the practice, see n 1, supra, and Federal Courts of Appeals'
decisions on point, see n 4, supra, have led state courts to focus on the
issue. Virtually all of the state courts that have had to confront
the constitutional issue directly have held warrantless entries
into the home to arrest to be invalid in the absence of exigent
circumstances. See nn. 2 3 supra. Three state courts have relied on Fourth Amendment Page 445 U. S. 600 grounds alone, while seven have squarely placed their decisions
on both federal and state constitutional grounds. [ Footnote 49 ] A number of other state
courts, though not having had to confront the issue directly, have
recognized the serious nature of the constitutional question.
[ Footnote 50 ] Apparently,
only the Supreme Court of Florida and the New York Court of Appeals
in this case have expressly upheld warrantless entries to arrest in
the face of a constitutional challenge. [ Footnote 51 ]

															A longstanding, widespread practice is not immune from
constitutional scrutiny. But neither is it to be lightly brushed
aside. This is particularly so when the constitutional standard is
as amorphous as the word "reasonable," and when custom and
contemporary norms necessarily play such a large role in the
constitutional analysis. In this case, although the weight of state
law authority is clear, there is by no means the kind of virtual
unanimity on this question that was present in United States v.
Watson with regard to warrantless arrests in public places. See 423 U.S. at 423 U. S.
422 -423. Only 24 of the 50 States currently sanction
warrantless entries into the home to arrest, see nn. 46-48 supra, and
there is an obvious declining trend. Further, the strength of the
trend is greater than the numbers alone indicate. Seven state
courts have recently held that warrantless home arrests violate
their respective State Constitutions. See n 3, supra. That is significant
because, by invoking a state constitutional provision, a state
court immunizes its decision from review by this Court. [ Footnote 52 ] This heightened degree
of immutability underscores the depth of the principle underlying
the result. Page 445 U. S. 601 C No congressional determination that warrantless entries into the
home are "reasonable" has been called to our attention. None of the
federal statutes cited in the Watson opinion reflects any
such legislative judgment. [ Footnote 53 ] Thus, that support for the Watson holding finds no counterpart in this case.

															MR. JUSTICE POWELL,, concurring in United States v. Watson,
supra at 423 U. S. 429 ,
stated:

															"But logic sometimes must defer to history and experience. The
Court's opinion emphasizes the historical sanction accorded
warrantless felony arrests [in public places]."

															In this case, however, neither history nor this Nation's
experience requires us to disregard the overriding respect for the
sanctity of the home that has been embedded in our traditions since
the origins of the Republic. [ Footnote 54 ] Page 445 U. S. 602 IV The parties have argued at some length about the practical
consequences of a warrant requirement as a precondition to a felony
arrest in the home. [ Footnote
55 ] In the absence of any evidence that effective law
enforcement has suffered in those States that already have such a
requirement, see nn. 3 47 supra, we are
inclined to view such arguments with skepticism. More
fundamentally, however, such arguments of policy must give way to a
constitutional command that we consider to be unequivocal.

															Finally, we note the State's suggestion that only a search
warrant based on probable cause to believe the suspect is at home
at a given time can adequately protect the privacy interests at
stake, and since such a warrant requirement is manifestly
impractical, there need be no warrant of any kind. We find this
ingenious argument unpersuasive. It is true that an arrest warrant
requirement may afford less protection than a search warrant
requirement, but it will suffice to interpose the magistrate's
determination of probable cause between the zealous officer and the
citizen. 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 Page 445 U. S. 603 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.

															Because no arrest warrant was obtained in either of these cases,
the judgments must be reversed and the cases remanded to the New
York Court of Appeals for further proceedings not inconsistent with
this opinion. It is so ordered. * Together with No. 78-5421, Riddick v. New York, also
on appeal from the same court.

															[ Footnote 1 ] See also United States v. Watson, 423 U.S. at 423 U. S. 433 (STEWART, J., concurring); id. at 423 U. S.
432 -433 (POWELL, J., concurring); Gerstein v.
Pugh, 420 U. S. 103 , 420 U. S. 113 ,
n. 13; Coolidge v. New Hampshire, 403 U.
S. 443 , 403 U. S.
474 -481; Jones v. United States, 357 U.
S. 493 , 357 U. S.
499 -500. Cf. United States v. Santana, 427 U. S. 38 .

															[ Footnote 2 ] See State v. Perez, 277 So. 2d 778 (1973), cert. denied, 414 U.S. 1064.

															[ Footnote 3 ] See State v. Cook, 115 Ariz. 188, 564 P.2d 877 (1977) (resting on both state and federal constitutional
provisions); People v. Ramey, 16 Cal. 3d
263 , 545 P.2d 1333 (1976), cert. denied, 429 U.S. 929
(state and federal); People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971) (federal only); State v. Jones, 274 N.W.2d 273 (Iowa 1979) (state and federal); State v. Platten, 225
Kan. 764, 594 P.2d 201 (1979) (state and federal); Commonwealth v. Forde, 367
Mass. 798, 329
N.E.2d 717 (1975) (federal only); State v. Olson, 287
Ore. 157, 598 P.2d
670 (1979) (state and federal); Commonwealth v.
Williams, 483 Pa. 293, 396 A.2d
1177 (1978) (federal only); State v.
McNeal, 251 S.E.2d
484 (W.Va.1978) (state and federal); Laasch v. State, 84 Wis.2d 587, 267 N.W.2d
278 (1978) (state and federal).

															[ Footnote 4 ] Compare United States v. Reed, 572 F.2d 412 (CA2 1978), cert. denied sub nom. Goldsmith v. United States, 439 U.S.
913; United States v. Killebrew, 560 F.2d 729 (CA6 1977); United States v. Shye, 492 F.2d 886 (CA6 1974); United
States v. Houle, 603 F.2d 1297 (CA8 1979); United States
v. Prescott, 581 F.2d 1343 (CA9 1978); Dorman v. United
States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970), with
United States v. Williams, 573 F.2d 348 (CA5 1978); United
States ex rel. Wright v. Woods, 432 F.2d 1143 (CA7 1970), cert. denied, 401 U.S. 966. Three other Circuits have
assumed without deciding that warrantless home arrests are
unconstitutional. United States v. Bradley, 455 F.2d 1181
(CA1 1972); United States v. Davis, 461 F.2d 1026 (CA3
1972); Vance v. North Carolina, 432 F.2d 984 (CA4 1970).
And one Circuit has upheld such an arrest without discussing the
constitutional issue. Michael v. United States, 393 F.2d
22 (CA10 1968).

															[ Footnote 5 ]

															A thorough search of the apartment resulted in the seizure of
additional evidence tending to prove Payton's guilt, but the
prosecutor stipulated that the officers' warrantless search of the
apartment was illegal and that all the seized evidence except the
shell casing should be suppressed.

															"MR. JACOBS: There's no question that the evidence that was
found in bureau drawers and in the closet was illegally obtained.
I'm perfectly willing to concede that, and I do so in my memorandum
of law. There's no question about that."

															App. 4.

															[ Footnote 6 ]

															"At the time in question, January 15, 1970, the law applicable
to the police conduct related above was governed by the Code of
Criminal Procedure. Section 177 of the Code of Criminal Procedure
as applicable to this case recited:"

															"A peace officer may, without a warrant, arrest a person . . .
3. When a felony has in fact been committed, and he has reasonable
cause for believing the person to be arrested to have committed
it."

															"Section 178 of the Code of Criminal Procedure provided:"

															"To make an arrest, as provided in the last section [177], the
officer may break open an outer or inner door or window of a
building, if, after notice of his office and purpose, he be refused
admittance."

															84 Misc.2d 973, 974-975, 376 N.Y.S.2d 779, 780 (Sup.Ct., Trial
Term, N.Y.County, 1974).

															[ Footnote 7 ]

															"Although Detective Malfer knocked on the defendant's door, it
is not established that at this time he announced that his purpose
was to arrest the defendant. Such a declaration of purpose is
unnecessary when exigent circumstances are present ( People v.
Wojciechowski, 31 A.D.2d 658; People v. McIlwain, 28
A.D.2d 711)."

															" Case law has made exceptions from the statute or common law
rules for exigent circumstances which may allow dispensation with
the notice. . . . It has also been held or suggested that notice is
not required if there is reason to believe that it will allow an
escape or increase unreasonably the physical risk to the police or
to innocent persons."

															"( People v. Floyd, 26 N.Y.2d 558, 562.)"

															"The facts of this matter indicate that a grave offense had been
committed; that the suspect was reasonably believed to be armed and
could be a danger to the community; that a clear showing of
probable cause existed, and that there was strong reason to believe
that the suspect was in the premises being entered and that he
would escape if not swiftly apprehended. From this fact, the court
finds that exigent circumstances existed to justify noncompliance
with section 178. The court holds, therefore, that the entry into
defendant's apartment was valid." Id. at 975, 376 N.Y.S.2d at 780-781.

															[ Footnote 8 ]

															55 App.Div.2d 859 (1976).

															[ Footnote 9 ]

															New York Crim. Proc. Law § 140.15(4) (McKinney 1971) provides,
with respect to arrest without a warrant:

															"In order to effect such an arrest, a police officer may enter
premises in which he reasonably believes such person to be present,
under the same circumstances and in the same manner as would be
authorized, by the provisions of subdivisions four and five of
section 120.80, if he were attempting to make such arrest pursuant
to a warrant of arrest."

