United States v. Kendrick Brinkley

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4455
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENDRICK BRINKLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Robert J. Conrad, Jr., District Judge. (3:16-cr-00324-RJC-DSC-1)
Argued: January 31, 2020 Decided: November 13, 2020
Before GREGORY, Chief Judge, and MOTZ and RICHARDSON, Circuit Judges.
Reversed, vacated, and remanded by published opinion. Judge Motz wrote the opinion, in
which Chief Judge Gregory joined. Judge Richardson wrote a dissenting opinion.
ARGUED: John Parke Davis, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Charlotte, North Carolina, for Appellant. R. Andrew
Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:
To execute an arrest warrant for Kendrick Brinkley, police officers entered a private
home. They had neither consent to do so nor a search warrant. Brinkley appeals the district
court’s denial of his motion to suppress evidence obtained in the home, arguing that the
officers lacked the necessary reason to believe both that he (1) resided in the home and (2)
would be present when they entered. We agree and so must reverse.
I.
In February 2017, a federal-state task force in Charlotte, North Carolina, sought to
execute outstanding arrest warrants. J.A. 113. Brinkley, then subject to an arrest warrant
for unlawfully possessing a firearm as a convicted felon, was among the targets. J.A. 111.
A.
Bureau of Alcohol, Tobacco, and Firearms (ATF) Special Agent Jason Murphy
oversaw the operation. J.A. 110–11. An ATF analyst first provided Agent Murphy with
at least two possible addresses. J.A. 125. Because a water bill for one of these addresses
was in Brinkley’s name, Agent Murphy initially believed that address was Brinkley’s most
likely residence. J.A. 125–26. One of the other addresses that the analyst provided was an
apartment on Stoney Trace Drive in Mint Hill, North Carolina, J.A. 64, 125–26; no utility
bill in Brinkley’s name was associated with this address, J.A. 125.
Charlotte-Mecklenburg Police Department Detective Robert Stark, a member of
Agent Murphy’s task force, also tried to locate Brinkley. J.A. 63–64, 110–11, 125. On
February 2, Detective Stark searched for Brinkley on CJLEADS, a North Carolina
2
statewide law enforcement database. 1 J.A. 64. Detective Stark found multiple addresses
in the database linked to Brinkley. J.A. 64–66, 154. Two CJLEADS entries — one for a
traffic citation, added January 2, J.A. 155–56, and another from the state department of
corrections, added “at some point in January” — were associated with the Stoney Trace
apartment, J.A. 64–65, 68.
But other CJLEADS entries that Detective Stark found placed Brinkley at numerous
other addresses. J.A. 74, 87. One entry, added five days before the January 2 traffic
citation, provided an address on Planters View Drive. J.A. 88, 154. Another entry, added
a month before that, gave an address on Stone Post Road in Charlotte. J.A. 88, 154. Older
entries, including at least five more from the same year, and others dating further back,
listed the Planters View Drive address and still other addresses. J.A. 74, 154. Detective
Stark did not look into the Planters View Drive address or any of these other addresses.
Rather, “based on the length of time that those addresses had been associated with”
Brinkley, Detective Stark believed that they “were probably family addresses” where
Brinkley did not reside. J.A. 89. But the detective intended to check these other addresses
if Brinkley was not found at the Stoney Trace apartment. J.A. 89.
Detective Stark then found Brinkley’s public Facebook page. J.A. 72–73. Posts
and photos there led him to believe that Brinkley was dating one Brittany Chisholm. J.A.
73. Detective Stark searched for Chisholm on CJLEADS and found that she was also
1
Detective Stark also searched for Brinkley on KBCOPS, an internal police
department reporting system, but there is no indication in the record that he found anything
there. J.A. 64.
3
associated with the Stoney Trace apartment. J.A. 73–74. Based on this information,
Detective Stark concluded that Brinkley lived there with Chisholm. J.A. 75.
Detective Stark reported his conclusion to Agent Murphy, who came to agree that
Brinkley probably resided in the Stoney Trace apartment. J.A. 111–12, 126. Neither
officer was certain that they had uncovered Brinkley’s address. J.A. 112, 126. Rather, in
Agent Murphy’s experience, it was “common for someone like Mr. Brinkley . . . to have
more than one place where they will stay the night.” J.A. 126.
The next day, Agent Murphy, Detective Stark, and three other police officers went
to the Stoney Trace apartment to conduct what both Agent Murphy and Detective Stark
characterized as a “knock-and-talk” to “start [their] search for Mr. Brinkley.” J.A. 75–76,
113, 126–27. The officers intended to “interview the occupants to find out if [he] was
indeed there,” and to arrest him if he was. J.A. 75, 113. Agent Murphy acknowledged that
he “had no idea if [Brinkley] was going to be there that morning,” but thought the Stoney
Trace apartment was the “most likely address” to “find Mr. Brinkley or evidence of his
whereabouts.” J.A. 134.
B.
The five officers arrived at the Stoney Trace apartment around 8:30 AM on Friday,
February 3, all wearing clothing identifying themselves as police officers. J.A. 75–77, 91.
In Agent Murphy’s words, they intended “to basically secure the area and sit up on the
house and wait to see if Mr. Brinkley left.” J.A. 134. Detective Stark knocked on the front
door, and the officers heard movement inside for about a minute. J.A. 77. A woman asked
who was there, and Detective Stark answered that it was the police. J.A. 77. The officers
4
heard movement for another minute until Chisholm, wearing pajamas, slowly opened the
door. J.A. 77, 114.
Detective Stark informed Chisholm that the officers were looking for Brinkley and
asked to enter the apartment. J.A. 96. Chisholm denied that Brinkley was there. J.A. 78,
96, 115, 128. According to Detective Stark, Chisholm grew “very nervous”; her “body
tensed” and her “breathing quickened,” and she looked back over her shoulder into the
apartment. J.A. 78. The officers saw another woman they did not recognize, but later
identified as Jermica Prigon, wearing pajamas and folding clothes in the living room. J.A.
79, 97, 116. The officers heard movement coming from a room in the back of the
apartment, and both Chisholm and Prigon repeatedly looked back toward that area. J.A.
78–80, 115–16.
Detective Stark again asked if Brinkley was present and if the officers could enter
to look for him. J.A. 79, 115. He explained that the police “had information that [Brinkley]
was staying at this residence” and “asked for [Chisholm’s] permission . . . to come through
and just do a walk through to make sure that he was indeed not at the residence.” J.A. 115.
Chisholm, still seeming nervous, answered that she did not want the police officers to enter
her apartment and asked if they had a search warrant authorizing them to do so. J.A. 79,
115.
Detective Stark estimated the entire exchange with Chisholm lasted “a little more
than a minute”; Agent Murphy thought it lasted more than three. J.A. 96–97, 129. Both
testified that based on Chisholm’s demeanor and behavior, Prigon’s presence, the
movement they heard in the back of the apartment, and the morning hour (8:30 AM), they
5
believed Brinkley was inside. J.A. 81, 117, 133. Agent Murphy testified that the sounds
and the women’s reactions led him to believe “100 percent that Mr. Brinkley was hiding
in the apartment.” J.A. 134.
At this point, the officers decided not to follow the original plan to secure the area
and wait to see if Brinkley left the home. J.A. 134. Instead, Agent Murphy told Chisholm
that he believed she was hiding Brinkley and that the officers were going to enter the
apartment to serve an arrest warrant on him. J.A. 81, 117. Then the five uniformed and
armed officers entered the apartment. J.A. 99. Detective Stark recalled that he probably
entered with his gun drawn; Agent Murphy believed that he did not draw his weapon at
this time. J.A. 81, 117. The officers found Brinkley in a bedroom. J.A. 82, 99, 118. They
arrested and handcuffed him. J.A. 82, 99, 118.
The officers conducted a protective sweep to check for others hiding in the
apartment. J.A. 82, 99, 119. They did not find anyone else but did see digital scales, a
plastic baggie containing cocaine base, and a bullet. J.A. 83, 105, 119–20, 131. Chisholm
then gave but subsequently revoked verbal consent to search the apartment, so the officers
obtained a search warrant, pursuant to which they seized three firearms and magazines.
J.A. 83–86, 108–09, 120–23, 159.
C.
A grand jury indicted Brinkley on two felon-in-possession charges under 18 U.S.C.
