The Volokh Conspiracy
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More on Administrative Warrants to Enter Homes: Thoughts on Lucas
A close look at the Eighth Circuit case behind the DHS position.
[UPDATE: I have changed the post below, as it was pointed out to me that the key opinion in Lucas was only a plurality opinion, not a majority opinion. I regret that I had not spotted that earlier. This is a revised post.]
This is a follow-up to my recent post, Can ICE Enter a Home To Make an Arrest With Only an Administrative Warrant?, on the Trump Administration's view that they can use I-205 warrants from the executive branch to enter homes to make immigration arrests. As you'll recall from that post, I was speculating about what the government's theory might be. In the last day, various administration and administration-friendly sources have suggested that they're relying on a 2007 plurality opinion from the en banc Eighth Circuit, United States v. Lucas, 499 F. 3d 769 (8th Cir. 2007), for that view.
I thought I would take a look at Lucas and see if it provides the support the Administration claims.
My overall take: The administration has an argument, although I don't think it's a good one. Put another way, they have a plausible argument by analogy to the plurality opinion of some judges in Lucas, but it has problems. What to make of that depends on the question you're asking. If the issue is whether the Administration has a non-frivolous argument, I think they do. If the issue is whether the Administration has an argument that should win, I don't think they do.
Lucas involved an escapee from prison, one Tylan Lucas. Under state law, the prison system director could issue an executive-branch executive warrant to arrest Lucas—what state law called a "Warrant of Arrest (for Escaped Prisoner)"—and he did. The police then received a tip that Lucas was present at a particular apartment in Omaha. Police went to the apartment, and the resident, Theresa Scaife, was there and answered the door. The police ultimately entered and also found Lucas, together with Lucas's drugs. Lucas was charged with drug crimes, and he moved to suppress the drugs found in the apartment. Lucas argued that entering the apartment without a valid judicial warrant violated his Fourth Amendment rights.
Of the thirteen judges on the Eighth Circuit, ten took a position on the use of administrative warrants. They split five to five. Five judges joined a plurality opinion saying that the Fourth Amendment was not violated in part because of the administrative warrant:
Because Lucas's reasonable expectation of privacy was limited by his status as an escapee and the officers possessed both a valid administrative warrant and reasonable cause to believe Lucas was in Scaife's apartment, we conclude that his Fourth Amendment rights were not violated by the entry of the officers into the apartment and his subsequent arrest.
Three more judges agreed that there was no violation, but they did not reach the issue of whether the administrative warrant was valid.
Five judges said that the use of the administrative warrant was invalid.
I take it the administration is relying on the five-judge plurality opinion in Lucas, so let's take a look at that. It is tricky to decipher because the court seems to be relying on three different lines of cases, all of which factor into the overall reasonableness of the entry under a totality of the circumstances balancing of interests.
First, relying on Abel v. United States—the 1960 case I wrote about in my earlier post—Lucas argues that administrative warrants are generally valid to make arrests and in some cases even to enter homes:
The fact that Clarke was not a neutral judicial officer does not end the Fourth Amendment inquiry, however. This case is quite different from the cases on which Lucas relies in which a neutral magistrate was needed to determine probable cause. Here the administrative official responsible for the custody of prisoners issued a warrant to retake an inmate who had already been convicted of a crime beyond a reasonable doubt and had fled from his lawful custody. The standard for issuance of a valid administrative warrant under the Fourth Amendment is different from the probable cause showing necessary for a warrant to arrest someone suspected of a crime.