															Section 120.80, governing execution of arrest warrants, provides
in relevant part:

															"4. In order to effect the arrest, the police officer may, under
circumstances and in a manner prescribed in this subdivision, enter
any premises in which he reasonably believes the defendant to be
present. Before such entry, he must give, or make reasonable effort
to give, notice of his authority and purpose to an occupant
thereof, unless there is reasonable cause to believe that the
giving of such notice will:"

															"(a) Result in the defendant escaping or attempting to escape;
or"

															"(b) Endanger the life or safety of the officer or another
person; or"

															"(c) Result in the destruction, damaging or secretion of
material evidence."

															"5. If the officer is authorized to enter premises without
giving notice of his authority and purpose, or if after giving such
notice he is not admitted, he may enter such premises, and by a
breaking if necessary."

															[ Footnote 10 ]

															App. 63-66.

															[ Footnote 11 ]

															56 App.Div.2d 937, 392 N.Y.S.2d 848 (1977). One justice
dissented on the ground that the officers' failure to announce
their authority and purpose before entering the house made the
arrest illegal as a matter of state law.

															[ Footnote 12 ]

															45 N.Y.2d at 309-310, 380 N.E.2d at 228.

															[ Footnote 13 ]

															The majority continued:

															"In the case of the search, unless appropriately limited by the
terms of a warrant, the incursion on the householder's domain
normally will be both more extensive and more intensive and the
resulting invasion of his privacy of greater magnitude than what
might be expected to occur on an entry made for the purpose of
effecting his arrest. A search, by its nature, contemplates a
possibly thorough rummaging through possessions, with concurrent
upheaval of the owner's chosen or random placement of goods and
articles and disclosure to the searchers of a myriad of personal
items and details which he would expect to be free from scrutiny by
uninvited eyes. The householder, by the entry and search of his
residence, is stripped bare, in greater or lesser degree, of the
privacy which normally surrounds him in his daily living, and, if
he should be absent, to an extent of which he will be unaware."

															"Entry for the purpose of arrest may be expected to be quite
different. While the taking into custody of the person of the
householder is unquestionably of grave import, there is no
accompanying prying into the area of expected privacy attending his
possessions and affairs. That personal seizure alone does not
require a warrant was established by United States v.
Watson ( 423 U.S.
411 , supra ), which upheld a warrantless arrest made in
a public place. In view of the minimal intrusion on the elements of
privacy of the home which results from entry on the premises for
making an arrest (as compared with the gross intrusion which
attends the arrest itself), we perceive no sufficient reason for
distinguishing between an arrest in a public place and an arrest in
a residence. To the extent that an arrest will always be
distasteful or offensive, there is little reason to assume that
arrest within the home is any more so than arrest in a public
place; on the contrary, it may well be that, because of the added
exposure, the latter may be more objectionable."

															"At least as important, and perhaps even more so, in concluding
that entries to make arrests are not 'unreasonable' -- the
substantive test under the constitutional proscriptions -- is the
objective for which they are made, viz., the arrest of one
reasonably believed to have committed a felony, with resultant
protection to the community. The 'reasonableness' of any
governmental intrusion is to be judged from two perspectives --
that of the defendant, considering the degree and scope of the
invasion of his person or property; that of the People, weighing
the objective and imperative of governmental action. The
community's interest in the apprehension of criminal suspects is of
a higher order than is its concern for the recovery of contraband
or evidence; normally the hazards created by the failure to
apprehend far exceed the risks which may follow nonrecovery." Id. at 310-311, 380 N.E.2d at 229.

															[ Footnote 14 ]

															"The apparent historical acceptance in the English common law of
warrantless entries to make felony arrests (2 Hale, Historia
Placitorum Coronae, History of Pleas of Crown [1st Amer ed, 1847],
p. 92; Chitty, Criminal Law [3d Amer, from 2d London, ed, 1836]
22-23), and the existence of statutory authority for such entries
in this State since the enactment of the Code of Criminal Procedure
in 1881 argue against a holding of unconstitutionality and
substantiate the reasonableness of such procedure. . . ."

															"Nor do we ignore the fact that a number of jurisdictions other
than our own have also enacted statutes authorizing warrantless
entries of buildings (without exception for homes) for purposes of
arrest. The American Law Institute's Model Code of Pre-Arraignment
Procedure makes similar provision in section 120.6, with suggested
special restrictions only as to nighttime entries." Id. at 311-312, 380 N.E.2d at 229-230 (footnote
omitted).

															[ Footnote 15 ] Id. at 315, 380 N.E.2d at 232 (Wachtler, J.,
dissenting) .

															[ Footnote 16 ] Id. at 319-320, 380 N.E.2d at 235 (Cooke, J.,
dissenting).

															[ Footnote 17 ]

															"Although the point has not been squarely adjudicated since Coolidge [v. New Hampshire, 403 U. S.
443 ,] ( see United States v. Watson, 423 U. S.
411 , 423 U. S. 418 , n. 6), its
proper resolution, it is submitted, is manifest. At the core of the
Fourth Amendment, whether in the context of a search or an arrest,
is the fundamental concept that any governmental intrusion into an
individual's home or expectation of privacy must be strictly
circumscribed ( see, e.g., Boyd v. United States, 116 U. S.
616 , 116 U. S. 630 ; Camara v.
Municipal Ct., 387 U. S. 523 , 387 U. S.
528 ). To achieve that end, the framers of the amendment
interposed the warrant requirement between the public and the
police, reflecting their conviction that the decision to enter a
dwelling should not rest with the officer in the field, but rather
with a detached and disinterested Magistrate ( McDonald v.
United States, 335 U. S. 451 , 335 U. S.
455 -456; Johnson v. United States, 333 U. S.
10 , 333 U. S. 13 -14). Inasmuch as
the purpose of the Fourth Amendment is to guard against arbitrary
governmental invasions of the home, the necessity of prior judicial
approval should control any contemplated entry, regardless of the
purpose for which that entry is sought. By definition, arrest
entries must be included within the scope of the amendment, for
while such entries are for persons, not things, they are,
nonetheless, violations of privacy, the chief evil that the Fourth
Amendment was designed to deter ( Silverman v. United
States, 365 U. S. 505 , 365 U. S.
511 )." Id. at 320-321, 380 N.E.2d at 235-236 (Cooke, J.,
dissenting).

															[ Footnote 18 ] Id. at 324, 380 N.E.2d at 238 (Cooke, J.,
dissenting).

															[ Footnote 19 ]

															Although it is not clear from the record that appellants raised
this constitutional issue in the trial courts, since the highest
court of the State passed on it, there is no doubt that it is
properly presented for review by this Court. See Raley v.
Ohio, 360 U. S. 423 , 360 U. S.
436 .

															[ Footnote 20 ]

															45 N.Y.2d at 308, 380 N.E.2d at 228. Judge Wachtler in dissent,
however, would have upheld the warrantless entry in Payton's case
on exigency grounds, and therefore agreed with the majority's
refusal to suppress the shell casing. See id. at 315, 380
N.E.2d at 232.

															[ Footnote 21 ]

															"Vivid in the memory of the newly independent Americans were
those general warrants known as writs of assistance under which
officers of the Crown had so bedeviled the colonists. The hated
writs of assistance had given customs officials blanket authority
to search where they pleased for goods imported in violation of
British tax laws. They were denounced by James Otis as"

															"the worst instrument of arbitrary power, the most destructive
of English liberty, and the fundamental principles of law, that
ever was found in an English law book,"

															"because they placed 'the liberty of every man in the hands of
every petty officer.' The historic occasion of that denunciation,
in 1761 at Boston, has been characterized as"

															"perhaps the most prominent event which inaugurated the
resistance of the colonies to the oppressions of the mother
country. 'Then and there,' said John Adams, 'then and there was the
first scene of the first act of opposition to the arbitrary claims
of Great Britain. Then and there the child Independence was
born.'"

															" Boyd v. United States, 116 U. S.
616 , 116 U. S. 625 ." Stanford v. Texas, 379 U. S. 476 , 379 U. S.
481 -482. See also J. Landynski, Search and Seizure and the
Supreme Court 1948 (1966); N. Lasson, The History and Development
of the Fourth Amendment to the United States Constitution 13-78
(1937); T. Taylor, Two Studies in Constitutional Interpretation
19-44 (1969).

															[ Footnote 22 ]

															"'The rights of the people to be secured in their persons, their
houses, their papers, and their other property, from all
unreasonable searches and seizures, shall not be violated by
warrants issued without probable cause, supported by oath or
affirmation, or not particularly describing the places to be
searched, or the persons or things to be seized.' Annals of Cong.,
1st Cong., 1st sess., p. 452."

															Lasson, supra at 100, n. 77.

															[ Footnote 23 ]

															"The general right of security from unreasonable search and
seizure was given a sanction of its own ,and the amendment thus
intentionally given a broader scope. That the prohibition against
'unreasonable searches' was intended, accordingly, to cover
something other than the form of the warrant is a question no
longer left to implication to be derived from the phraseology of
the Amendment."

															Lasson, supra at 103. (Footnote omitted.)