§ 922(g)(1), one charge of possession with intent to distribute cocaine base under 21 U.S.C.
§ 841(a)(1), and one charge of firearm possession in furtherance of a drug offense under
18 U.S.C. § 924(c)(1)(A). J.A. 8–10. Brinkley moved to suppress the evidence police
6
obtained after entering the Stoney Trace apartment. J.A. 12–15. He denied that he resided
in the apartment and explained that he was staying there as Chisholm’s overnight guest. 2
J.A. 13, 20. Brinkley argued that when the officers entered the apartment, they lacked
reason to believe that he (1) resided in the apartment or (2) would be present there at that
time. J.A. 19–23. The district court denied the motion. J.A. 144.
Brinkley entered an unconditional guilty plea to one felon-in-possession charge, the
predicate for the arrest warrant. He entered a conditional guilty plea to two other charges
arising from the search of the home, reserving the right to appeal the suppression ruling.
J.A. 220. The district court sentenced Brinkley to 84 months’ imprisonment and three
years’ supervised release on each count, to run concurrently. J.A. 206, 208. Brinkley
timely appealed.
We review the district court’s legal conclusions — including determinations of
reasonable suspicion and probable cause — de novo, Ornelas v. United States, 517 U.S.
690, 699 (1996), and its factual findings for clear error, construing the facts in the
Government’s favor, United States v. Alston, 941 F.3d 132, 136–37 (4th Cir. 2019).
II.
A.
The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.
2
Whether as a resident or as an overnight guest, Brinkley has standing to assert a
Fourth Amendment violation. See Minnesota v. Olson, 495 U.S. 91, 98–100 (1990).
7
Const., amend. IV. In most cases, a search or seizure is unreasonable unless authorized by
a warrant. See, e.g., City of Los Angeles v. Patel, 576 U.S. 409, 419 (2015); Katz v. United
States, 389 U.S. 347, 357 (1967). The warrant requirement “ensures that the inferences to
support a search are ‘drawn by a neutral and detached magistrate instead of being judged
by the officer engaged in the often competitive enterprise of ferreting out crime,’” Riley v.
California, 573 U.S. 373, 382 (2014) (quoting Johnson v. United States, 333 U.S. 10, 14
(1948)), and so safeguards “the individual’s interests in protecting his own liberty and the
privacy of his home,” Steagald v. United States, 451 U.S. 204, 212 (1981).
The warrant requirement carries special force when police seek to enter a private
home, which is “afforded the most stringent Fourth Amendment protection.” United States
v. Martinez-Fuerte, 428 U.S. 543, 561 (1976). “With few exceptions, the question whether
a warrantless search of a home is reasonable and hence constitutional must be answered
no.” Kyllo v. United States, 533 U.S. 27, 31 (2001). But a valid search warrant of course
authorizes police to enter a home.
In some circumstances, an arrest warrant can also allow officers to enter a home in
order to apprehend a suspect. But the Supreme Court has held that when police officers
seek to enter a home pursuant to an arrest warrant, the Fourth Amendment imposes specific
and different requirements for entry based on whether the home is the suspect’s own
residence or someone else’s.
When police armed with an arrest warrant seek to enter a suspect’s own home,
Payton v. New York, 445 U.S. 573 (1980), controls. There the Court concluded that “for
Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly
8
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.” Id. at 603. The Payton Court reasoned
that an arrest warrant “will suffice to interpose the magistrate’s determination of probable
cause between the zealous officer and the citizen,” so it is not constitutionally necessary
for officers to seek additional judicial authorization before entering a suspect’s own home
to arrest him. Id. at 602–03.
But one year later, in Steagald v. United States, 451 U.S. 204, the Court decided
that an arrest warrant alone did not authorize police to enter a third party’s home. The
Court explained that in this situation, unlike in Payton, “two distinct interests” protected
by the Fourth Amendment are at stake: not only “[the suspect’s] interest in being free from
an unreasonable seizure,” but also “[the third party’s] interest in being free from an
unreasonable search.” Id. at 216. While an arrest warrant may adequately protect the
former interest, it does “absolutely nothing to protect [the third party’s] privacy interest in
being free from an unreasonable invasion and search of [her] home.” Id. at 213.
Consequently, the Steagald Court held that, absent exigent circumstances or consent, the
Fourth Amendment requires police to obtain a search warrant before trying to apprehend
the subject of an arrest warrant in a third party’s home. Id. at 216.
Because the officers in this case assertedly believed that Brinkley resided in the
Stoney Trace apartment — and entered it pursuant solely to the authority of the arrest
warrant — Payton’s framework applies. We next consider what, exactly, Payton requires.
9
B.
The courts of appeals have unanimously interpreted Payton’s standard — “reason
to believe the suspect is within,” 445 U.S. at 603 — to require a two-prong test: the officers
must have reason to believe both (1) “that the location is the defendant’s residence” and
(2) “that he [will] be home” when they enter. United States v. Hill, 649 F.3d 258, 262 (4th
Cir. 2011). But the quantum of proof necessary to satisfy Payton has divided the circuits,
with some construing “reason to believe” to demand less than probable cause and others
equating the two standards. See United States v. Vasquez-Algarin, 821 F.3d 467, 474–77
(3d Cir. 2016) (collecting cases).
In Hill, 649 F.3d 258, we declined to join either camp, reasoning that the police
there had not satisfied even the lower standard. Id. at 263. In this case, however, we cannot
reach a conclusion as to Payton’s first prong — which was not at issue in Hill — without
first determining the quantum of proof that reasonable belief requires, and so we must
answer that question today.
The courts that interpret reasonable belief to demand less than probable cause have
done so with scant explanation. See Vasquez-Algarin, 821 F.3d at 474. They simply rest
on the logic “that the Supreme Court in Payton used a phrase other than ‘probable cause’
because it meant something other than ‘probable cause.’” United States v. Thomas, 429
F.3d 282, 286 (D.C. Cir. 2005). At first blush, that certainly seems reasonable. But the
courts that have endorsed the view that reasonable belief amounts to probable cause rely
on two more compelling rationales.
10
The first is that the Supreme Court itself has often used language apparently
equating “reason to believe” with probable cause. See Vasquez-Algarin, 821 F.3d at 475–
78; United States v. Jackson, 576 F.3d 465, 469 (7th Cir. 2009); United States v. Hardin,
539 F.3d 404, 416 n.6 (6th Cir. 2008). Years before Payton, for instance, the Court
concluded that “police had probable cause to search [a] car” when observations gave them
“reason to believe that the car was used in the commission of [a] crime.” Cardwell v.
Lewis, 417 U.S. 583, 592 (1974). Similarly, the Court has instructed “that ‘the substance
of all the definitions of probable cause is a reasonable ground for belief of guilt.’”
Maryland v. Pringle, 540 U.S. 366, 371 (2003) (alteration omitted) (quoting Brinegar v.
United States, 338 U.S. 160, 175 (1949)). And strikingly, in Maryland v. Buie, 494 U.S.
325 (1990), the Court used the language of probable cause to find Payton’s reasonable
belief standard satisfied, holding that officers with “an arrest warrant and probable cause
to believe [the suspect] was in his home . . . were entitled to enter and to search” for him
within. Id. at 332–33.
The second is that, as the Third Circuit reasoned in Vasquez-Algarin, 821 F.3d at
477–80, interpreting Payton’s reasonable belief to amount to probable cause is most
consistent with the special protections that the Constitution affords to the home. The home
has long enjoyed “pride of place in our constitutional jurisprudence.” Id. at 478; see, e.g.,
Florida v. Jardines, 569 U.S. 1, 6 (2013); Silverman v. United States, 365 U.S. 505, 511
(1961). Indeed, Payton itself reiterated that “the physical entry of the home is the chief
evil against which the wording of the Fourth Amendment is directed.” 445 U.S. at 585(internal quotation marks omitted).