The Supreme Court has upheld administrative warrants and has never held that administrative warrants must be issued by a neutral and detached magistrate in the sense of Shadwick or Coolidge. An administrative arrest warrant issued by a district director of the Immigration and Naturalization Service pursuant to a deportation statute led to a valid arrest in Abel v. United States, 362 U.S. 217, 234, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). There, the Court recognized the "long-sanctioned practice" and "overwhelming … legislative recognition" favoring "the propriety of administrative arrest" in such circumstances. Id. at 230, 233, 80 S.Ct. 683. The Court has required that administrative warrants be obtained before inspectors enforcing housing code compliance may lawfully enter and inspect residential units. See Camara v. Mun. Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). And in the course of striking down a federal statute as unconstitutional under the Fourth Amendment for authorizing Occupational Health and Safety Administration agents to make warrantless safety inspections, the Court indicated that the requirements for issuance of an administrative warrant are not identical to those for judicial warrants. Marshall v. Barlow's, Inc., 436 U.S. 307, 320, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978).
That's the part of Lucas that the Administration is focused on.
Second, the Lucas plurality reasoned that Lucas's status as a prison escapee made the entry reasonable because Lucas had no right to be in Scaife's apartment anyway:
The reasonableness of the officers' entry into Scaife's apartment must be judged by balancing the government's "need to [arrest Lucas] against the invasion which the [arrest] entails." Camara, 387 U.S. at 537, 87 S.Ct. 1727. Whatever expectation of privacy an escaped convict might have must be weighed against the strong interest the government has in bringing him back into custody.
Like the prison escapee in United States v. Roy, 734 F.2d 108, 112 n. 5 (2d Cir. 1984), Lucas "lost his presumption of innocence when he was convicted and incarcerated," and his escape could not expand the very restricted expectation of privacy he had while in the custody of prison officials. Id. at 111-12. Since Roy's presence outside of custody was wrongful, id. at 111, the Second Circuit found he lacked "a legitimate expectation of privacy against the government's intrusion." Id. at 110. Evidence seized without a warrant from his locked trunk was therefore admissible. Id. at 112. Lucas similarly had no right to be in Scaife's apartment, and Nebraska's interest in the present case was even stronger than the state's in Roy because the officers here were acting pursuant to a valid administrative warrant.
As an escapee Lucas had only a minimal expectation of privacy in Scaife's apartment. See Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Prisoners like Lucas who are on work release are subject to special restrictions just like probationers. Their liberty is legitimately constrained because "[p]robation, like incarceration, is a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty." Griffin, 483 U.S. at 874, 107 S.Ct. 3164 (internal quotation marks and citation omitted). The state has a duty to protect the community from harm when a probationer or escaped prisoner is "at large." Id. at 875, 107 S.Ct. 3164. For these reasons a warrantless search of a probationer's home without probable cause is permissible if it is based on the reasonable suspicion of the probation officer. United States v. Knights, 534 U.S. 112, 121-22, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). The officers' entry into Scaife's apartment did not violate the Fourth Amendment since Lucas was a convicted escapee whom they were seeking under the authority of a valid administrative warrant issued by the responsible state official who had reasonable cause to believe that Lucas had escaped.
Lucas as an escapee from lawful custody had an even more circumscribed expectation of privacy than the probationer in Knights or the parolee in Samson v. California, ___ U.S.___, 126 S.Ct. 2193, 2200, 165 L.Ed.2d 250 (2006) (state's "overwhelming interest in supervising parolees" justified a warrantless search). Lucas had to sign a personalized plan agreeing to the terms of his work release program before he could participate in it, and these terms required him to return to the community corrections center after work. See Neb. Dep't of Correctional Servs. Reg. 201.06 & app., available at http://www.corrections.state.ne.us/policies/files/201.06.pdf; see also Trial Tr. at 259 (stipulation that Lucas was obligated to return to Omaha Community Corrections Center after work). That Lucas expected to be recaptured wherever discovered is evidenced by his comment to the arresting officers, "Damn, I knew I was going to get caught eventually."