															[ Footnote 24 ]

															As Mr. Justice Jackson so cogently observed in Johnson v.
United States, 333 U. S. 10 , 333 U. S.
13 -14:

															"The point of the Fourth Amendment, which often is not grasped
by zealous officers, is not that it denies law enforcement the
support of the usual inferences which reasonable men draw from
evidence. Its protection consists in requiring that those
inferences be drawn by a neutral and detached magistrate instead of
being judged by the officer engaged in the often competitive
enterprise of ferreting out crime. Any assumption that evidence
sufficient to support a magistrate's disinterested determination to
issue a search warrant will justify the officers in making a search
without a warrant would reduce the Amendment to a nullity and leave
the people's homes secure only in the discretion of police
officers. Crime, even in the privacy of one's own quarters, is, of
course, of grave concern to society, and the law allows such crime
to be reached on proper showing. The right of officers to thrust
themselves into a home is also a grave concern, not only to the
individual but to a society which chooses to dwell in reasonable
security and freedom from surveillance. When the right of privacy
must reasonably yield to the right of search is, as a rule, to be
decided by a judicial officer, not by a policeman or government
enforcement agent."

															(Footnotes omitted.)

															[ Footnote 25 ]

															As the Court stated in Coolidge v. New Hampshire: "Both sides to the controversy appear to recognize a distinction
between searches and seizures that take place on a man's property
-- his home or office -- and those carried out elsewhere. It is
accepted, at least as a matter of principle, that a search or
seizure carried out on a suspect's premises without a warrant is per se unreasonable, unless the police can show that it
falls within one of a carefully defined set of exceptions based on
the presence of 'exigent circumstances.'"

															" * * * *" "It is clear, then, that the notion that the warrantless entry
of a man's house in order to arrest him on probable cause is per se legitimate is in fundamental conflict with the
basic principle of Fourth Amendment law that searches and seizures
inside a man's house without warrant are per se unreasonable in the absence of some one of a number of well defined
'exigent circumstances.'"

															403 U.S. at 403 U. S.
474 -475, 403 U. S.
477 -478.

															Although Mr. Justice Harlan joined this portion of the Court's
opinion, he expressly disclaimed any position on the issue now
before us. Id. at 403 U. S. 492 (concurring opinion).

															[ Footnote 26 ]

															As Mr. Justice Harlan wrote for the Court:

															"It is settled doctrine that probable cause for belief that
certain articles subject to seizure are in a dwelling cannot of
itself justify a search without a warrant. Agnello v. United
States, 269 U. S. 20 , 269 U. S.
33 ; Taylor v. United States, 286 U. S. 1 , 286
U. S. 6 . The decisions of this Court have time and again
underscored the essential purpose of the Fourth Amendment to shield
the citizen from unwarranted intrusions into his privacy. See,
e.g., Johnson v. United States, 333 U. S.
10 , 333 U. S. 14 ; McDonald v.
United States, 335 U. S. 451 , 335 U. S.
455 ; cf. 357 U. S. United States, [ 357 U.S.
480 ]. This purpose is realized by Rule 41 of the Federal Rules
of Criminal Procedure, which implements the Fourth Amendment by
requiring that an impartial magistrate determine from an affidavit
showing probable cause whether information possessed by law
enforcement officers justifies the issuance of a search warrant.
Were federal officers free to search without a warrant merely upon
probable cause to believe that certain articles were within a home,
the provisions of the Fourth Amendment would become empty phrases,
and the protection it affords largely nullified." Jones v. United States, 357 U.S. at 357 U. S.
497 -498 (footnote omitted).

															[ Footnote 27 ] See generally Rotenberg & Tanzer, Searching for the
Person to be Seized, 35 Ohio St.L.J. 56 (1974).

															[ Footnote 28 ] See n 4, supra. [ Footnote 29 ] See, e.g., the facts in Payton's case, n 5, supra. [ Footnote 30 ]

															"The cases construing the Fourth Amendment thus reflect the
ancient common law rule that a peace officer was permitted to
arrest without a warrant for a misdemeanor or felony committed in
his presence as well as for a felony not committed in his presence
if there was reasonable ground for making the arrest. 10 Halsbury's
Laws of England 344-345 (3d ed.1955); 4 W. Blackstone, Commentaries
*292; 1 J. Stephen, A History of the Criminal Law of England 193
(1883); 2 M. Hale, Pleas of the Crown *72-74; Wilgus, Arrests
Without a Warrant, 22 Mich.L.Rev. 541, 547-550, 686-688 (1924); Samuel v. Payne, 1 Doug. 359, 99 Eng.Rep. 230 (K.B. 1780); Beckwith v. Philby, 6 Barn. & Cress. 635, 108 Eng.Rep.
585 (K.B. 1827)."

															423 U.S. at 423 U. S.
418 -419.

															[ Footnote 31 ]

															"The balance struck by the common law in generally authorizing
felony arrests on probable cause, but without a warrant, has
survived substantially intact. It appears in almost all of the
States in the form of express statutory authorization." Id. at 423 U. S.
421 -422.

															[ Footnote 32 ]

															"This is the rule Congress has long directed its principal law
enforcement officers to follow. Congress has plainly decided
against conditioning warrantless arrest power on proof of exigent
circumstances." Id. at 423 U. S. 423 .
The Court added in a footnote:

															"Until 1951, 18 U.S.C. § 3052 conditioned the warrantless arrest
powers of the agents of the Federal Bureau of Investigation on
there being reasonable grounds to believe that the person would
escape before a warrant could be obtained. The Act of Jan. 10,
1951, c. 1221, § 1, 64 Stat. 1239, eliminated this condition." Id. at 423 U. S. 423 ,
n. 13.

															[ Footnote 33 ]

															There are important differences between the common law rules
relating to searches and seizures and those that have evolved
through the process of interpreting the Fourth Amendment in light
of contemporary norms and conditions. For example, whereas the
kinds of property subject to seizure under warrants had been
limited to contraband and the fruits or instrumentalities of crime, see Gouled v. United States, 255 U.
S. 298 , 255 U. S. 309 ,
the category of property that may be seized, consistent with the
Fourth Amendment, has been expanded to include mere evidence. Warden v. Hayden, 387 U. S. 294 .
Also, the prohibitions of the Amendment have been extended to
protect against invasion by electronic eavesdropping of an
individual's privacy in a phone booth not owned by him, Katz v.
United States, 389 U. S. 347 ,
even though the earlier law had focused on the physical invasion of
the individual's person or property interests in the course of a
seizure of tangible objects. See Olmstead v. United
States, 277 U. S. 438 , 277 U. S. 466 .
Thus, this Court has not simply frozen into constitutional law
those law enforcement practices that existed at the time of the
Fourth Amendment's passage.

															[ Footnote 34 ]

															The issue is not whether a defendant must stand trial, because
he must do so even if the arrest is illegal. See United States
v. Crews, ante, at 445 U. S.
474 .

															[ Footnote 35 ]

															Those modern commentators who have carefully studied the early
works agree with that assessment. See ALI, A Model Code of
Pre-Arraignment Procedure 308 (Prop.Off.Draft 1975) (hereinafter
ALI Code); Blakey, The Rule of Announcement and Unlawful Entry: Miller v. United States and Ker v. California, 112 U.Pa.L.Rev. 499, 502 (1964); Comment, Forcible Entry to Effect
a Warrantless Arrest -- The Eroding Protection of the Castle, 82
Dick.L.Rev. 167, 168, n. 5 (1977); Note, The Constitutionality of
Warrantless Home Arrests, 78 Colum.L.Rev. 1550, 1553 (1978) ("the
major common law commentators appear to be equally divided on the
requirement of a warrant for a home arrest") (hereinafter Columbia
Note); Recent Development, Warrantless Arrests by Police Survive a
Constitutional Challenge -- United States v. Watson, 14
Am.Crim.L.Rev.193, 210-211 (1976). Accord, Miller v. United
States, 357 U. S. 301 , 357 U. S.
307 -308; Accarino v. United States, 85
U.S.App.D.C. 394, 402, 179 F.2d 456, 464 (1949).

															[ Footnote 36 ]

															"Foremost among the titles to be found in private libraries of
the time were the works of Coke, the great expounder of Magna
Carta, and similar books on English liberties. The inventory of the
library of Arthur Spicer, who died in Richmond County, Virginia, in
1699, included Coke's Institutes, another work on Magna
Carta, and a 'Table to Cooks Reports.' The library of Colonel
Daniel McCarty, a wealthy planter and member of the Virginia House
of Burgesses who died in Westmoreland County in 1724, included
Coke's Reports, an abridgment of Coke's Reports, Coke on
Littleton, and 'Rights of the Commons of England.' Captain
Charles Colston, who died in Richmond County, Virginia, in 1724,
and Captain Christopher Cocke, who died in Princess Anne County,
Virginia, in 1716, each had copies of Coke's Institutes. That these libraries were typical is suggested by a study of the
contents of approximately one hundred private libraries in colonial
Virginia, which revealed that the most common law title found in
these libraries was Coke's Reports. They were typical of
other colonies, too. Another study, of the inventories of
forty-seven libraries throughout the colonies between 1652 and
1791, found that, of all the books on either law or politics in
these libraries, the most common was Coke's Institutes (found in 27 of the 47 libraries). The second most common title was
a poor second; it was Grotius' War and Peace, found in 16
of the libraries (even Locke's Two Treatises on Government appeared in only 13 of the libraries)."