11
Steagald sheds particular light on how Payton must be interpreted to respect the
home’s privileged status under the Fourth Amendment. As noted above, when officers
armed with an arrest warrant seek to apprehend the suspect in a third party’s home,
Steagald, not Payton, controls, and requires police to obtain a search warrant founded on
probable cause in order to enter the home. But Payton controls when officers believe that
the suspect resides in a certain home, even if they are mistaken. See Vasquez-Algarin, 821
F.3d at 472. Under these circumstances, the home’s actual residents are no longer entitled
to the judicial authorization founded on probable cause that Steagald guarantees; Payton’s
“reason to believe” standard is all that protects their weighty Fourth Amendment privacy
interests. Thus, when police seek to enter a home and are uncertain whether the suspect
resides there, interpreting reasonable belief to require less than probable cause “would
effect an end-run around . . . Steagald and render all private homes . . . susceptible to
search by dint of mere suspicion or uncorroborated information and without the benefit of
any judicial determination.” Id. at 480.
It seems to us that interpreting reasonable belief to require probable cause hews
most closely to Supreme Court precedent and most faithfully implements the special
protections that the Fourth Amendment affords the home. For these reasons, we join those
courts “that have held that reasonable belief in the Payton context ‘embodies the same
standard of reasonableness inherent in probable cause.’” Id. (quoting United States v.
Gorman, 314 F.3d 1105, 1111 (9th Cir. 2002)).
12
C.
Applying these requirements here means that before entering the Stoney Trace
apartment without a search warrant, the police needed to have probable cause to believe
that Brinkley resided there and would be present when they entered. See Hill, 649 F.3d at
262. We consider the totality of the circumstances in assessing probable cause. Florida v.
Harris, 568 U.S. 237, 244 (2013). The “quantity and quality” of information known to
officers bear on whether they have probable cause, with less reliable information requiring
more corroboration. See Alabama v. White, 496 U.S. 325, 330 (1990). With these
principles in mind, we turn to Payton’s first prong.
III.
The police could satisfy Payton’s first prong only if the information known to them
at the time they entered the Stoney Trace apartment provided them with probable cause
that Brinkley resided there — that is, if the information sufficed for a person of reasonable
prudence to believe that Brinkley resided there. See Ornelas, 517 U.S. at 696. In
investigating Brinkley’s residence, Agent Murphy relied exclusively on Detective Stark.
Detective Stark’s conclusion that Brinkley resided in the Stoney Trace apartment rested on
two entries on CJLEADS and Brinkley’s public Facebook. This information was
somewhat sparse, in that police officers typically rely on considerably more evidence to
establish reasonable belief as to a suspect’s residence. See Vasquez-Algarin, 821 F.3d at
482; Hardin, 539 F.3d at 421–22; see also, e.g., United States v. Hamilton, 819 F.3d 503,
507 (1st Cir. 2016) (police found the defendant’s address in an arrest warrant, postal
13
records, a “public database, booking reports, a National Insurance Crime Bureau accident
report, and credit bureau reports”); United States v. Route, 104 F.3d 59, 61 n.1 (5th Cir.
1997) (police found the defendant’s address in his credit card applications, his car
registration, and an electric and water bill in his name and verified that the defendant
received mail there). Probable cause, however, looks to the totality of the circumstances
and does not require any particular source or kind of information. Accordingly,
information gleaned from online sources like CJLEADS and Facebook could be enough to
establish probable cause of a suspect’s residence in some situations.
But here, the information Detective Stark gathered from CJLEADS did not point to
just one address but rather indicated that Brinkley might well be transient. Although the
two most recent entries that the detective found linked Brinkley to the Stoney Trace
apartment, many others — including the two immediately preceding entries, one added just
five days earlier 3 — linked Brinkley to other addresses. J.A. 154. The utility bill in
Brinkley’s name that the ATF analyst initially uncovered was associated with not the
Stoney Trace apartment but a different address. J.A. 125–26. This consistent pattern of
3
The dissent calls into question the accuracy of the date associated with this entry,
December 28, 2016. See Dissenting Op. at 39 n.11. But as Detective Stark explained,
“[t]he dates [on CJLEADS] before February 2nd probably would not have changed . . . if
it’s anything more than a month [before February 2nd] it’s probably there and present with
what it was” when Detective Stark first searched for Brinkley on CJLEADS. J.A. 88
(confirming that the entry for Planters View Drive is dated December 28, 2016). Thus, we
do not, as the dissent suggests, look upon the CJLEADS entries “with less-than-expert
eyes” and draw our own conclusions. Dissenting Op. at 38. Rather, we rely on Detective
Stark’s expert knowledge of the database’s inner workings. See id. at 39–40 (observing
that officers like Detective Stark “often review and navigate [CJLEADS] to determine the
date” of “addresses [that] are entered and updated”).
14
inconsistent addresses suggests that Brinkley may have tended to stay temporarily in
various places rather than residing at any one address. In fact, Agent Murphy himself
acknowledged that it was “common for someone like Mr. Brinkley . . . to have more than
one place where they will stay the night from time to time.” 4 J.A. 126.
But the officers investigated only one place. “[P]olice may rely on the totality of
facts available to them in establishing probable cause,” but they cannot “disregard facts
tending to dissipate probable cause.” Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir.
1988); accord Hernandez v. United States, 939 F.3d 191, 201 (2d Cir. 2019). The utility
bill in Brinkley’s name initially led Agent Murphy to believe that Brinkley resided at the
address associated with it, J.A. 125–26 — and with good reason, as utility bills typically
constitute strong evidence of a defendant’s residence. See United States v. Graham, 553
F.3d 6, 13 (1st Cir. 2009). But the officers did not look into this address. Nor did they
look into any of the numerous other addresses Detective Stark found on CJLEADS, even
those listed multiple times. J.A. 154. Had the officers ruled out any of these alternatives,
it could have bolstered their theory that Brinkley resided in the Stoney Trace apartment.
See id. (officers ruled out prior residence); cf. United States v. Young, 835 F.3d 13, 21 (1st
Cir. 2016) (no reasonable belief as to residence even where officers eliminated three other
4
Similarly, Detective Stark testified that, based on the CJLEADS entries and other
available information, he believed that Brinkley might be found at multiple addresses. J.A.
89 (explaining that while he “believed that [Brinkley] was staying at Stone Trace Drive,”
he also “believed it might be possible to find him at those other addresses” listed on
CJLEADS). Accordingly, the suggestion that Brinkley might be transient originated not
with us but with both experienced officers.
15
possibilities). But because they did not examine any other possibilities, everything hinged
solely on their investigation into that one address.
Pursuant to Payton and Steagald, the officers needed to establish reason to believe
not just that Brinkley was staying in the Stoney Trace apartment but that he resided there.
If Brinkley was merely staying as a guest in someone else’s home, Steagald would require
the officers to obtain a search warrant before they could enter it. Detective Stark’s
discovery that Brinkley was involved with Chisholm, and that Chisholm was associated
with the Stoney Trace apartment, certainly provided additional evidence that Brinkley
might well have stayed at Chisholm’s home, but it did not speak to whether he did so as a
resident or as Chisholm’s overnight guest. See United States v. Werra, 638 F.3d 326, 338
(1st Cir. 2011). Further investigation was necessary to establish probable cause that
Brinkley resided there. 5
Police often conduct such further investigation by going to the suspected residence,
where they can obtain “recent, eyewitness evidence connecting the suspect to the residence,
and often even [observe] conduct by the suspect that demonstrates a tie to the residence” —
5
The dissent, which repeatedly refers to Chisholm as Brinkley’s “fiancée,”
Dissenting Op. at 35, 44, contends that Detective Stark “believed” that Chisholm and
Brinkley were “living together before marriage” on Stoney Trace Drive, id. at 41. This
contention finds scant support in the record. Detective Stark did refer to a single
photograph on Brinkley’s Facebook page in which Brinkley “appeared to be engaged” to
Chisholm, but in the next sentence of his testimony, the detective explained that he
“believed they were in a dating relationship.” J.A. 73. (emphasis added). All other
testimony by the officers, and even submissions by the Government, either describe
Chisholm and Brinkley as “boyfriend and girlfriend,” J.A. 111, 158, or “dating,” J.A. 26,
75, 89, 133, 142. Nothing in the record supports the dissent’s claim that the officers
“believed” that Brinkley and Chisholm were “living together before marriage.” Dissenting
Op. at 41.