Third, the Lucas plurality emphasized the limits of the exclusionary rule. Because the apartment was Scaife's, not Lucas's, Lucas's rights weren't implicated by an entry into Scaife's apartment and Lucas didn't have standing to challenge the entry:
Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), is also instructive. In that case the police entered Steagald's home with an arrest warrant for Ricky Lyons, a fugitive who was not present, but the officers discovered evidence incriminating Steagald. The Supreme Court concluded that the search violated Steagald's personal Fourth Amendment rights but that those of Lyons were not affected. Id. at 216, 101 S.Ct. 1642. The Supreme Court distinguished the rights of Steagald from those of Lyons, just as we must analyze the respective rights in this case. The Court pointed out that "two distinct interests were implicated by the search at issue here — Ricky Lyons' interest in being free from an unreasonable seizure and petitioner's interest in being free from an unreasonable search of his home." Id. While the arrest warrant would have supported the search for and the seizure of Lyons if he had been there, it did not justify the search that turned up evidence against Steagald. In our case it is Scaife rather than Lucas who was in a position like Steagald's. Clarke's arrest warrant authorized entry into Scaife's home for the purpose of arresting Lucas.
There are a lot of opinions in Lucas, and one was a dissent filed by Judge Beam joined in whole or in part by four other judges. It begins:
This is a garden variety separation of constitutional powers case gone awry. A majority of the judges in regular active service in this circuit employed late blooming, previously unannounced legal concepts, advanced by the government for the first time in its petition for rehearing en banc to vacate the unanimous opinion of the three-judge panel and to create an en banc court. The en banc panel, contrary to existing Supreme Court and circuit precedent, now accepts these new government theories to administer to Tylan Lucas what the court apparently believes are his just desserts for being a bad person and an escaped felon. To reach this result, the court performs a Texas "Sidestep" around clearly established and plainly articulated Fourth Amendment jurisprudence as established in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) and Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972). From this unjust result, I respectfully dissent.
The dissent goes on to say that the use of administrative warrants was invalid:
It is more than obvious that the Fourth Amendment prohibited police entry into Lucas's home if he was not suspected of a crime. It is equally obvious that breaching the privacy of his home to arrest him for a suspected felony required compliance with Payton and Shadwick. However, adherence to these cases did not occur.
. . . . The government and the court do not tightly reason the details of their position. Presumably the contention relies upon a diminished or nonexistent expectation of privacy approach which in some way relates to Lucas's year 2000 convictions and sentences. In other words, they seem to say that a mantle of criminality carrying with it the evaporation of constitutional protections hovered over Lucas, even in his work-release assignment, until his year 2000 sentences had expired. Accordingly, then, they say, it was this continuing vestment of illegality, not his more recent escape felony, that permitted Lucas's in-home arrest. Of course, neither fact nor precedent support this theory. Indeed, case-based reasoning counsels to the contrary. See Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) ("A probationer's home, like anyone else's, is protected by the Fourth Amendment's requirement that searches be `reasonable.'"); Hudson v. Palmer, 468 U.S. 517, 524, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (noting that while imprisonment carries with it the circumscription of some rights "persons imprisoned for crime enjoy many protections of the Constitution").
What do we make of Lucas? First, the fact that the en banc court split 5 to 5 on the question does not exactly provide support for the government's position. The opinion the government wants to rely on, the side of the five that relied on administrative warrants, is not precedential. So at the outset, the plurality opinion has at best only limited legal significance.
With that said, the first part of the plurality opinion, on administrative warrants, does provide at least a little bit of support for the Administration's position. It's more or less the support from Abel that I flagged last time. So the Administration can legitimately say that they have something to argue, I think. As I said in my first post, this is not a frivolous position.
With that said, there are problems, and those problems lead me to think that the plurality opinion in Lucas doesn't help the Administration as much as it would like.
First, on the substance, it's worth flagging that the administrative warrant part of the Lucas plurality seems odd. The court seems to be saying that the entry was allowed because the Supreme Court has already blessed the use of executive warrants to break into people's homes to make community health and safety inspections—citing Camara v. Municipal Court and Marshall v. Barlow's for that view. That would be a surprise to me. My understanding has been that Camara and Marshall required judicial warrants, not executive branch administrative warrants.
