The information presented in this article is for discussion purposes only. It is not legal advice. You should consult with your department’s legal counsel prior to taking any action.
On September 16, 2015 the U.S. 11th Circuit Court of Appeals decided the case of Moore v. Pederson. The case involves the warrantless entry into a private residence to arrest an offender standing at the front door’s threshold. A person’s home is considered their castle, and to invade that privacy requires the highest levels of legal justification. Usually the only legal method to enter a residence is an arrest or search warrant signed by an independent judge, or when one of the four U.S. Supreme Court recognized exemptions exist:
- Exigent circumstances
- Protective sweep
- Consent
- Plain view contraband.
Making custodial arrests is a fundamental function of law enforcement, but it is also one of the most controversial. The U.S. Constitution’s Bill of Rights expresses the highest opinions on individual freedoms from government intrusion, and a custodial arrest is seen as one of the most intrusive acts on a citizen. As such, an arrest must pass a strict line of legal requirements to uphold the Constitution while ensuring that justice is still served on the offenders.
A Verbal Disturbance Call
During the early morning hours of November 15, 2008, Seminole County Sheriff’s Deputy Kevin Pederson was working road patrol. He responded on a dispatch call to the Colonial Grand apartments on a report of a male and two females outside and yelling at one another. The caller did advise the dispute did “not sound violent.”
Pederson arrived at the apartment complex around 0445 hours. The deputy met the caller and was told a man and two women had been arguing in the parking lot, but one of the women had left the area. The caller claimed verbal disputes involving these people were “an everyday occurrence.” The deputy was led to Moore’s apartment where the male and other female had returned.
Deputy Pederson approached Moore’s residence to further investigate, and heard what he described as an argument, though he could not make out any words. In addition, Pederson stated that he heard music coming from the apartment. Deputy Pederson knocked on Moore’s door.
The Deputy’s First Contact
Moore opened the door, wearing only a towel wrapped around his waist. Deputy Pederson observed two women inside the apartment. One woman was naked and one was clothed. Neither woman asked for assistance or otherwise indicated she was in distress, but Pederson believed one of the women “had a scowl on her face” and “appeared visibly upset, pissed off,”. The deputy could not discern why she was mad. Deputy Pederson thought he may have interrupted a love triangle.
Deputy Pederson asked Moore about his involvement in the parking lot disturbance. He also advised Moore the thought there may be “a domestic violence situation”, based on what he had seen at the door. Moore denied any knowledge of the parking lot disturbance. Deputy Pederson requested Moore to identify himself (a common police procedure), but Moore declined to identify himself on multiple requests.
Moore’s Arrest at the Threshold
After Moore’s multiple refusals to provide identification, Deputy Pederson handcuffed Moore. When the arrest occurred, Moore was standing inside the doorway of his apartment. Deputy Pederson then took Moore (still wearing a towel) to the County jail, and subsequently charged Moore with violating Florida Criminal Statute 843.02: resisting officer – obstructing without violence. However, the charges against Moore were later dropped by the State Attorney (prosecutor).
Moore Sues Deputy Pederson
Moore filed suit alleging Deputy Pederson violated his 4th Amendment rights when he entered his apartment without a warrant to arrest him from the doorway. Moore also filed a State law claim for emotional distress, but that suit was later dismissed due to the fact that Moore did not state facts to support his claim.
The U.S. District Court examined the suit and granted summary judgment for Deputy Pederson on all claims. As such, Moore’s case was dismissed. Moore appealed to the U.S. 11th Circuit Court of Appeals.
Appeal to the 11th Circuit
The 11th Circuit first noted when a government official like Deputy Pederson is entitled to qualified immunity, and therefore summary judgment. The deputy would be able to claim qualified immunity and summary judgment if he was acting in a discretionary capacity, and he either:
- did not violate the constitution, or
- if he did violate the constitution, if the law was not clearly established enough that a reasonable officer would have known his conduct was illegal.
So to defeat the qualified immunity claim, the plaintiff must show:
- that his rights were violated, and
- that the law was clearly established such that a reasonable officer would have known he was violating the right.
A right is clearly established in the 11th Circuit when there is case-law from the Unites States Supreme Court, the 11th Circuit Court of Appeals, or the highest court of the State where the incident occurred that is similar enough to put an official on notice regarding the lawfulness of his or her conduct.