16
“common feature[s]” of cases finding that police satisfied Payton’s first prong. Hardin,
539 F.3d at 421. Officers gather this kind of evidence, for example, by conducting
surveillance at the suspected residence. See Hamilton, 819 F.3d at 505 (“police installed a
pole camera on [the street outside the residence] for surveillance purposes”); United States
v. Barrera, 464 F.3d 496, 498–99 (5th Cir. 2006) (officers found three vehicles associated
with the suspect at the residence). They also talk to people at or near the residence to gather
information from them. See Graham, 553 F.3d at 13 (police corroborated an address from
an incident report by, inter alia, showing a picture of the suspect to a person outside the
residence); Hardin, 539 F.3d at 407 (officers asked property manager who leased the
apartment in question); United States v. Lovelock, 170 F.3d 339, 344–45 (2d Cir. 1999)
(police confirmed address listed on suspect’s arrest warrant with two tenants in building).
In short, going to the residence in question opens several possible avenues for the police to
gather information about whether the suspect in fact resides there.
The officers in this case explained that they went to the Stoney Trace apartment with
precisely this investigatory intent in mind. Detective Stark testified that they planned to
conduct a “knock-and-talk” at the door of the apartment. J.A. 76. Agent Murphy
confirmed that their intent in doing so “was to interview the occupants to find out if Mr.
Brinkley was indeed there.” J.A. 113. He further explained that when the officers began
speaking with Chisholm at the doorstep, he still intended “to basically secure the area and
sit up on the house and wait to see if Mr. Brinkley left.” J.A. 134. And when the officers
doubted Chisholm’s assertion that Brinkley was not inside, Detective Stark “asked for her
17
permission . . . to come through and just do a walk through to make sure that he was indeed
not at the residence.” J.A. 115.
That the officers went to the apartment to obtain more information to establish that
Brinkley resided there underscores that at the time of their arrival, they had a “limited basis
to believe” that he did. Vasquez-Algarin, 821 F.3d at 481. On the doorstep of the
apartment, the police officers did talk to an occupant, but they gathered no evidence as to
whether this was Brinkley’s residence. 6 The police officers did not even ask Chisholm if
Brinkley resided there, but only if he was present — a critical difference under Steagald.
The unexpected arrival of five armed officers apparently led Chisholm to grow nervous as
they pressed her to allow them to enter. And the officers heard someone, or something,
moving inside. But these facts did not establish that Brinkley resided in the home. At the
time they entered the Stoney Trace apartment, all the officers had was the same “limited
basis to believe” that Brinkley resided there that they had when they knocked on the door.
Of course, “the police need not possess . . . rock-solid indicators of residence in
order to form a ‘reasonable belief’ that a suspect resides at a given place.” Graham, 553
F.3d at 13. But we have seen no case finding Payton’s first prong satisfied on evidence as
thin as the evidence here. The information known to the officers suggested that Brinkley
may have stayed temporarily in several places. The officers, however, investigated only
6
If anything, the information they learned raised more questions about whether
Brinkley resided there than it answered. For the officers found not just Chisholm but also
Prigon, a woman completely foreign to them, folding laundry in pajamas, as a resident
would.
18
one. Though the officers developed a well-founded suspicion that Brinkley might have
stayed in the Stoney Trace apartment at times, they failed to establish probable cause that
he resided there. And because the officers entered the apartment pursuant solely to the
authority of the arrest warrant, under Payton and its progeny, their entry was unlawful. 7
IV.
Even if the available information were enough to give police reason to believe that
Brinkley resided in the Stoney Trace apartment and so satisfy Payton’s first prong, the
evidence here falls far short of satisfying Payton’s second; that is, the officers failed to
establish probable cause that Brinkley would be present in the home when they entered.
In determining reasonable belief as to a suspect’s presence, courts assess the signs
of presence known to officers before they enter a home. See Graham, 553 F.3d at 14.
Though we now know that the officers’ belief that Brinkley would be present proved to be
7
Our determination that the officers failed to establish probable cause in no way
denigrates their years of experience. Nor does it suggest that we have not given “due
weight” to the “reasonable inferences” they drew “in light of [their] experience.” Terry v.
Ohio, 392 U.S. 1, 27 (1968); accord Ornelas, 517 U.S. at 699. But experience does not
establish probable cause. See 2 Wayne R. LaFave, Search & Seizure § 3.2(c) (6th ed. 2020)
(observing that “experience, without more, is not a fact to be added to the quantum of
evidence to determine if probable cause exists, but rather a lens through which courts view
the quantum of evidence”) (quotation marks and emphasis omitted). Experienced officers
like Agent Murphy and Detective Stark may not render the probable cause requirement a
“toothless tiger” through reliance on “cop-on-the-beat intuition[s].” United States v.
Rutkowski, 877 F.2d 139, 142 (1st Cir. 1989). Rather, their actions — like those of all law
enforcement officers — must be “judged against an objective standard” with a familiar
lodestar: whether the available information sufficed for a “man of reasonable caution” to
believe that the search was warranted. Terry, 392 U.S. at 22. Contrary to the dissent’s
intimations, Dissenting Op. at 42, even experienced officers may sometimes fail to meet
this standard.
19
correct, the Fourth Amendment demands that we “prevent hindsight from coloring the
evaluation of the reasonableness of a search or seizure.” Martinez-Fuerte, 428 U.S. at 565.
The Government points to six factors assertedly supporting the officers’ belief that
Brinkley would be present in the Stoney Trace apartment: (1) the officers’ purportedly
reasonable belief that he resided there; (2) the morning hour (8:30 AM); (3) Chisholm’s
delay in opening the door; (4) Chisholm’s nervousness; (5) the sounds of movement in the
apartment; and (6) Chisholm and Prigon’s looks toward the back of the apartment.
Response Br. at 26–28.
A substantiated belief as to a suspect’s residence is especially important. See Werra,
638 F.3d at 340 (“The fact that an individual is known to live at a particular location is one
sound reason to expect him or her to be there.”). But an ill-founded belief about a suspect’s
residence does not, and cannot, shore up a belief about his presence there. In Hill, for
instance, we noted that police went to the defendant’s suspected residence “to gain
information” and “had documented another primary residence” for the defendant, and we
discounted the probative value of other indicia of the defendant’s presence accordingly.
649 F.3d at 264. Here, too, the officers went to the Stoney Trace apartment to gather more
information. J.A. 89, 113. Moreover, while in Hill the police knew of only one other
possible primary residence, in this case the officers had documented multiple other possible
primary residences for Brinkley. Unlike in Hill, where the defendant’s girlfriend told
police that the defendant resided in the home that the officers entered, id. at 261 — and the
defendant himself had previously told an officer that he had recently moved to the city
20
where the home was located, id. — police here had no firsthand information about where
Brinkley resided.
The officers’ uncertainty as to Brinkley’s residence undermines the evidentiary
strength of any possible signs of his presence. See Werra, 638 F.3d at 339 (discounting
the probative value of time-of-day evidence for this reason). When police know a suspect
lives somewhere, generic indicia of presence may suggest that he is there, but when police
are uncertain about where he lives, the same signs suggest only that someone is there —
not necessarily the suspect. In this case, counting the officers’ investigation into whether
Brinkley resided in the Stoney Trace apartment as evidence that he would be found inside
would condone “bootstrapping,” allowing police to establish reasonable belief of presence
by poking around a suspected residence until they find “mere signs of life inside.”
Vasquez-Algarin, 821 F.3d at 482. With the officers’ uncertainty about where Brinkley
resided in mind, we look to the other factors to determine whether they established probable
cause that he would be present.
The hour and Chisholm’s delay in opening the door offer meager support for the
officers’ belief under these circumstances. It may be reasonable to assume that an
unemployed person would be home at 8:30 AM. See United States v. Magluta, 44 F.3d
1530, 1536 (11th Cir. 1995); United States v. Lauter, 57 F.3d 212, 215 (2d Cir. 1995). But
here the officers did not know whether Brinkley was employed; Agent Murphy
acknowledged that Brinkley might not have been home at 8:30 AM because “[h]e may
have gone to work.” J.A. 134. Cf. Werra, 638 F.3d at 340 (not reasonable to assume
suspect would be home at 10:00 AM without information about her employment status).
21
And as to the purported delay, Detective Stark testified that Chisholm answered the door
no more than two minutes after the officers knocked. J.A. 77. Two minutes is not an
unusual amount of time for a woman, in her pajamas, to respond to an unanticipated knock,
at 8:30 AM. We do not evaluate the totality of the circumstances by running through a list
of factors and ticking off each individually. See Harris, 568 U.S. at 244. But viewing both
of these factors in tandem with the others, we cannot see how they support probable cause
to believe that Brinkley was present in the apartment.