That was the whole point of Camara and Marshall, it seems to me. Camara overturned a ruling allowing safety inspections without a warrant, requiring a neutral magistrate to evaluate if the executive could enter. The standard to be applied was different from that of the usual criminal warrant, but I have understood that the entity issuing the warrant has to be a neutral judge, not an executive officer. Similarly, in Marshall v. Barlow's, the Court said it was insufficient that the Secretary of Labor had authorized the inspection, as a neutral judge needed to do it: "A warrant, by contrast, would provide assurances from a neutral officer that the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing specific neutral criteria." I don't see how an executive branch order can count. As the Supreme Court put it in United States v. United States Dist. Ct., 407 U.S. 297, 317 (1972), "the Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates."
Beyond that, the second and third parts of the overall balance of reasonableness in Lucas don't seem to help the administration here. On the second line of thinking, it's true that people outside the United States who have no voluntary contacts with the United States have no Fourth Amendment rights under United States v. Verdugo-Urquidez. But I am not aware of any cases construing Verdugo-Urquidez to say that a person inside the United States with an executive branch order of removal has diminished or zero Fourth Amendment rights.
The Administration may want to press that view—it wouldn't surprise me if the Administration does. But when I last read the lower court cases on Verdugo-Urquidez (for this article), they were a lot more limited than that. So I don't think that's where the law is these days. It makes the analogy the Administration seems to be making—that people with an executive order of removal have reduced or no Fourth Amendment rights just like the prison escapee in Lucas—an uphill climb, at least if the current caselaw is the guide.
As to the third line of thinking, the DHS position seems to be expressly about breaking in and arresting people in their own homes, not while they are in someone else's home. In Fourth Amendment terms, this is about Payton, not Steagald. I agree, as in Lucas, that the exclusionary rule is really limited in this setting. Even putting aside the limit in deportation proceedings to egregious violations of the Fourth Amendment, there's the broader issue of what is suppressed even if this were a traditional criminal case. Here's what the Supreme Court had to say about this in New York v. Harris, 495 U.S. 14 (1990), which considered the scope of the exclusionary rule specifically for Payton violations followed by an interrogation outside the home:
Payton itself emphasized that our holding in that case stemmed from the "overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic." 445 U. S., at 601. Although it had long been settled that a warrantless arrest in a public place was permissible as long as the arresting officer had probable cause, see United States v. Watson, 423 U. S. 411 (1976), Payton nevertheless drew a line at the entrance to the home. This special solicitude was necessary because " `physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.' " 445 U. S., at 585 (citation omitted). The arrest warrant was required to "interpose the magistrate's determination of probable cause" to arrest before the officers could enter a house to effect an arrest. Id., at 602-603.
Nothing in the reasoning of that case suggests that an arrest in a home without a warrant but with probable cause somehow renders unlawful continued custody of the suspect once he is removed from the house. There could be no valid claim here that Harris was immune from prosecution because his person was the fruit of an illegal arrest. United States v. Crews, 445 U. S. 463, 474 (1980). Nor is there any claim that the warrantless arrest required the police to release Harris or that Harris could not be immediately rearrested if momentarily released. Because the officers had probable cause to arrest Harris for a crime, Harris was not unlawfully in custody when he was removed to the station house, given Miranda warnings, and allowed to talk. For Fourth Amendment purposes, the legal issue is the same as it would be had the police arrested Harris on his doorstep, illegally entered his home to search for evidence, and later interrogated Harris at the station house. Similarly, if the police had made a warrantless entry into Harris' home, not found him there, but arrested him on the street when he returned, a later statement made by him after proper warnings would no doubt be admissible.
Under that standard, it's not clear that the exclusionary rule is going to do much work here. I take it the point of the entry in these cases is to make the arrest, not to gather evidence. So the evidence gathered is not likely to come up, and the exclusionary rule isn't going to do much if any work. But this comes back to a theme of my prior writing: The scope of the Fourth Amendment right is really different from the scope of the available remedy. It may be that entry violates the person's Fourth Amendment rights, but the courts don't have much in the way of tools to provide remedies.
As always, stay tuned.