															"The popularity of Coke in the colonies is of no small
significance. Coke himself had been at the eye of the storm in the
clashes between King and Parliament in the early seventeenth
century which did so much to shape the English Constitution. He
rose to high office at the instance of the Crown -- he was Speaker
of the House of Commons and Attorney General under Queen Elizabeth,
and James I made Coke first his Chief Justice of Common Pleas and
then his Chief Justice of King's Bench. During this time, Coke
gained an unchallenged position as the greatest authority of his
time on the laws of England, frequently burying an opponent with
learned citations from early Year Books. Having been a champion of
the Crown's interests, Coke (in a change of role that recalls the
metamorphosis of Thomas a Becket) became instead the defender of
the common law."

															A. Howard, The Road From Runnymede 118-119 (1968). (Footnotes
omitted.)

															[ Footnote 37 ]

															"[N]either the Constable, nor any other can break open any house
for the apprehension of the party suspected or charged with the
felony. . . ."

															4 E. Coke, Institutes *177. Coke also was of the opinion that
only a King's indictment could justify the breaking of doors to
effect an arrest founded on suspicion, and that not even a warrant
issued by a justice of the peace was sufficient authority. Ibid. He was apparently alone in that view, however.

															[ Footnote 38 ]

															1 R. Burn, The Justice of the Peace and Parish Officer 87 (6th
ed. 1758) ("where one lies under a probable suspicion only, and is
not indicted, it seems the better opinion at this day (Mr. Hawkins
says) that no one can justify the breaking open doors in order to
apprehend him . . ."); M. Foster, Crown Law 321 (1762); 2 W.
Hawkins, Pleas of the Crown 139 (6th ed. 1787):

															"But where one lies under a probable suspicion only, and is not
indicted, it seems the better (d) opinion at this day,
That no one can justify the breaking open doors in order to
apprehend him."

															The contrary opinion of Hale, see n 41, infra, is acknowledged among the
authorities cited in the footnote (d). [ Footnote 39 ]

															1 E. East, Pleas of the Crown 322 (1806) ("[Y]et a bare
suspicion of guilt against the party will not warrant a proceeding
to this extremity [the breaking of doors], unless the officer be
armed with a magistrate's warrant grounded on such suspicion. It
will at least be at the peril of proving that the party so taken on
suspicion was guilty."); 1 W. Russell, A Treatise on Crimes and
Misdemeanors 745 (1819) (similar rule).

															[ Footnote 40 ]

															W. Blackstone, Commentaries *292; 1 J. Chitty, A Practical
Treatise on the Criminal Law 23 (1816); 4 H. Stephen, New
Commentaries on the Laws of England 359 (1845).

															[ Footnote 41 ]

															M. Hale, Pleas of the Crown 583 (1736); 2 id. at 90-95.
At page 92 of the latter volume, Hale writes that, in the case
where the constable suspects a person of a felony,

															"if the supposed offender fly and take house, and the door will
not be opened upon demand of the constable and notification of his
business, the constable may break the door, tho he have no warrant.
13 E. 4. 9. a. "

															Although it would appear that Hale might have meant to limit
warrantless home arrests to cases of hot pursuit, the quoted
passage has not typically been read that way.

															[ Footnote 42 ]

															Apparently, the Yearbook in which the statement appears has
never been fully translated into English.

															[ Footnote 43 ]

															That assessment is consistent with the description by this Court
of the holding of that Yearbook case in Miller v. United
States, 357 U.S. at 357 U. S.
307 :

															"As early as the 13th Yearbook of Edward IV (1461-1483), at
folio 9, there is a recorded holding that it was unlawful for the
sheriff to break the doors of a man's house to arrest him in a
civil suit in debt or trespass, for the arrest was then only for
the private interest of a party."

															[ Footnote 44 ]

															Thus, in Semayne's Case, 5 Co.Rep. 91a, 91b, 77
Eng.Rep. 194, 195 (K.B. 1603), the court stated:

															"That the house of every one is to him as his castle and
fortress, as well for his defence against injury and violence, as
for his repose; and although the life of man is a thing precious
and favoured in law; so that although a man kills another in his
defence, or kills one per infortn', without any intent,
yet it is felony, and in such case he shall forfeit his goods and
chattels, for the great regard which the law has to a man's life;
but if thieves come to a man's house to rob him, or murder, and the
owner of his servants kill any of the thieves in defence of himself
and his house, it is not felony, and he shall lose nothing, and
therewith agree 3 E. 3. Coron. 303, & 305. & 26 Ass. pl.
23. So it is held in 21 H. 7. 39. every one may assemble his
friends and neighbours to defend his house against violence: but he
cannot assemble them to go with him to the market, or elsewhere for
his safeguard against violence: and the reason of all this is,
because domus sua cuique est tutissimum refugium. "

															(Footnotes omitted.)

															In the report of that case, it is noted that, although the
sheriff may break open the door of a barn without warning to effect
service of a writ, a demand and refusal must precede entry into a
dwelling house. Id. at 91b, n.(c), 77 Eng.Rep. at 196, n.
(c):

															"And this privilege is confined to a man's dwelling-house, or
out-house adjoining thereto, for the sheriff on a fieri
facias may break open the door of a barn standing at a
distance from the dwelling-house, without requesting the owner to
open the door, in the same manner as he may enter a close. Penton v. Brown, 2 Keb. 698, S.C. 1 Sid. 186."

															[ Footnote 45 ]

															"Now one of the most essential branches of English liberty is
the freedom of one's house. A man's house is his castle; and while
he is quiet, he is as well guarded as a prince in his castle. This
writ, if it should be declared legal, would totally annihilate this
privilege."

															2 Legal Papers of John Adams 142 (L. Wroth & H. Zobel
eds.1965). We have long recognized the relevance of the common
law's special regard for the home to the development of Fourth
Amendment jurisprudence. See, e.g., Weeks v. United
States, 232 U. S. 383 , 232 U. S.
390 :

															"Judge Cooley, in his Constitutional Limitations, pp. 425, 426,
in treating of this feature of our Constitution, said:"

															"The maxim that 'every man's house is his castle,' is made a
part of our constitutional law in the clauses prohibiting
unreasonable searches and seizures, and has always been looked upon
as of high value to the citizen."

															"'Accordingly,' says Lieber in his work on Civil Liberty and
Self-Government, 62, in speaking of the English law in this
respect,"

															"no man's house can be forcibly opened, or he or his goods be
carried away after it has thus been forced, except in cases of
felony, and then the sheriff must be furnished with a warrant, and
take great care lest he commit a trespass. This principle is
jealously insisted upon."

															Although the quote from Lieber concerning warrantless arrests in
the home is on point for today's cases, it was dictum in Weeks. For that case involved a warrantless arrest in a
public place, and a warrantless search of Week's home in his
absence.

															[ Footnote 46 ]

															Twenty-three States authorize such entries by statute. See Ala.Code § 15-10-4 (1975); Alaska Stat.Ann. §
12.25.100 (1972); Ark.Stat.Ann. § 43-414 (1977); Fla.Stat. § 901.19
(1979); Haw. Rev.Stat. § 803-11 (1977); Idaho Code § 19611 (1979);
Ill.Rev.Stat., ch. 38, § 107-5(d) (1971); La.Code Crim.Proc.Ann.,
Art. 224 (West 1967); Mich.Comp.Laws § 764.21 (1970); Minn.Stat. §
629.34 (1978); Miss.Code Ann. § 993-11 (1973); Mo.Rev.Stat. §
544.200 (1978); Neb.Rev.Stat. § 29-411 (1975); Nev.Rev.Stat. §
171.138 (1977); N.Y.Crim.Proc.Law §§ 140.15(4), 120.80(4),(5)
(McKinney 1971); N.C.Gen.Stat. § 15A-401(e) (1978); N.D.Cent.Code §
29-06-14 (1974); Ohio Rev.Code Ann. § 2935.12 (1975); Okla.Stat.,
Tit. 22, § 197 (1971); S.D. Comp. Laws Ann. § 23A-3-5 (1979);
Tenn.Code Ann. § 4807 (1975); Utah Code Ann. § 77-13-12
(Repl.1978); Wash.Rev.Code § 10.31.040 (1976). One State has
authorized warrantless arrest entries by judicial decision. See
Shanks v. Commonwealth, 463
S.W.2d 312 , 315 (Ky.App. 1971).

															A number of courts in these States, though not directly deciding
the issue, have recognized that the constitutionality of such
entries is open to question. See People v.
Wolgemuth, 69 Ill. 2d
154 , 370 N.E.2d
1067 (1977), cert. denied, 436 U.S. 908; State v.
Ranker, 343 So.
2d 189 (La.1977) (citing both State and Federal Constitutions); State v. Lasley, 306 Minn. 224, 236 N.W.2d
604 (1975), cert. denied, 429 U.S. 1077; State v.
Novak, 428 S.W.2d
585 (Mo.1968); State v. Page, 277 N.W.2d
112 (N.D.1979); State v. Max, 263 N.W.2d
685 (S.D.1978).