We are left with the noises in the apartment and Chisholm and Prigon’s reactions to
them and to the police officers. Unlike the “unresponsive noises” in Hill, “which could
have been voices or a television,” 649 F.3d at 264, the sounds of active movement here at
least indicated that some living being was present. But as in Hill, these sounds were not
particularized to the suspect; “at best, the police had reason to believe that someone was
present.” Id. (emphasis added). The same goes for Chisholm and Prigon looking toward
the source of the noises. Their looks toward the back of the apartment were typical
reactions to any source of noises. The noises could have been made by anyone, including
a child (and police knew that children might be present in the apartment, J.A. 90, 127) or a
grandparent, or even a pet. Prigon’s unanticipated presence accentuates the point: the
officers observed one entirely unexpected person in the apartment before they entered, and
they had no reason to think that the noises came from Brinkley rather than some other
unknown person.
The only evidence that someone was present that was even arguably particularized
to Brinkley was Chisholm’s nervousness. But “[i]t is common for most people to exhibit
22
signs of nervousness when confronted by a law enforcement officer whether or not the
person is currently engaged in criminal activity.” United States v. Massenburg, 654 F.3d
480, 490 (4th Cir. 2011) (alteration omitted) (quoting United States v. Salzano, 158 F.3d
1107, 1113 (10th Cir. 1998)). Here Chisholm was confronted by five armed officers
crowding the door to her apartment. The Government nonetheless insists that Chisholm’s
nervousness was a response to the officers’ questions about Brinkley. But police here did
not merely ask if Brinkley was inside or where he might be. From their very first question,
the officers conveyed their intent to enter the apartment. J.A. 96, 128. Throughout the
conversation, they consistently pressed Chisholm to permit them to enter the apartment.
J.A. 79, 115. Chisholm could have been nervous at the prospect of exposing any number
of people — for example, an elderly parent or a young child — to five armed policemen.
Chisholm might also have feared for herself. Recent events have underscored how
quickly police encounters with Black Americans may escalate, at times fatally. See Estate
of Jones v. City of Martinsburg, 961 F.3d 661, 673 (4th Cir. 2020). 8 “[W]e recognize that
our police officers are often asked to make split-second decisions,” id., and we respect the
8
Two months after this case was argued, police in Louisville, Kentucky, barged into
the home of Breonna Taylor, a 26-year-old emergency medical technician. The officers
entered Taylor’s home pursuant to a search warrant, which they obtained to investigate a
suspected drug dealer who was purportedly associated with the residence. See Tessa
Duvall & Darcy Costello, Louisville Police Pursued “No-Knock” Search Warrant in Fatal
Shooting of ER Tech in Her Home, Louisville Courier J. (June 9, 2020), https://
www.courier-journal.com/story/news/2020/05/12/breonna-taylor-louisville-emt-not-main-
target-drug-investigation/3115928001/ [https://perma.cc/3UGF-XQHA]. The officers
found neither the suspect nor any drugs in the home, but they shot Taylor eight times,
killing her. And this tragedy is hardly an anomaly. See, e.g., Kimberlé Crenshaw, “You
Promised You Wouldn’t Kill Me,” N.Y. Times (Oct. 28, 2019), https://www.nytimes.com/
2019/10/28/opinion/police-black-women-racism.html [https://perma.cc/6QRN-KUHL].
23
challenges that law enforcement officers face in the service of our communities. But we
cannot ignore this context when making sense of how someone reacted to five armed
officers at her door. That would make anyone nervous — including Chisholm, whether
Brinkley was inside the apartment or not. And we cannot conclude that Chisholm’s
understandable response gave rise to probable cause that Brinkley was present within.
To the contrary, Chisholm’s reluctance to allow the officers to enter her home
without a warrant to do so goes to the “very core” of the Fourth Amendment: “the right of
a man to retreat into his own home and there be free from unreasonable governmental
intrusion.” Silverman, 365 U.S. at 511. That right would not mean much if all officers
needed to enter a private home was a hunch about a suspect’s presence and a resident’s
understandably nervous reaction to the officers’ questioning. Cf. Jardines, 569 U.S. at 6(“This right would be of little practical value if the State’s agents could stand in a home’s
porch or side garden and trawl for evidence with impunity . . . .”).
Like Hill, 649 F.3d at 260, this case is ultimately about the “centuries-old principle
of respect for the privacy of the home.” Wilson v. Layne, 526 U.S. 603, 610 (1999). In
recognition of this constitutionally enshrined principle, “law enforcement officers often
rely on independent investigation and observations of the premises to determine whether a
suspect is actually inside before entering.” El Bey v. Roop, 530 F.3d 407, 417 (6th Cir.
2008). But police here conducted no independent investigation or observation of the
Stoney Trace apartment to determine whether Brinkley was within. They stacked a hunch
about Chisholm’s nervousness atop a hunch about Brinkley’s residence.
24
When police have limited reason to believe a suspect resides in a home, generic
signs of life inside and understandably nervous reactions from residents, without more, do
not amount to probable cause that the suspect is present within. This conclusion follows
from Hill, which for the sake of argument applied the less demanding interpretation of
reasonable belief and found even that not met. 649 F.3d at 263. If police could not satisfy
that lower standard with generic signs of life coming from a suspect’s known residence,
they surely cannot establish probable cause that a suspect is present based on generic signs
of life coming from a potential but uncorroborated residence. All of the facts the officers
in this case relied on, viewed together, did not give rise to reason to believe that Brinkley
would be present in the Stoney Trace apartment when they entered. To hold otherwise
would gut “the most stringent Fourth Amendment protection” that “private dwellings [are]
ordinarily afforded.” Martinez-Fuerte, 428 U.S. at 561.
V.
We hold that reasonable belief amounts to probable cause, and that the police in this
case lacked reason to believe Brinkley resided in the Stoney Trace apartment and would
be present when they entered. The Fourth Amendment requires a more rigorous showing
of cause before officers may lawfully enter a private home under these circumstances.
Accordingly, we reverse the district court’s denial of Brinkley’s suppression
motion and vacate Brinkley’s convictions on the two counts at issue. We also vacate
Brinkley’s sentence, see United States v. Pratt, 915 F.3d 266, 275 (4th Cir. 2019), and we
remand the case for further proceedings consistent with this opinion.
REVERSED, VACATED, AND REMANDED
25
RICHARDSON, Circuit Judge, dissenting:
If equipped with an arrest warrant “founded on probable cause,” officers have “the
limited authority to enter a dwelling in which the suspect lives when there is reason to
believe the suspect is within.” Payton v. New York, 445 U.S. 573, 603 (1980) (emphasis
added). Though the Supreme Court used the phrase “reason to believe,” my colleagues in
the majority hold that officers must have “probable cause to believe that [the suspect]
resided [at the dwelling] and would be present when they entered.” Majority Op. 13
(emphasis added). This divergence from what the Supreme Court said is not without some
support. But I would follow the words used in Payton until I am told otherwise.
And yet, the majority did not need to wade into this morass. Whatever the standard,
the officers here had enough to enter an apartment to arrest Kendrick Brinkley. Those
experienced officers made reasonable inferences that deserve our respect. Rather than
respecting those inferences and the district court who agreed with them, the majority
invents its own inferences with little support from a database with which judges have
precious little experience. I respectfully dissent.
I. Background
Experienced law enforcement, state and federal, 1 sought to arrest Brinkley on an
outstanding arrest warrant. To find him, they turned to a North Carolina law-enforcement
database, Criminal Justice Law Enforcement Automated Data Services (CJLEADS).
1
Detective Robert Stark had served as a police officer for twelve years. J.A. 63.
Special Agent Jason Murphy had worked for the ATF for nine years and had served in
other law-enforcement positions for more than seven years before that. J.A. 110.
26
Using that information, along with court records and Facebook, the officers identified
Brinkley’s most probable residence as being an apartment on Stoney Trace Drive.