Examining the 4th Amendment
The 11th Circuit first set out to determine if Deputy Pederson violated the 4th Amendment when he grabbed Moore, who was standing inside the doorway to his apartment, and arrested him without a warrant. The 11th Circuit examined their own case-law, and noted:
McClish v. Nugent, 483 F.3d 1231 (11th Cir. 2007) the court held that an officer who, without a warrant, or probable cause along with exigent circumstances or consent, “reached into [a] house, grabbed [the plaintiff], and forcibly pulled him out onto the porch” in order to arrest him, violated the plaintiff’s Fourth Amendment rights.
The 11th Circuit then applied the facts of Moore’s case to the rule from McClish above, and stated that Deputy Pederson did not have warrant, did not have probable cause, and did not have exigent circumstance or consent to enter. Specifically, the court stated:
“Pederson did not have a warrant, and he lacked probable cause, exigent circumstances, and consent. He nonetheless breached Moore’s home’s threshold for the purpose of arresting Moore when he handcuffed Moore, who was standing inside his apartment’s doorway at the time. As a result, Pederson violated Moore’s Fourth Amendment right to be free from unreasonable seizures.”
Deputy Pederson had argued he did have probable cause to arrest Moore for a violation Florida Statute Section 843.02 which makes it illegal to resist an officer without violence. That violation was for refusing to identify himself during the investigation. However, the 11th Circuit noted that this law only applies during a lawful Terry stop, or one where reasonable suspicion of criminal activity is present. The court stated:
“In Terry v.Ohio, the Supreme Court held that an officer does not violate the Fourth Amendment by conducting a “brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot
.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 675 (2000) (citing Terry, 392 U.S. at 30, 88 S. Ct. at 1868). A Terry stop is a type of seizure under the Fourth Amendment because it restrains the freedom of the detainee to walk away or otherwise remove himself from the situation. Terry, 392 U.S. at 16, 88 S. Ct. at 1877. The standard of “reasonable suspicion” that is required to justify a Terry stop is significantly more lenient than that of “probable cause,” which is necessary to support a warrant.Id. at 123, 120 S. Ct. at 675-76.”
In this case, while Deputy Pederson was responding to a call for service, that call involved a verbal argument in a parking lot where one person left in a car and the caller advised that verbal arguments were common among these individuals. The caller even stated that it did not sound violent. Thus, while the deputy had a right to knock and ask questions, he lacked reasonable suspicion that criminal activity was afoot.
EDITOR’S NOTE: Officers must be keenly aware of what they can and cannot do according to the law. The Bill of Rights expressly gives citizens rights from government intrusion. Events that occur inside a person’s home are almost always off-limits to police without a valid search or arrest warrant from a judge. In addition, the Courts are very hesitant to authorize a warrantless entry into a home for a misdemeanor offense, except cases of domestic violence. When in doubt, or when dealing with a misdemeanor offense, officers should obtain a warrant. In this case, a verbal disturbance does not rise to the level of a criminal offense that would justify a Terry Stop, let alone a criminal offense requiring identification.
Reviewing Exigent Circumstances
However, for the sake of argument, the 11th Circuit also examined Pederson’s argument as if the facts of the case did provide reasonable suspicion in order to explore whether that would change the outcome in this case. The Court examined if reasonable suspicion was present, was there exigent circumstance to support entry into the residence, and whether those exigent circumstances, when combined with the lesser standard of proof of “reasonable suspicion” (as opposed to probable cause), would support a non-consensual entry into a residence.
Regarding the presence of exigent circumstances, the court stated:
“But significantly, the circumstances in this case did not satisfy the definition of “exigent circumstances” either before or after Pederson’s interaction with Moore. Before Pederson knocked on Moore’s door, all he knew was that a neighbor had complained of a non-violent argument in the parking lot where one of the participants had left the scene, and Pederson heard what he believed could have been arguing and music coming from inside the apartment. These facts are a far cry from an “emergency situation[] involving endangerment to life” that we have previously described as constituting exigent circumstances.See,e.g.,United States v. Holloway, 290 F.3d 1331, 1337 (11th Cir. 2002).”
After Moore opened the door for Deputy Pederson, nothing that Pederson reported observing established or even suggested that anyone’s life or health was at risk. At worst, Pederson saw a naked man, a naked woman, and a clothed woman with a scowl on her face. No one appeared injured, and Pederson did not report seeing any physical signs of a disturbance or assault. Deputy Pederson also did not identify any behavior or conduct that suggested that any of the occupants of the residence contemplated violence in any way.
While the complainant reported hearing arguments from that apartment on other occasions, which he considered a nuisance, he specifically described the disputes as “verbal” and nonviolent. As a result, Pederson could not have lawfully executed a Terry stop in this case. (In other words, no crime means police can only go so far).
