United States v. Santana, 427 U.S. 38 (1976)

Author: Justice Marshall

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United States v. Santana, 427 U.S. 38 (1976)

MR JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, dissenting.

Earlier this Term, I expressed the view that, in the absence of exigent circumstances, the police may not arrest a suspect without a warrant. United States v. Watson, 423 U.S. 411, 433 (1976) (dissenting opinion). For this reason, I cannot join either the opinion of the Court or that of MR. JUSTICE WHITE, each of which disregards whether exigency justified the police decision to approach Santana’s home without a warrant for the purpose of arresting her. Nor can I accept MR. JUSTICE STEVENS approach, for, while acknowledging that some notion of exigency must be asserted to justify the police conduct in this case, MR. JUSTICE STEVENS fails to consider that the exigency present in this case was produced solely by police conduct. I would remand the case to allow the District Court to determine whether that police conduct was justifiable or was solely an attempt to circumvent the warrant requirement.

The Court declines today to settle the oft-reserved question of whether and under what circumstances a police officer may enter the home of a suspect in order to make a warrantless arrest. United States v. Watson, supra at 418 n. 6; Gerstein v. Pugh, 420 U.S. 103, 113 n. 13 (1975); Coolidge v. New Hampshire, 403 U.S. 443, 480-481 (1971); Jones v. United States, 357 U.S. 493, 499-500 (1958). Seizing upon the fortuity that Santana was standing in her doorway when the police approached her home for the purpose of entering and arresting her, the Court ignores MR. JUSTICE WHITE’s repeated advocacy of the common law rule on warrantless entries, ante p. 43; Coolidge v. New Hampshire, supra at 511-512, n. 1 (WHITE, J., concurring and dissenting),{1} and treats this case as a simple application of Watson.

It is somewhat more than that, for the Court takes the opportunity to refine the contours of that decision. Thus, if I correctly read the Court’s citation to the "open fields" doctrine of Hester v. United States, 265 U.S. 57, 59 (1924), the Court holds that the police may enter upon private property to make warrantless arrests of persons who are in plain view and outdoors; and the Court applies that doctrine today to persons who are arguably within their homes but who are "as exposed" to the public as if they were outside. But the Court’s encroachment upon the reserved question is limited. Thus, the Court’s citation of Katz v. United States, 389 U.S. 347, 351 (1967), does not suggest that a plain view of a suspect is alone sufficient to justify warrantless entry and seizure in the home. Indeed, the Court’s rejection of sight alone as a basis for warrantless entry and arrest is made patent, in MR. JUSTICE STEWART’s phrase, by negative implication from the Court’s need to elaborate a hot pursuit justification for the police following Santana into her home. Cf. Coolidge v. New Hampshire, supra at 480-481 . Presumably, if plain view were the touchstone, Santana would have been just as liable to warrantless arrest as she retreated several feet inside her open door as she was when standing in the doorway.

The Court’s doctrine, then, appears sui generis, useful only in arresting persons who are "as exposed to public view, speech, hearing, and touch," ante at 42, as though in the unprotected outdoors. Narrow though it may be, however, the Court’s approach does not depend on whether exigency justifies an arrest on private property, and thus I cannot join it.

MR. JUSTICE STEVENS focuses on what I believe to be the right question in this case -- whether there were exigent circumstances -- and reaches an affirmative answer because he finds a "significant risk that the marked money would no longer be in Santana’s possession if the police waited until a warrant could be obtained." Ante at 44. I agree that there were exigent circumstances in this case. McCafferty was arrested a block and a half down the street from Santana’s home. Although the arresting officers did not see anyone in Santana’s home watching the arrest, App. 16, one officer testified:

We were a block and a half from her home when the arrest was made. I am sure that the word would have been back within a matter of seconds or minutes.

Id. at 51. That is undoubtedly a reasonable conclusion to draw from the facts of the arrest; and the danger that the evidence would be destroyed and the suspects gone before a warrant could be obtained would ordinarily justify the police’s quick return to Santana’s home and the warrantless entry and arrest. If that is the basis of the significant risk to which MR. JUSTICE STEVENS refers, I have no difference with him on that score.{2}

I do not believe, however, that these exigent circumstances automatically validate Santana’s arrest. The exigency that justified the entry and arrest was solely a product of police conduct. Had Officer Gilletti driven McCafferty to a more remote location before arresting her, it appears that no exigency would have been created by the arrest; in such an event, a warrant would have been necessary, in my view, before Santana could have been arrested. United States v. Watson, 423 U.S. at 433 (MARSHALL, J., dissenting). It is not apparent on this record why Officer Gilletti arrested McCafferty so close to Santana’s home when the arresting officers were clearly aware that such a nearby arrest would necessitate the prompt arrest of Santana. App. 51. While a police decision that the time is right to arrest a suspect should properly be given great deference, cf. Hoffa v. United States, 385 U.S. 293, 310 (1966), the power to arrest is an awesome one, and is subject to abuse. An arrest may permit a search of premises incident to the arrest, a search that otherwise could be carried out only upon probable cause and pursuant to a search warrant. Likewise, an arrest in circumstances such as those presented here may create exigency that may justify a search or another arrest: when an arrest is so timed that it is no more than an attempt to circumvent the warrant requirement, I would hold the subsequent arrest or search unlawful. See Coolidge v. New Hampshire, 403 U.S. at 469 471; Vale v. Louisiana, 399 U.S. 30, 35 (1970); Chimel v. California, 395 U.S. 752, 767 (1969); Abel v United States, 362 U.S. 217, 226 and 230 (1960); United States v. Rabinowitz, 339 U.S. 56, 82 (1950) (Frankfurter, J., dissenting); United States v. Lefkowitz, 285 U.S. 452, 467 (1932). Accordingly, I would remand this case for consideration of whether the police decision to arrest McCafferty a block and a half from Santana’s home was for the sole purpose of creating the exigent circumstances that otherwise would justify Santana’s subsequent arrest.{3}


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Chicago: Marshall, "Marshall, J., Dissenting," United States v. Santana, 427 U.S. 38 (1976) in 427 U.S. 38 427 U.S. 46–427 U.S. 49. Original Sources, accessed October 3, 2022, http://www.originalsources.com/Document.aspx?DocID=L9MAATCMIZDDEDY.

MLA: Marshall. "Marshall, J., Dissenting." United States v. Santana, 427 U.S. 38 (1976), in 427 U.S. 38, pp. 427 U.S. 46–427 U.S. 49. Original Sources. 3 Oct. 2022. http://www.originalsources.com/Document.aspx?DocID=L9MAATCMIZDDEDY.

Harvard: Marshall, 'Marshall, J., Dissenting' in United States v. Santana, 427 U.S. 38 (1976). cited in 1976, 427 U.S. 38, pp.427 U.S. 46–427 U.S. 49. Original Sources, retrieved 3 October 2022, from http://www.originalsources.com/Document.aspx?DocID=L9MAATCMIZDDEDY.