The two most recent records in CJLEADS linked Brinkley to the Stoney Trace
address. The first record, from just a month earlier, involved a “ticket citation issued [to
Brinkley] for driving while [his] license [was] revoked.” J.A. 65. Cross-referencing the
North Carolina Courts’ system confirmed that Brinkley had provided the Stoney Trace
address during the traffic stop. A second record, this one from the Department of
Corrections, linked Brinkley to the Stoney Trace address. From this record, the officer
concluded that Brinkley gave the Stoney Trace address to his probation officer “as Mr.
Brinkley was on probation at the time.” J.A. 65. And Brinkley’s own counsel agreed this
second address was the “probation office[’s] indication that that was his residence.” J.A.
137. So it was no surprise that the district court found that Stoney Trace was the “place
that [Brinkley] gave as a residence.” J.A. 145; see also J.A. 144 (concluding that the
database provided “indicators of Mr. Brinkley giving that as an address, recent in time”)
The Stoney Trace address that Brinkley provided was corroborated by information
from Facebook. Brinkley’s Facebook page showed that Brinkley was engaged to or dating
Brittany Chisholm. CJLEADS identified Chisholm’s address as the same Stoney Trace
address, which the officers felt helped confirm that Brinkley resided there. The district
court agreed.
Considering this information together, the lead officers (Detective Stark and Special
Agent Murphy) concluded that Brinkley “was residing at the Stoney Trace address.” J.A.
74–75. While other addresses “had been provided over a number of years . . . [t]hey
27
appeared [to Detective Stark] to be family-associated addresses.” J.A. 74. As one officer
explained, the law-enforcement database had no other addresses “within the [prior] year
that [they] felt w[ere] credible as a place [Brinkley] was living.” J.A. 112–113, 126.
Having concluded that Brinkley likely resided on Stoney Trace, the officers went
“to interview the occupants to find out if Mr. Brinkley was indeed there.” J.A. 113. After
arriving around 8:30am, they knocked on the front door wearing clothing identifying
themselves as law enforcement. After hearing movement inside for “just about a minute,”
they knocked “a few more times and announced ‘police’” because “nobody was coming to
the door.” J.A. 77, 114. Eventually, a female voice asked who was there, and the officers
responded that it was the police. After another “minute’s worth of movement,” a pajama-
clad Chisholm “opened [the front door] slowly” to about “[a] full body length wide” so
that Detective Stark “could see all the way inside the apartment.” J.A. 77.
When asked if Brinkley was inside, Chisholm “became very nervous. Her body
tensed. Her breathing quickened. She looked back into the apartment and said, ‘He’s not
here.’” J.A. 78. She “looked back over her shoulder . . . multiple times.” J.A. 78. When
told that the officers were there to serve an arrest warrant for Brinkley, “Chisholm become
more and more . . . nervous . . . constantly looking behind her, stammering, [ ] never really
giv[ing] full answers.” J.A. 115.
While talking to Chisholm, the officers could hear movement coming from the
bedroom area. J.A. 79, 115–16. A second woman, later identified as Jermica Prigon,
crossed from the kitchen to the living room in her pajamas and appeared to be “messing
with [ ] folding clothes or something.” J.A. 79, 116. When another noise came from the
28
bedroom area, the officers saw Prigon “snap[] her head back towards that area to look.”
J.A. 116. And each time the officers told Chisholm that they believed Brinkley was inside,
she “would kind of do . . . a subconscious . . . look back over her shoulder towards the back
of the apartment.” J.A. 117.
Based on the noise from the bedroom area, Chisholm’s movement and demeanor,
Prigon’s actions, and the time of day, the officers “believed . . . 100 percent that Mr.
Brinkley was hiding in the apartment.” J.A. 134; see also J.A. 81, 117.
The officers then entered the apartment and, unsurprisingly, found Brinkley in the
bedroom’s hallway. A protective sweep revealed digital scales, a plastic baggie with
suspected crack cocaine, and ammunition in a clear box. After obtaining a search warrant,
the officers also found three guns.
After Brinkley was indicted, he sought to suppress the seized evidence. The district
court held a hearing and found that the officers reasonably believed that Brinkley lived at
the Stoney Trace address and that he was there when they entered. The district court based
its conclusion on: (1) Detective Stark’s CJLEADS and Facebook research, (2) Chisholm’s
“nervousness” which “[c]ould be explained by the fact that law enforcement was at the
door” but “also [was] highly likely to be connected to . . . [the fact that] they were looking
for Mr. Brinkley,” (3) Chisholm’s demeanor and constant looking back, (4) Prigon’s
looking back toward the bedroom, (5) the noise inside the apartment and the “two women
looking back at the direction of the noise,” (6) Detective Stark recognizing Chisholm as
Brinkley’s girlfriend, tying “Chisholm to that address, and [tying] the defendant” to it, and
29
(7) that the officers were there “early in the morning on a week day when a resident would
likely be at home.” J.A. 144–47.
II. Legal Framework
As the majority points out, “a private home . . . is ‘afforded the most stringent Fourth
Amendment protection.’” Majority Op. 8 (quoting United States v. Martinez-Fuerte, 428
U.S. 543, 561 (1976)). That said, officers seeking to execute an arrest warrant may “enter
a dwelling in which [a] suspect lives when there is reason to believe the suspect is within.”
Payton, 445 U.S. at 603 (emphasis added). Courts have disagreed on what the Supreme
Court meant when it said “reason to believe.” Is “reason to believe” the same as “probable
cause,” as the majority suggests? Or does “reason to believe” merely require a “reasonable
belief,” which may be less than probable cause to believe? 2
One might read inconsistency into the Supreme Court’s use of the terms “reason to
believe” or “reasonable belief.” As the majority points out, there is some language in
Supreme Court opinions that could be read to equate “reason to believe” with “probable
cause.” See Majority Op. 11 (citing Maryland v. Pringle, 540 U.S. 366, 371 (2003);
2
Some circuits have equated “reason to believe” and “probable cause.” See United
States v. Vasquez-Algarin, 821 F.3d 467, 480 (3d Cir. 2016); United States v. Gorman, 314
F.3d 1105, 1111 (9th Cir. 2002). Others have suggested the same in dicta. See United
States v. Jackson, 576 F.3d 465, 469 (7th Cir. 2009); United States v. Hardin, 539 F.3d
404, 416 n.6 (6th Cir. 2008). On the other hand, some circuits have found that the “reason
to believe” standard is less stringent than the “probable cause” standard. See United States
v. Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005); Valdez v. McPheters, 172 F.3d 1220, 1225
n.5 (10th Cir. 1999); United States v. Lauter, 57 F.3d 212, 215 (2d Cir. 1995); United States
v. Werra, 638 F.3d 326, 337 (1st Cir. 2011). And still others have side-stepped the
problem. See United States v. Barrera, 464 F.3d 496, 501 n.5 (5th Cir. 2006); United States
v. Risse, 83 F.3d 212, 216 (8th Cir. 1996); United States v. Magluta, 44 F.3d 1530, 1535
(11th Cir. 1995).
30
Cardwell v. Lewis, 417 U.S. 583, 592 (1974)). But other times, the Supreme Court more
plainly equates “reason to believe” with “reasonable suspicion.” See Terry v. Ohio, 392
U.S. 1, 27 (1968) (An officer may conduct a reasonable search “where he has reason to
believe that he is dealing with an armed and dangerous individual, regardless of whether
he has probable cause to arrest.”). Compare Maryland v. Buie, 494 U.S. 325, 337 (1990)
(A protective sweep is permitted when a “reasonable belief” exists that an area harbors a
dangerous individual (emphasis added)), with id. at 335–36 (“The sweep lasts no longer
than is necessary to dispel the reasonable suspicion of danger.” (emphasis added)).
As an inferior court judge, I must follow the Supreme Court’s guidance. And
although we are left with few tools to reconcile the Supreme Court’s cases in this area,
what we have leads me to conclude that “reason to believe” means a “reasonable belief,”
which is equivalent to “reasonable suspicion.” First, Payton itself sets the standard as
“reason to believe the suspect is within.” Payton, 445 U.S. at 603. The Supreme Court
chose not to use the phrase “probable cause,” a phrase it knows how to use. Instead, the
Court used “reason to believe,” the same phrase it used in Terry, the seminal case on
reasonable suspicion. Terry, 392 U.S. at 27. 3 Second, in Buie, a case that the majority
relies on, the Supreme Court differentiates “reasonable belief” from “probable cause” by
3
If “reason to believe,” as Terry uses it, meant “probable cause,” then “reasonable
suspicion” would mean “probable cause.” And yet the Supreme Court has been clear that
Terry’s standard is “obviously less than is necessary for probable cause.” See Kansas v.