															[ Footnote 47 ]

															Four States prohibit warrantless arrests in the home by statute, see Ga.Code §§ 27-205, 27-207 (1978) (also prohibits
warrantless arrests outside the home absent exigency); Ind.Code §§
35-1-19-4, 35-1-19-6 (1976); Mont.Code Ann. § 46-6-401 (1979) (same
as Georgia); S.C.Code § 23-15-60 (1976); 1 by state common law, see United States v. Hall, 468 F.
Supp. 123 , 131, n. 16 (ED Tex.1979); Moore v. State, 149 Tex. Crim. 229, 235-236, 193 S.W.2d 204, 207 (1946); and 10 on
constitutional grounds, see n 3, supra. [ Footnote 48 ]

															Connecticut, Delaware, Maine, Maryland, New Hampshire, New
Jersey, New Mexico, Rhode Island, Vermont, Virginia and Wyoming.
The courts of three of the above-listed States have recognized that
the constitutionality of warrantless home arrest is subject to
question. See State v. Anonymous, 34 Conn.Supp. 531, 375
A.2d 417 (Super.Ct., App.Sess.1977); Nilson v. State, 272
Md. 179, 321 A.2d 301 (1974); Palmigiano v. Mullen, 119
R.I. 363, 377 A.2d
242 (1977).

															[ Footnote 49 ] See cases cited in n 3, supra. [ Footnote 50 ] See cases cited in nn. 46 48 supra. [ Footnote 51 ] See n 2, supra. [ Footnote 52 ] See, e.g., Herb v. Pitcairn, 324 U.
S. 117 , 324 U. S.
125 -126. See generally Brennan, State
Constitutions and the Protection of Individual Rights, 90
Harv.L.Rev. 489 (1977).

															[ Footnote 53 ]

															The statute referred to in n 32, supra, provides:

															"The Director, Associate Director, Assistant to the Director,
Assistant Directors, inspectors, and agents of the Federal Bureau
of Investigation of the Department of Justice may carry firearms,
serve warrants and subpoenas issued under the authority of the
United States and make arrests without warrant for any offense
against the United States committed in their presence, or for any
felony cognizable under the laws of the United States if they have
reasonable rounds to believe that the person to be arrested has
committed or is committing such felony."

															18 U.S.C. § 3052. It says nothing either way about executing
warrantless arrests in the home. See also ALI Code, at
308; Columbia Note 1554-1555, n. 26.

															[ Footnote 54 ]

															There can be no doubt that Pitt's address in the House of
Commons in March, 1763, echoed and re-echoed throughout the
Colonies:

															"'The poorest man may in his cottage bid defiance to all the
forces of the Crown. It may be frail; its roof may shake; the wind
may blow through it; the storm may enter; the rain may enter; but
the King of England cannot enter -- all his force dares not cross
the threshold of the ruined tenement!'" Miller v. United States, 357 U.S. at 357 U. S.
307 .

															[ Footnote 55 ]

															The State of New York argues that the warrant requirement will
pressure police to seek warrants and make arrests too hurriedly,
thus increasing the likelihood of arresting innocent people; that
it will divert scarce resources, thereby interfering with the
police's ability to do thorough investigations; that it will
penalize the police for deliberate planning; and that it will lead
to more injuries. Appellants counter that careful planning is
possible, and that the police need not rush to get a warrant,
because if an exigency arises necessitating immediate arrest in the
course of an orderly investigation, arrest without a warrant is
permissible; that the warrant procedure will decrease the
likelihood that an innocent person will be arrested; that the
inconvenience of obtaining a warrant and the potential for
diversion of resources is exaggerated by the State; and that there
is no basis for the assertion that the time required to obtain a
warrant would create peril.

															MR. JUSTICE BLACKMUN, concurring.

															I joined the Court's opinion in United States v.
Watson, 423 U. S. 411 (1976), upholding, on probable cause, the warrantless arrest in a
public place. I, of course, am still of the view that the decision
in Watson is correct. The Court's balancing of the
competing governmental and individual interests properly occasioned
that result. Where, however, the warrantless arrest is in the
suspect's home, that same balancing requires that, absent exigent
circumstances, the result be the other way. The suspect's interest
in the sanctity of his home then outweighs the governmental
interests.

															I therefore join the Court's opinion, firm in the conviction
that the result in Watson and the result here, although
opposite, are fully justified by history and by the Fourth
Amendment.

															MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE
REHNQUIST join, dissenting.

															The Court today holds that, absent exigent circumstances,
officers may never enter a home during the daytime to arrest for a
dangerous felony unless they have first obtained a warrant. This
hard-and-fast rule, founded on erroneous assumptions concerning the
intrusiveness of home arrest entries, Page 445 U. S. 604 finds little or no support in the common law or in the text and
history of the Fourth Amendment. I respectfully dissent. I As the Court notes, ante at 445 U. S. 591 ,
the common law of searches and seizures, as evolved in England, as
transported to the Colonies, and as developed among the States, is
highly relevant to the present scope of the Fourth Amendment. United States v. Watson, 423 U. S. 411 , 423 U. S.
418 -422 (1976); id. at 423 U. S. 425 , 423 U. S. 429 (POWELL, J., concurring); Gerstein v. Pugh, 420 U.
S. 103 , 420 U. S. 111 , 420 U. S. 114 (1975); Carroll v. United States, 267 U.
S. 132 , 267 U. S.
149 -153 (1925); Bad Elk v. United States, 177 U. S. 529 , 177 U. S.
534 -535 (1900); Boyd v. United States, 116 U. S. 616 , 116 U. S.
622 -630 (1886); Kurtz v. Mott, 115 U.
S. 487 , 115 U. S.
498 -499 (1885). Today's decision virtually ignores these
centuries of common law development, and distorts the historical
meaning of the Fourth Amendment, by proclaiming for the first time
a rigid warrant requirement for all nonexigent home arrest
entries. A As early as the 15th century, the common law had limited the
Crown's power to invade a private dwelling in order to arrest. A
Year Book case of 1455 held that, in civil cases, the sheriff could
not break doors to arrest for debt or trespass, for the arrest was
then only in the private interests of a party. Y. B. 13 Edw. IV,
9a. To the same effect is Semayne's Case, 5 Co.Rep. 91a,
77 Eng.Rep. 194 (K.B. 1603). The holdings of these cases were
condensed in the maxim that "every man's house is his castle." H.
Broom, Legal Maxims *321-329.

															However, this limitation on the Crown's power applied only to
private civil actions. In cases directly involving the Crown, the
rule was that "[t]he king's keys unlock all doors." Wilgus, Arrest
Without a Warrant, 22 Mich.L.Rev. 798, 800 (1924). The Year Book
case cited above stated a different rule for criminal cases: for a
felony, or suspicion of felony, one may break into the dwelling
house to take the felon, for Page 445 U. S. 605 it is for the common weal and to the interest of the King to
take him. Likewise, Serrayne's Case stated in dictum:

															"In all cases when the King is party, the Sheriff (if the doors
be not open) may break the party's house, either to arrest him, or
to do other execution of the K[ing]'s process, if otherwise he
cannot enter."

															5 Co.Rep. at 91b, 77 Eng.Rep. at 195.

															Although these cases established the Crown's power to enter a
dwelling in criminal cases, they did not directly address the
question of whether a constable could break doors to arrest without
authorization by a warrant. At common law, the constable's office
was twofold. As conservator of the peace, he possessed, virtute
officii, a "great original and inherent authority with regard
to arrests," 4 W. Blackstone, Commentaries *292 (hereinafter
Blackstone), and could "without any other warrant but from
[himself] arrest felons, and those that [were] probably suspected
of felonies," 2 M. Hale, Pleas of the Crown 85 (1736) (hereinafter
Hale); see United States v. Watson, supra at 423 U. S.
418 -419. Second, as a subordinate public official, the
constable performed ministerial tasks under the authorization and
direction of superior officers. See 1 R. Burn, The Justice
of the Peace and Parish Officer 295 (6th ed. 1758) (hereinafter
Burn); 2 W. Hawkins, Pleas of the Crown 130-132 (6th ed. 1787)
(hereinafter Hawkins). It was in this capacity that the constable
executed warrants issued by justices of the peace. The warrant
authorized the constable to take actions beyond his inherent
powers. [ Footnote 2/1 ] It also
ensured that he actually carried out his instructions, by giving
him clear notice of his duty, for the breach of which he could be
punished, 4 Blackstone *291; 1 Burn 295; 2 Hale 88, and by
relieving him from civil liability even if probable cause to Page 445 U. S. 606 arrest were lacking, 4 Blackstone *291; 1 Burn 295-296; M.
Dalton, The Country Justice 579 (1727 ed.) (hereinafter Dalton); 2
Hawkins 132-133. For this reason, warrants were sometimes issued
even when the act commanded was within the constable's inherent
authority. Dalton 576.

															As the Court notes, commentators have differed as to the scope
of the constable's inherent authority, when not acting under a
warrant, to break doors in order to arrest. Probably the majority
of commentators would permit arrest entries on probable suspicion
even if the person arrested were not in fact guilty. 4 Blackstone
*292; 1 Burn 87-88; [ Footnote 2/2 ]
1 J. Chitty, Criminal Law 23 (1816) (hereinafter Chitty); Dalton
426; 1 Hale 583; 2 id. at 90-94. These authors, in short,
would have permitted the type of home arrest entries that occurred
in the present cases. The inclusion of Blackstone in this list is
particularly significant in light of his profound impact on the
minds of the colonists at the time of the framing of the
Constitution and the ratification of the Bill of Rights.

