Hastings Law Journal


Edward H. Arens


The Fourth Amendment, as decided by the Supreme Court in Payton v. New York, forbids police from arresting suspects in their homes without a warrant or a compelling excuse. Applying this principle to standoffs between police and suspects who have barricaded themselves inside their homes, however, presents significant interpretive problems. The foremost difficulty is that it is not clear when the Fourth Amendment even applies to police standoffs. Courts disagree on whether police seize barricaded suspects simply by surrounding a house, or whether the suspect remains free until he or she surrenders or is physically subdued. Second, Payton excuses a warrantless arrest when exigent circumstances would have made getting a warrant impractical or dangerous. A barricaded suspect, however, can hold out for days on end. Under such circumstances, at what time does it become untenable for police to not have a warrant? Those courts who have considered this issue have disagreed about whether time alone can terminate an exigency. This Note strives to explore these important questions. It proposes a new Fourth Amendment framework for handling encounters with barricaded suspects, suggesting that a suspect is seized when he is surrounded in his home and no longer free to ignore the police, and that courts should presume a warrant is needed when the police have time to plan for a standoff. In the event that an unanticipated standoff occurs, however, it argues that exigent circumstances should last for so long as the police are too busy to seek a warrant.

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