Ruling of the U.S. 11th Circuit
The 11th Circuit then ruled that Deputy Pederson was not conducting a lawful Terry stop when Moore was standing inside his residence, and therefore Moore was free to decide to refuse to answer questions. The court cited the Supreme Court case of Kentucky v. King, which held:
When the police knock on a door . . . [and the] occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time.
Further, the 11th Circuit stated:
We have said that an officer may not enter the home for the purpose of effecting a warrantless arrest unless that officer has both probable cause and either exigent circumstances or consent. (Bashir, 445 F.3d at 1328). So we cannot see how law enforcement could enter a home to detain a person on reasonable, articulable suspicion of a criminal violation (resisting an officer without violence), a much lower standard than probable cause, when neither exigent circumstances nor consent exist. That just makes no sense to us. See United States v. Saari, 272 F.3d 804, 809 (6th Cir. 2001) (“It would defy reason to hold . . . that a warrantless in-home seizure is authorized to further an investigation, but that either a warrant or exigent circumstances are necessary when officers have the probable cause and intent to arrest.”)
4th Amendment Violated
Therefore, the 11th Circuit held Deputy Pederson lacked both probable cause and warrant in Moore’s case, it was a violation of Moore’s 4th Amendment rights when he entered his home to arrest him. Further, reasonable suspicion, if combined with exigent circumstances, will not support warrantless, non-consensual entry into a residence; this is because reasonable suspicion is a lower legal standard than probable cause.
Determining Qualified Immunity
Having determined that a Constitutional right was violated, the court then set out on the next step regarding qualified immunity; that is, to determine if this right was clearly established such that a reasonable officer should have known he was violating the Constitution.
Moore argued that because seemingly all cases that refer to Terry stops occur in public, the law was clearly established that Terry stops cannot occur in a private residence. The Court, however, ruled:
- The absence of case-law on a topic does not clearly establish the law that the conduct is unconstitutional.
- Moore was not able to cite case-law that occurred before his incident that held that Pederson’s conduct was unconstitutional.
- The case he does cite leaves open a question as to whether the officer acted reasonably under the Constitution; particularly, it held that while reasonable suspicion does not support a warrantless search of a residence, an officer can approach the residence to question occupants.
As such, the 11th Circuit held that the law was not clearly established in this area such as to put a reasonable officer on notice that he was violating the Constitution.
Therefore, Deputy Pederson is entitled to qualified immunity in this case.
Final Thoughts
In this case Deputy Pederson violated Moore’s 4th Amendment right of freedom from unreasonable search (reaching into his residence) and seizure (arrest on a misdemeanor charge from within the home without probable cause and exigent circumstances).
However, the 11th Circuit recognized that the law was not clear on this particular type of police-citizen contact. Terry v. Ohio involved a case based upon reasonable suspicion in a public place. Since the deputy did not enter the residence until the moment he determined to arrest Moore for resisting arrest – without violence, the law was not clear on his lawful authority to take someone in custody from their doorway’s threshold.
As such, though Deputy Pederson did violate Moore’s 4th Amendment rights, the law on this particular set of circumstances was not clear, and therefore Deputy Pederson was entitled to qualified immunity from civil penalties.
The Courts recognize that officers are required to make decisions in fractions of seconds. Those same officers are charged with upholding and enforcing the law. However, when the law is not specifically clear, the officer is entitled to the benefit of the doubt unless the officer’s actions are egregious and objectively unreasonable. Here, Deputy Pederson reasonably believed he could make an arrest at the threshold, because the law was not clear. The 11th Circuit correctly recognized the vagueness of the law on this matter and properly afforded the deputy qualified immunity from penalties.
Many civilians protest qualified immunity as the Courts allowing officers to get away with violating the Constitutional rights of citizens. However, the Courts do not arbitrarily allow officers to violate the law or the Constitution. They do, however, recognize that an officer cannot be held to a standard that is not itself made abundantly clear. The Courts recognize that officers are not doctorates of the law, and even if they were, lawyers and judges often stumble on the meaning of the law. As such, if the law is not clear, the officer is entitled to be free from penalty.
Despite these complaints from citizens, this is the very same concept that Courts use when the government attempts to penalize citizens with arbitrary and unclear laws. For instance – if the speed limit sign is knocked down or covered by foliage, Courts have routinely dismissed charges because the law was not clear to the citizen. Another example are many of the “disorderly conduct” laws that have been stricken down because they were too vague and broad.
The legal principle is the same on both sides of the law.