															A second school of thought, on which the Court relies, held that
the constable could not break doors on mere "bare suspicion." M.
Foster, Crown Law 321 (1762); 2 Hawkins 139; 1 E. East, Pleas of
the Crown 321-322 (1806); 1 W. Russell, Treatise on Crimes and
Misdemeanors 745 (1819) (hereinafter Russell). Cf. 4 E.
Coke, Institutes *177. Although this doctrine Page 445 U. S. 607 imposed somewhat greater limitations on the constable's inherent
power, it does not support the Court's hard-and-fast rule against
warrantless nonexigent home entries upon probable cause. East and
Russell state explicitly what Foster and Hawkins imply: although
mere "bare suspicion" will not justify breaking doors, the
constable's action would be justifiable if the person arrested were
in fact guilty of a felony. These authorities can be read as
imposing a somewhat more stringent requirement of probable cause
for arrests in the home than for arrests elsewhere. But they would
not bar nonexigent, warrantless home arrests in all circumstances,
as the Court does today. And Coke is flatly contrary to the Court's
rule requiring a warrant, since he believed that even a warrant
would not justify an arrest entry until the suspect had been
indicted.

															Finally, it bears noting that the doctrine against home entries
on bare suspicion developed in a period in which the validity of any arrest on bare suspicion -- even one occurring outside
the home -- was open to question. Not until Lord Mansfield's
decision in Samuel v. Payne, 1 Doug. 359, 99 Eng.Rep. 230
(K.B. 1780), was it definitively established that the constable
could arrest on suspicion even if it turned out that no felony had
been committed. To the extent that the commentators relied on by
the Court reasoned from any general rule against warrantless
arrests based on bare suspicion, the rationale for their position
did not survive Samuel v. Payne. B The history of the Fourth Amendment does not support the rule
announced today. At the time that Amendment was adopted, the
constable possessed broad inherent powers to arrest. The
limitations on those powers derived not from a warrant
"requirement," but from the generally ministerial nature of the
constable's office at common law. Far from restricting the
constable's arrest power, the institution of the Page 445 U. S. 608 warrant was used to expand that authority by giving the
constable delegated powers of a superior officer such as a justice
of the peace. Hence, at the time of the Bill of Rights, the warrant
functioned as a powerful tool of law enforcement, rather than as a
protection for the rights of criminal suspects.

															In fact, it was the abusive use of the warrant power, rather
than any excessive zeal in the discharge of peace officers'
inherent authority, that precipitated the Fourth Amendment. That
Amendment grew out of colonial opposition to the infamous general
warrants known as writs of assistance, which empowered customs
officers to search at will, and to break open receptacles or
packages, wherever they suspected uncustomed goods to be. United States v. Chadwick, 433 U. S.
1 , 433 U. S. 7 -8
(1977); N. Lasson, The History and Development of the Fourth
Amendment to the United States Constitution 51-78 (1937)
(hereinafter Lasson). The writs did not specify where searches
could occur, and they remained effective throughout the sovereign's
lifetime. Id. at 54. In effect, the writs placed complete
discretion in the hands of executing officials. Customs searches of
this type were beyond the inherent power of common law officials,
and were the subject of court suits when performed by colonial
customs agents not acting pursuant to a writ. Id. at
55.

															The common law was the colonists' ally in their struggle against
writs of assistance. Hale and Blackstone had condemned general
warrants, 1 Hale 580; 4 Blackstone *291, and fresh in the
colonists' minds were decisions granting recovery to parties
arrested or searched under general warrants on suspicion of
seditious libel. Entick v. Carrington, 19 How. St. Tr. 1029, 95
Eng.Rep. 807 (K.B. 175); Huckle v. Money, 2 Wils. 205, 95 Eng.Rep.
768 (K.B. 1763); Wilkes v. Wood, 19 How. St. Tr. 1153, 98 Eng.Rep.
489 (K.B. 1763). When James Otis, Jr., delivered his courtroom
oration against writs of assistance in 1761, he looked to the
common law in asserting that the writs, if not construed specially,
were void as a Page 445 U. S. 609 form of general warrant. 2 Legal Papers of John Adams 139-144
(L. Wroth & H. Zobel eds.1965). [ Footnote 2/3 ]

															Given the colonists' high regard for the common law, it is
indeed unlikely that the Framers of the Fourth Amendment intended
to derogate from the constable's inherent common law authority.
Such an argument was rejected in the important early case of Rohan v. Sawin, 59 Mass. 281, 28285 (1851):

															"It has been sometimes contended that an arrest of this
character, without a warrant, was a violation of the great
fundamental principles of our national and state constitutions,
forbidding unreasonable searches and arrests except by warrant
founded upon a complaint made under oath. Those provisions
doubtless had another and different purpose, being in restraint of
general warrants to make searches, and requiring warrants to issue
only upon a complaint made under oath. They do not conflict with
the authority of constables or other peace officers . . . to arrest
without warrant those who have committed felonies. The public
safety, and the due apprehension of criminals, charged with heinous
offences, imperiously require that such arrests should be made
without warrant by officers of the law. [ Footnote 2/4 ] " Page 445 U. S. 610 That the Framers were concerned about warrants, and not about
the constable's inherent power to arrest, is also evident from the
text and legislative history of the Fourth Amendment. That
provision first reaffirms the basic principle of common law,
that

															"[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated. . . ."

															The Amendment does not here purport to limit or restrict the
peace officer's inherent power to arrest or search, but rather
assumes an existing right against actions in excess of that
inherent power and ensures that it remain inviolable. As I have
noted, it was not generally considered "unreasonable" at common law
for officers to break doors in making warrantless felony arrests.
The Amendment's second clause is directed at the actions of
officers taken in their ministerial capacity pursuant to writs of
assistance and other warrants. In contrast to the first Clause, the
second Clause does purport to alter colonial practice:

															"and no Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized."

															That the Fourth Amendment was directed towards safeguarding the
rights at common law, and restricting the warrant practice which
gave officers vast new powers beyond their inherent authority, is
evident from the legislative history of that provision. As
originally drafted by James Madison, it was directed only at warrants; so deeply ingrained was the basic common law premise
that it was not even expressed:

															"The rights of the people to be secured in their persons[,]
their houses, their papers, and their other property, from all
unreasonable searches and seizures, shall not be violated by
warrants issued without probable cause, supported by oath or
affirmation, or not particularly describing the places to be
searched, or the persons or things to be seized."

															1 Annals of Cong. 452 (1789). Page 445 U. S. 611 The Committee of Eleven reported the provision as follows:

															"The right of the people to be secured in their persons, houses,
papers, and effects, shall not be violated by warrants issuing
without probable cause, supported by oath or affirmation, and not
particularly describing the place to be searched, and the persons
or things to be seized." Id. at 783.

															The present language was adopted virtually at the last moment by
the Committee of Three, which had been appointed only to arrange
the Amendments, rather than to make substantive changes in them.
Lasson 101. The Amendment passed the House, but "the House seems
never to have consciously agreed to the Amendment in its present
form." Ibid. In any event, because the sanctity of the
common law protections was assumed from the start, it is evident
that the change made by the Committee of Three was a cautionary
measure without substantive content.

															In sum, the background, text, and legislative history of the
Fourth Amendment demonstrate that the purpose was to restrict the
abuses that had developed with respect to warrants; the Amendment
preserved common law rules of arrest. Because it was not considered
generally unreasonable at common law for officers to break doors to
effect a warrantless felony arrest, I do not believe that the
Fourth Amendment was intended to outlaw the types of police conduct
at issue in the present cases. C Probably because warrantless arrest entries were so firmly
accepted at common law, there is apparently no recorded
constitutional challenge to such entries in the 19th-century cases.
Common law authorities on both sides of the Atlantic, however,
continued to endorse the validity of such arrests. E.g., 1
J. Bishop, Commentaries on the Law of Criminal Procedure §§ 195-199
(2d ed. 1872); 1 Chitty 23; 1 J. Colby, A Practical Treatise upon
the Criminal Law and Practice of the State Page 445 U. S. 612 of New York 73-74 (188); F. Heard, A Practical Treatise on the
Authority and Duties of Trial Justices, District, Police, and
Municipal Courts, in Criminal Cases 135, 148 (1879); 1 Russell 745.
Like their predecessors, these authorities conflicted as to whether
the officer would be liable in damages if it were shown that the
person arrested was not guilty of a felony. But all agreed that
warrantless home entries would be permissible in at least some
circumstances. None endorsed the rule of today's decision that a
warrant is always required, absent exigent circumstances, to effect
a home arrest.