Glover, 140 S. Ct. 1183, 1187 (2020) (quoting Prado Navarette v. California, 572 U.S.
393, 397 (2014)).
31
admonishing the Maryland court for requiring the higher probable cause standard and
demanding that it instead use the “reasonable belief” standard. See Buie, 494 U.S. at 336–
37. 4 I think it a more faithful reading of Payton to adhere to the words the Court used,
rather than words they did not. 5
III. A “Reason to Believe” Existed
But the dispute over what the Supreme Court meant when they used “reason to
believe,” at least here, should be academic. However one understands a “reason to
believe,” the officers had it here. Drawing on their experience, the officers drew inferences
from the information they had to conclude that Brinkley resided on Stoney Trace. And
4
The majority instead relies on Buie’s descriptive phrase that the officers possessed
“an arrest warrant and probable cause to believe Buie was in his home.” 494 U.S. at 332–
33 (emphasis added); see Majority Op. 11. This single sentence reflects only that the
Supreme Court believed that there was in fact “probable cause to believe Buie was in his
home.” See Buie v. State, 550 A.2d 79, 80 (Md. 1988) (explaining that the police were
surveilling Buie’s house and had placed a phone call to confirm he was there before
entering under an arrest warrant). The Supreme Court did not make a broader statement
that Payton required probable cause, particularly since Buie did not address the authority
of officers to enter a home pursuant to an arrest warrant.
5
I understand the majority to be concerned that reading Payton to permit warrantless
entries into homes with less knowledge than probable cause might “render all private
homes . . . susceptible to search by dint of mere suspicion or uncorroborated information
and without the benefit of any judicial determination.” Majority Op. 12 (quoting Vasquez-
Algarin, 821 F.3d at 480). But the majority creates a straw man, as “mere suspicion or
uncorroborated information” is far from how this Court has defined “reasonable belief.”
Instead, as the majority fails to recognize, “[a]n objectively reasonable belief,” although a
quantum of proof less than probable cause, still “must be based on specific articulable facts
and reasonable inferences that could have been drawn therefrom.” United States v. Yengel,
711 F.3d 392, 397 (4th Cir. 2012). This is worlds away from a “dint of mere suspicion”
that the majority has characterized the “reason to believe” standard as requiring. Majority
Op. 12 (quoting Vazquez-Algarin, 821 F.3d at 480).
32
once at the residence, the circumstances provided a reason to believe that Brinkley was
home.
Even using the majority’s probable-cause standard, the officers had “probable cause
to believe that Brinkley” (1) “resided [at the Stoney Trace address],” and (2) “would be
present when they entered.” Majority Op. 13. The majority disagrees. But in conducting
their analysis, the majority fails to give due weight to the inferences made by experienced
officers based on information in a law-enforcement database, a source that we as appellate
judges lack significant experience in interpreting.
Probable cause is not weighed “in terms of library analysis by scholars, but as
understood by those versed in the field of law enforcement.” United States v. Dickey-Bey,
393 F.3d 449, 453 (4th Cir. 2004) (emphasis added) (quoting Illinois v. Gates, 462 U.S.
213, 232 (1983)). This last part is important. In determining whether probable cause exists,
this Court must use a “pragmatic, common sense approach, [ ] defer[ring] to the expertise
and experience of law enforcement officers at the scene.” Id. (citing Ornelas v. United
States, 517 U.S. 690, 699 (1996)). And we are to give “due weight to inferences drawn
from [the] facts by resident judges,” who, like local officers, “view[] the facts of a particular
case in light of the distinctive features and events of the community.” Ornelas, 517 U.S.
at 699. “The most precise instrument that the judiciary possesses for ensuring the proper
balance between the interests that under-gird the Fourth Amendment is the on-the-ground
assessment of district courts.” United States v. Bumpers, 705 F.3d 168, 173 (4th Cir. 2013).
Local officers and local judges are in a better position, based on their experience in their
own communities, to make logical inferences from facts on the ground. Ornelas, 517 U.S.
33at 699. And when a resident judge agrees with the officers, we should be particularly
cautious about rejecting the agreed-upon inferences. 6
The majority errs by rejecting law enforcement’s inferences and replacing them with
its own inferences drawn from a sliver of information. And, in doing so, the majority fails
to “construe the evidence in the light most favorable to the Government, the prevailing
party below,” as we must do. United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).
A. The officers had probable cause to believe Brinkley resided at the Stoney
Trace address
The information known and the inferences made by these experienced officers
provided probable cause that Brinkley resided at the Stoney Trace address. See J.A. 89,
134. And the information developed when officers visited that address only confirmed that
reasonable belief.
Detective Stark testified that the two most recent CJLEADS results pointed to the
Stoney Trace address as Brinkley’s residence. That address had been provided once to an
officer and once to the Department of Corrections. And it was new. This led Detective
6
This does not mean that we defer to local law enforcement’s subjective belief that
probable cause exists. United States v. Gray, 137 F.3d 765, 769 (4th Cir. 1998). That
subjective belief is owed no deference. But the underlying inferences they make from the
facts are entitled to deference. And again, this is not controlling weight: after all, “while
officers have the advantage of experience, they do not necessarily have the advantage of
neutrality.” United States v. Johnson, 599 F.3d 339, 343 (4th Cir. 2010). But, “that is
where the district courts come in.” Id. And local district courts’ neutral inferences are to
be given not controlling, but “due weight,” at least as to their “finding[s] that [an] officer
was credible and the inference[s made were] reasonable.” Ornelas, 517 U.S. at 700. This
proposition is “an acknowledgement that satellite imagery often cannot replicate
community insights and on-the-ground intelligence.” Johnson, 599 F.3d at 344.
34
Stark to believe that this address was not a “family-associated address[],” but his current
residence. J.A. 74. And this inference was supported by Brinkley’s fiancée’s link to that
address.
Detective Stark made several inferences based on his experience in concluding that
the Stoney Trace address was Brinkley’s residence. First, Brinkley gave those supervising
his probation the Stoney Trace address as his residence. J.A. 65, 137. 7 Second, Brinkley
gave the Stoney Trace address as his residence to an officer during a traffic stop. J.A. 65.
Third, older addresses in the database were likely “family-associated addresses,” not
Brinkley’s current residence. J.A. 74. Fourth, it is common for someone to live with their
significant other. And finally, given that the two most recent CJLEADS results listed the
same Stoney Trace address where Chisholm lived, Detective Stark concluded that Brinkley
lived with her. J.A. 74–75. Hearing the testimony, the district court found these inferences
and the resulting conclusion persuasive. J.A. 144–47.
In place of law enforcement’s inferences and analysis, the majority looks at a single-
page printout from the CJLEADS database and hypothesizes that Brinkley “might well be
transient.” Majority Op. 14. The majority then suggests that perhaps “Brinkley may have
tended to stay temporarily in various places rather than residing at any one address.”
7
It is true Detective Stark did not try to find the probation officer to confirm his
conclusion, but that “does not mean that [his conclusions] were unreasonable.” Wadkins
v. Arnold, 214 F.3d 535, 543 (4th Cir. 2000). Given probation caseloads, it is far from
apparent that contacting a probation officer is even a realistic investigative technique.
Indeed, Brinkley’s PSR shows that when a U.S. Probation Officer tried to contact
Brinkley’s state probation officer, the state probation officer did not respond. J.A. 246.
35
Majority Op. 15. 8 Perhaps the majority’s own inferences are reasonable ones. But even
so, an alternative inference from the information does nothing to eliminate probable cause.
See District of Columbia v. Wesby, 138 S. Ct. 577, 592 (2018) (explaining that “innocent
explanations—even uncontradicted ones—do not have any automatic, probable-cause-
vitiating effect”). 9
And yet, the majority’s own inferences rest on meager information. The single-
page printout from the CJLEADS database on which their alternative hypothesis is based
is below.
8
The majority suggests that their transience conclusion originated with the officers.
Majority Op. 15 n.4. But Special Agent Murphy did not say that he thought, based on the
CJLEADS data, that it was a reasonable inference that Brinkley lacked a residence.