															Apparently the first official pronouncement on the validity of
warrantless home arrests came with the adoption of state codes of
criminal procedure in the latter 19th and early 20th centuries. The
great majority of these codes accepted and endorsed the inherent
authority of peace officers to enter dwellings in order to arrest
felons. By 1931, 24 of 29 state codes authorized such warrantless
arrest entries. [ Footnote 2/5 ] By
1975, 31 of 37 state codes authorized warrantless home felony
arrests. [ Footnote 2/6 ] The
American Law Institute included such authority in its model
legislation in 1931, and again in 1975. [ Footnote 2/7 ]

															The first direct judicial holding on the subject of warrantless
home arrests seems to have been Commonwealth v. Phelps, 209 Mass. 396, 95 N.E. 868 (1911). The holding in this case that
such entries were constitutional became the settled rule in the
States for much of the rest of the century. See Wilgus,
Arrest Without a Warrant, 22 Mich.L.Rev. 798, 803 (1924). Opinions
of this Court also assumed that such arrests were constitutional.
[ Footnote 2/8 ] Page 445 U. S. 613 This Court apparently first questioned the reasonableness of
warrantless nonexigent entries to arrest in Jones v. United
States, 357 U. S. 493 , 357 U. S.
499 -500 (1958), noting in dictum that such entries would
pose a "grave constitutional question" if carried out at night.
[ Footnote 2/9 ] In Coolidge v.
New Hampshire, 403 U. S. 443 , 403 U. S. 480 (1971), the Court stated, again in dictum:

															"[I]f [it] is correct that it has generally been assumed that
the Fourth Amendment is not violated by the warrantless entry of a
man's house for purposes of arrest, it might be wise to reexamine
the assumption. Such a reexamination"

															"would confront us with a grave constitutional question, namely,
whether the forcible nighttime entry into a dwelling to arrest a
person reasonably believed within, upon probable cause that he had
committed a felony, under circumstances where no reason appears why
an arrest warrant could not have been sought, is consistent with
the Fourth Amendment."

															" Jones v. United States, 357 U.S. at 357 U. S.
499 -500."

															Although Coolidge and Jones both referred to
the special problem of warrantless entries during the nighttime,
[ Footnote 2/10 ] it is not
surprising that state and federal courts have tended to read those
dicta as suggesting a broader infirmity applying to daytime entries
also, and that the majority of recent decisions have been against
the constitutionality of all types of warrantless, nonexigent home
arrest entries. As the Court concedes, Page 445 U. S. 614 however, even despite Coolidge and Jones, it
remains the case that

															"[a] majority of the States that have taken a position on the
question permit warrantless entry into the home to arrest even in
the absence of exigent circumstances. At this time, 24 States
permit such warrantless entries; 15 States clearly prohibit them,
though 3 States do so on federal constitutional grounds alone; and
11 States have apparently taken no position on the question." Ante at 445 U. S.
598 -599 (footnotes omitted). This consensus, in the face
of seemingly contrary dicta from this Court, is entitled to more
deference than the Court today provides. Cf. United States v.
Watson, 423 U. S. 411 (1976). D In the present cases, as in Watson, the applicable
federal statutes are relevant to the reasonableness of the type of
arrest in question. Under 18 U.S.C. § 3052, specified federal
agents may

															"make arrests without warrants for any offense against the
United States committed in their presence, or for any felony
cognizable under the laws of the United States, if they have
reasonable grounds to believe that the person to be arrested has
committed or is committing such felony."

															On its face, this provision authorizes federal agents to make
warrantless arrests anywhere, including the home. Particularly in
light of the accepted rule at common law and among the States
permitting warrantless home arrests, the absence of any explicit
exception for the home from § 3052 is persuasive evidence that
Congress intended to authorize warrantless arrests there, as well
as elsewhere.

															Further, Congress has not been unaware of the special problems
involved in police entries into the home. In 18 U.S.C. § 3109, it
provided that

															"[t]he officer may break open any outer or inner door or window
of a house, or any part of a house, or anything Page 445 U. S. 615 therein, to execute a search warrant, if, after notice of his
authority and purpose, he is refused admittance. . . ." See Miller v. United States, 357 U.
S. 301 (1958). In explicitly providing authority to
enter when executing a search warrant, Congress surely did not
intend to derogate from the officers' power to effect an arrest
entry either with or without a warrant. Rather, Congress apparently
assumed that this power was so firmly established either at common
law or by statute that no explicit grant of arrest authority was
required in § 3109. In short, although the Court purports to find
no guidance in the relevant federal statutes, I believe that,
fairly read, they authorize the type of police conduct at issue in
these II A Today's decision rests, in large measure, on the premise that
warrantless arrest entries constitute a particularly severe
invasion of personal privacy. I do not dispute that the home is
generally a very private area, or that the common law displayed a
special "reverence . . . for the individual's right of privacy in
his house." Miller v. United States, supra at 357 U. S. 313 .
However, the Fourth Amendment is concerned with protecting people,
not places, and no talismanic significance is given to the fact
that an arrest occurs in the home, rather than elsewhere. Cf.
Ybarra v. Illinois, 444 U. S. 85 (1979); Katz v. United States, 389 U.
S. 347 , 389 U. S. 351 (1967); Boyd v. United States, 116 U.S. at 116 U. S. 630 .
It is necessary in each case to assess realistically the actual
extent of invasion of constitutionally protected privacy. Further,
as MR. JUSTICE POWELL observed in United States v. Watson,
supra at 423 U. S. 428 (concurring opinion), all arrests involve serious intrusions into
an individual's privacy and dignity. Yet we settled in Watson that the intrusiveness of a public arrest is not
enough to mandate the obtaining of a warrant. The inquiry in the
present case, therefore, is whether the incremental Page 445 U. S. 616 intrusiveness that results from an arrest's being made in the
dwelling is enough to support an inflexible constitutional rule
requiring warrants for such arrests whenever exigent circumstances
are not present.

															Today's decision ignores the carefully crafted restrictions on
the common law power of arrest entry, and thereby overestimates the
dangers inherent in that practice. At common law, absent exigent
circumstances, entries to arrest could be made only for felony.
Even in cases of felony, the officers were required to announce
their presence, demand admission, and be refused entry before they
were entitled to break doors. [ Footnote 2/11 ] Further, it seems generally accepted
that entries could be made only during daylight hours. [ Footnote 2/12 ] And, in my view, the
officer entering to arrest must have reasonable grounds to believe
not only that the arrestee has committed a crime, but also that the
person suspected is present in the house at the time of the entry.
[ Footnote 2/13 ]

															These four restrictions on home arrest -- felony, knock and
announce, daytime, and stringent probable cause -- constitute
powerful and complementary protections for the privacy interests
associated with the home. The felony requirement guards against
abusive or arbitrary enforcement and ensures that invasions of the
home occur only in case of the most Page 445 U. S. 617 serious crimes. The knock-and-announce and daytime requirements
protect individuals against the fear, humiliation, and
embarrassment of being roused from their beds in states of partial
or complete undress. And these requirements allow the arrestee to
surrender at his front door, thereby maintaining his dignity and
preventing the officers from entering other rooms of the dwelling.
The stringent probable cause requirement would help ensure against
the possibility that the police would enter when the suspect was
not home, and, in searching for him, frighten members of the family
or ransack parts of the house, seizing items in plain view. In
short, these requirements, taken together, permit an individual
suspected of a serious crime to surrender at the front door of his
dwelling and thereby avoid most of the humiliation and indignity
that the Court seems to believe necessarily accompany a house
arrest entry. Such a front-door arrest, in my view, is no more
intrusive on personal privacy than the public warrantless arrests
which we found to pass constitutional muster in Watson. [ Footnote 2/14 ]

															All of these limitations on warrantless arrest entries are
satisfied on the facts of the present cases. The arrests here were
for serious felonies -- murder and armed robbery -- and both
occurred during daylight hours. The authorizing statutes required
that the police announce their business and demand entry; neither
Payton nor Riddick makes any contention that these statutory
requirements were not fulfilled. And it is not argued that the
police had no probable cause to believe that both Payton and
Riddick were in their dwellings at the time of the entries. Today's
decision, therefore, sweeps away any possibility that warrantless
home entries might be permitted in some limited situations other
than those in which Page 445 U. S. 618 exigent circumstances are present. The Court substitutes, in one
sweeping decision, a rigid constitutional rule in place of the
common law approach, evolved over hundreds of years, which achieved
a flexible accommodation between the demands of personal privacy
and the legitimate needs of law enforcement.

															A rule permitting warrantless arrest entries would not pose a
danger that officers would use their entry power as a pretext to
justify an otherwise invalid warrantless search. A search pursuant
to a warrantless arrest entry will rarely, if ever, be as complete
as one under authority of a search warrant. If the suspect
surrenders at the door, the officers may not enter other rooms. Of
course, the suspect may flee or hide, or may not be at home, but
the officers cannot anticipate the first two of these
possibilities, and the last is unlikely, given the requirement of
probable cause to believe that the suspect is at home. Even when
officers are justified in searching other rooms, they may seize
only items within the arrestee's possession or immediate control,
or items in plain view discovered during the course of a search
reasonably directed at discovering a hiding suspect. Hence a
warrantless home entry is likely to uncover far less evidence than
a search conducted under authority of a search warrant.
Furthermore, an arrest entry will inevitably tip off the suspects,
and likely result in destruction or removal of evidence not
uncovered during the arrest. I therefore cannot believe that the
police would take the risk of losing valuable evidence through a
pretextual arrest entry, rather than applying to a magistrate for a
search warrant. B While exaggerating the invasion of personal privacy involved in
home arrests, the Court fails to account for the danger that its
rule will "severely hamper effective law enforcement," United
States v. Watson, 423 U.S. at 423 U. S. 431 (POWELL, J., concurring); Gerstein v. Pugh, 420 U.S. at 420 U. S. 113 .
The policeman Page 445 U. S. 619 on his beat must now make subtle discriminations that perplex
even judges in their chambers. As MR. JUSTICE POWELL noted,
concurring in United States v. Watson, supra, police will
sometimes delay making an arrest, even after probable cause is
established, in order to be sure that they have enough evidence to
convict. Then, if they suddenly have to arrest, they run the risk
that the subsequent exigency will not excuse their prior failure to
obtain a warrant. This problem cannot effectively be cured by
obtaining a warrant as soon as probable cause is established,
because of the chance that the warrant will go stale before the
arrest is made.

															Further, police officers will often face the difficult task of
deciding whether the circumstances are sufficiently exigent to
justify their entry to arrest without a warrant. This is a decision
that must be made quickly in the most trying of circumstances. If
the officers mistakenly decide that the circumstances are exigent,
the arrest will be invalid, and any evidence seized incident to the
arrest or in plain view will be excluded at trial. On the other
hand, if the officers mistakenly determine that exigent
circumstances are lacking, they may refrain from making the arrest,
thus creating the possibility that a dangerous criminal will escape
into the community. The police could reduce the likelihood of
escape by staking out all possible exits until the circumstances
become clearly exigent or a warrant is obtained. But the costs of
such a stakeout seem excessive in an era of rising crime and scarce
police resources.

															The uncertainty inherent in the exigent circumstances
determination burdens the judicial system as well. In the case of
searches, exigent circumstances are sufficiently unusual that this
Court has determined that the benefits of a warrant outweigh the
burdens imposed, including the burdens on the judicial system. In
contrast, arrests recurringly involve exigent circumstances, and
this Court has heretofore held that a warrant can be dispensed with
without undue sacrifice in Fourth Amendment values. The situation
should be no different Page 445 U. S. 620 with respect to arrests in the home. Under today's decision,
whenever the police have made a warrantless home arrest, there will
be the possibility of

															"endless litigation with respect to the existence of exigent
circumstances, whether it was practicable to get a warrant, whether
the suspect was about to flee, and the like," United States v. Watson, supra at 423 U. S.
423 -424.

															Our cases establish that the ultimate test under the Fourth
Amendment is one of "reasonableness." Marshall v. Barlow's,
Inc., 436 U. S. 307 , 436 U. S.
315 -316 (1978); Camara v. Municipal Court, 387 U. S. 523 , 387 U. S. 539 (1967). I cannot join the Court in declaring unreasonable a
practice which has been thought entirely reasonable by so many for
so long. It would be far preferable to adopt a clear and simple
rule: after knocking and announcing their presence, police may
enter the home to make a daytime arrest without a warrant when
there is probable cause to believe that the person to be arrested
committed a felony and is present in the house. This rule would
best comport with the common law background, with the traditional
practice in the States, and with the history and policies of the
Fourth Amendment. Accordingly, I respectfully dissent.

															[ Footnote 2/1 ]

															For example, a constable could arrest for breaches of the peace
committed outside his presence only under authority of a warrant. Bad Elk v. United States, 177 U.
S. 529 , 177 U. S.
534 -535 (1900); 1 Burn 294; 2 Hale 90; 2 Hawkins
130.

															[ Footnote 2/2 ]

															The Court cites Burn for the proposition that home arrests on
mere suspicion are invalid. Ante at 445 U. S. 595 ,
n. 38. In fact, Burn appears to be of the opposite view. Burn
contrasts the case of arrests by private citizens, which cannot be
justified unless the person arrested was actually guilty of felony,
with that of arrests by constables:

															"But a constable in such case may justify, and the
reason of the difference is this: because that in the former case
it is but a thing permitted to private persons to arrest for
suspicion, and they are not punishable if they omit it, and
therefore they cannot break open doors; but in case of a constable,
he is punishable if he omit it upon complaint."

															1 Burn 87-88 (emphasis in original). Burn apparently refers to a
constable's duty to act without a warrant on complaint of a
citizen.

															[ Footnote 2/3 ]

															The Court cites Pitt's March, 1763, oration in the House of
Commons as indicating an "overriding respect for the sanctity of
the home." Ante at 445 U. S. 601 ,
and n. 54. But this speech was in opposition to a proposed excise
tax on cider. 15 Parliamentary History of England 1307 (1813).
Nothing in it remotely suggests that Pitt objected to the
constable's traditional power of warrantless entry into dwellings
to arrest for felony.

															[ Footnote 2/4 ] See also North v. People, 139 Ill. 81, 105, 28 N.E.
966, 972 (1891) (Warrant Clause "does not abridge the right to
arrest without warrant, in cases where such arrest could be
lawfully made at common law before the adoption of the present
constitution"); Wakely v. Hart, 6 Binn. 316, 319 (Pa.
1814) (rules permitting arrest without a warrant are "principles of
the common law, essential to the welfare of society, and not
intended to be altered or impaired by the constitution. The whole
section indeed was nothing more than an affirmance of the common
law. . .").

															[ Footnote 2/5 ]

															American Law Institute, Code of Criminal Procedure 254-255 (Off.
Draft 1931) (hereinafter Code).

															[ Footnote 2/6 ]

															American Law Institute, A Model Code of Pre-Arraignment
Procedure App. XI (Prop.Off.Draft 1975) (hereinafter Model
Code).

															[ Footnote 2/7 ]

															Code §§ 21, 28; Model Code § 120.6(1).

															[ Footnote 2/8 ] See Johnson v. United States, 333 U. S.
10 , 333 U. S. 15 (1948) (stating in dictum that officers could have entered hotel
room without a warrant in order to make an arrest "for a crime
committed in the presence of the arresting officer or for a felony
of which he had reasonable cause to believe defendant guilty")
(footnote omitted); Ker v. California, 374 U. S.
23 , 374 U. S. 38 (1963) (plurality opinion); Sabbath v. United States, 391 U. S. 585 , 391 U. S. 588 (1968).

															[ Footnote 2/9 ]

															One Court of Appeals had previously held such entries
unconstitutional. Accarino v. United States, 85
U.S.App.D.C. 394, 179 F.2d 456 (1949)

															[ Footnote 2/10 ]

															As I discuss infra, there may well be greater
constitutional problems with nighttime entries.

															[ Footnote 2/11 ] Miller v. United States, 357 U.
S. 301 , 357 U. S. 308 (1958); Semayne's Case, 5 Co.Rep. 91a, 77 Eng.Rep. 194
(K.B. 1603); Dalton 427; 2 Hale 90; 2 Hawkins 138.

															[ Footnote 2/12 ]

															Model Code § 120.6(3). Cf. Jones v. United States, 357 U. S. 493 , 357 U. S.
499 -500 (1958); Coolidge v. New Hampshire, 403 U. S. 443 , 403 U. S. 480 (1971).

															[ Footnote 2/13 ]

															I do not necessarily disagree with the Court's discussion of the
quantum of probable cause necessary to make a valid home arrest.
The Court indicates that only an arrest warrant, and not a search
warrant, is required. Ante at 445 U. S.
602 -603. To obtain the warrant, therefore, the officers
need only show probable cause that a crime has been committed and
that the suspect committed it. However, under today's decision, the
officers apparently need an extra increment of probable cause when
executing the arrest warrant, namely, grounds to believe that the
suspect is within the dwelling. Ibid. [ Footnote 2/14 ]

															If the suspect flees or hides, of course, the intrusiveness of
the entry will be somewhat greater; but the policeman's hands
should not be tied merely because of the possibility that the
suspect will fail to cooperate with legitimate actions by law
enforcement personnel.

															MR. JUSTICE REHNQUIST, dissenting.

															The Court today refers to both Payton and Riddick as involving "routine felony arrests." I have no
reason to dispute the Court's characterization of these arrests,
but cannot refrain from commenting on the social implications of
the result reached by the Court. Payton was arrested for the murder
of the manager of a gas station; Riddick was arrested for two armed
robberies. If these are indeed "routine felony arrests," which
culminated in convictions after trial upheld by the state courts on
appeal, surely something is amiss in the process of the
administration of criminal justice whereby these convictions are
now set aside by this Court under the exclusionary rule which we
have imposed upon the States under Page 445 U. S. 621 the Fourth and Fourteenth Amendments to the United States
Constitution.

															I fully concur in and join the dissenting opinion of MR. JUSTICE
WHITE. There is significant historical evidence that we have over
the years misread the history of the Fourth Amendment in connection
with searches, elevating the warrant requirement over the necessity
for probable cause in a way which the Framers of that Amendment did
not intend. See T. Taylor, Two Studies in Constitutional
Interpretation 350 (1969). But one may accept all of that as stare decisis and still feel deeply troubled by the
transposition of these same errors into the area of actual arrests
of felons within their houses with respect to whom there is
probable cause to suspect guilt of the offense in question.

Summary: In Payton v. New York, the U.S. Supreme Court held that the Fourth Amendment prohibits police from making a warrantless and nonconsensual entry into a suspect's home to make a routine felony arrest without a warrant and absent exigent circumstances. The Court found that the physical entry of a home is a substantial invasion of privacy and requires a warrant, even when there is probable cause and statutory authority. This decision sets a precedent for the protection of privacy in the home during arrests, requiring an extra increment of probable cause for warrantless entries.