Instead, he only agreed that “someone like Mr. Brinkley” may stay in various places “from
time to time.” J.A. 126. But even acknowledging that possibility, he rejected the likelihood
of it here. See id. (“[A]nything’s possible . . . [b]ut I felt that all the facts that we had at
that point were pointing to the most likely place he was at was this address at Stoney
Trace.”). And Detective Stark did not say that Brinkley may have resided at multiple
addresses. He only agreed that “it might be possible to find [Brinkley] at those other
addresses if he was not located at Stoney Trace Drive.” J.A. 89 (emphasis added). And he
too rejected the majority’s premise. See id. (In response to the question: “[D]id you deem
. . . that it was possible that Mr. Brinkley was staying at one of those other addresses,”
Detective Stark responded: “No. I believed that [Brinkley] was staying at Stoney Trace
Drive.”). Ultimately, the testimony that the majority points to amounts to no more than a
similar suggestion that it might be possible to find me at my house, but also at my office,
my parent’s house, a vacation home, or my brother’s house, or that I stay at those locations
from time to time. Cf. J.A. 89 (The other addresses on Brinkley’s CJLEADS page were
probably “family addresses.”). That would do little to suggest that I am nomadic and lack
any residence.
9
The majority’s theory is also a new one, raised only on appeal. Before the district
court, Brinkley’s counsel admitted the government “certainly had some basis to believe
Mr. Brinkley was residing at 4709 Stoney Trace” and never mentioned transience or a
particular alternative residential address during his argument. J.A. 141.
36
37
To be clear, this page is not what the officers relied on in February 2017 but is a
later-printed example of what the database’s first page might have looked like at the time.
Compared to what the officers saw before arresting Brinkley, this single page includes
“more addresses,” “changed” addresses, and “changed” dates. J.A. 66–67 (noting Exhibit
1 was made “later” to illustrate the officer testimony and explaining that it included “more
addresses” with “different dates besides the addresses,” and that the addresses may have
changed since February 2, 2017). We are not sure what addresses were added or changed,
or what dates were changed. See J.A. 66–67, 88. So even if we were looking at this with
expert eyes, we would be unable to see what the officers saw. The majority, however,
comes at the illustrative printout with less-than-expert eyes and suggests that a reasonable
inference from the database was that Brinkley might have been transient.
But even if a sample page could support a new theory, this page only presents us
with skeletal information. We have only limited information about the various entries, no
information about the types of connections they indicate, no information about who else
was linked to the various addresses, nor a plethora of other information that was available
to the officers but is not included in the record. Cf. J.A. 155 (Exhibit 2 showing an
illustrative CJLEADS page that displays when an entry on Exhibit 1 is “clicked on,” see
J.A. 69).
For example, the majority identifies a Planters View address as having been
“entered” on December 28, 2016, five days before the traffic stop where Brinkley had
38
identified his address as Stoney Trace. 10 The majority says that the addition of another
address “just five days earlier” should undermine the conclusion that Brinkley resided on
Stoney Trace. Majority Op. 14. But we know little about the entry listing Planters View,
as the record does not include the click-through page for that entry. All we as judges know
is that the entry with the Planters View address was updated by someone on December 28,
2016. It seems plausible that Brinkley gave that address to another government actor much
earlier than December 28, 2016. 11 Again, officers have experience using this database as
part of their job responsibilities. They often review and navigate it to determine the date
10
Given the import that the majority places on this entry, it should be surprising that
neither the government nor defense counsel found it probative enough to specifically
mention during their arguments and that the district court did not find it worth discussing
when making its ruling.
11
Even the limited information in the record should make the majority question its
own hypothesis. The December 28 entry seems—at least to me based on the CJLEADS
printout—to be linked to an earlier criminal charge from 2015: “15CRS228668.” And
Brinkley was indeed arrested under that criminal case number for breaking and entering in
August 2015. See J.A. 246 (listing convictions). A reasonable officer could well conclude
that an address associated with a 2015 offense was an older address than the one that
Brinkley recently provided during a traffic stop and to his probation officer. Cf. J.A. 74
(explaining that the other addresses in the database dated to 2008 or 2009)
But even if one doubted the connection above, the majority errs in relying on its
hypothesis that the Planters View address was “added [to the system] just five days” before
Brinkley’s traffic offense. Majority Op. 14 (emphasis added). We only know that the
offense occurred on January 2, 2017 because the government provided an illustrative click-
through page showing as much. J.A. 155 (government’s Exhibit 2). The CJLEADS entry
that we have reflects an “update” to that entry on March 1, 2017. J.A. 154–55. So we
know that the date on the illustrative exhibit does not reflect the date of the traffic stop
when Brinkley gave that address as his residence. And yet the majority assumes that the
entry date provides useful timing information about the Planters View address.
I say all of this not to indicate that I know how to read the illustrative CJLEADS
page any better than the majority. It merely highlights that we, as judges, lack enough
information to say that the officers’ conclusions were unreasonable.
39
and frequency with which addresses are entered and updated. So even if we could explore
the system and learn more about each entry, our review of their inferences should be
deferential. But, given that we cannot, we lack any legitimate basis for finding their
inferences in this case to be unreasonable and for substituting our own inferences and
conclusions. Cf. Glover, 140 S. Ct. at 1188 (crediting the officer’s “commonsense
inference” that the defendant was likely the driver of the truck when a database search
showed that the defendant was the truck’s registered owner).
The majority also explains that the database included another entry—though we
cannot tell what address or the entry’s date—that was linked to a utility bill. Cf. J.A. 74
(noting that other addresses on CJLEADS dated to 2008 or 2009). The majority suggests
that the utility-bill address is just as likely Brinkley’s address because a utility bill
“constitute[s] strong evidence of a defendant’s residence.” Majority Op. 15 (citing United
States v. Graham, 553 F.3d 6, 13 (1st Cir. 2009)). The majority then says that the officers
should have done more to rule out that utility-bill-associated address, even though the
majority knows next to nothing about that address. Id. 12 Regardless, the majority does not
12
It seems difficult on this record to conclude that this utility bill was the “most
reasonably reliable information” as to where Brinkley lived. Appellant Reply 4. The utility
bill is not in the record and there is no discussion about when it was sent. For all we know,
it could have been from years before the February 3, 2017 arrest. Further, as Detective
Stark explained, many of these older addresses were likely “family-associated addresses.”
J.A. 74. Perhaps a member of the family put Brinkley’s name on the water bill, or another
family member bears a similar name. See J.A. 125–26 (noting a water bill that came back
either in “Mr. Brinkley’s name, or at least to a Kendrick Brinkley at another address”). All
of this is to say, just because the CJLEADS search turned up a utility bill with a different
address does not render unreasonable the officers’ conclusion that Brinkley lived on Stoney
Trace.
40
give due weight to the fact that the officers considered that address and found that it was
likely a “family-associated address[]” or was at least not “credible as a place where
[Brinkley] was living.” J.A. 74, 113. It might be true that utility-bill-associated addresses
are particularly strong indicators of where someone lives in some jurisdictions or at a given
time. Or perhaps not. Again, I have not examined an actual CJLEADS profile and had to
conclude whether an older utility-bill-associated address is better evidence of where
someone lives than an address recently provided twice. But we know the experienced
officers considered the utility bill and found it was more likely a family-associated address.
See Ornelas, 517 U.S. at 700.
The majority also decides that Brinkley’s apparent engagement to Chisholm
“certainly provided additional evidence that Brinkley might well have stayed at Chisholm’s
home, but it did not speak to whether he did so as a resident or as Chisholm’s overnight
guest.” Majority Op. 16. It may well be, in some communities, that living together before
marriage is unusual. But these officers, based on their own experience, believed
differently. And we must “apply the probable cause standard to the facts in their totality.”
United States v. Thomas, 913 F.2d 1111, 1115 (4th Cir. 1990) (emphasis added). So even
if you might infer that a couple would not live together before marriage, these officers had
more information: Brinkley had recently provided that same address during a traffic stop
and to his probation officer. So I find it hard to conclude that the officers unreasonably
considered his relationship status alongside that information to conclude that Brinkley was
living with Chisholm on Stoney Trace.
41
The majority repeatedly presses that the officers could have investigated more.
Majority Op. 15–17. And it is true that they could have done more. That is almost always
true. But we do not require officers to “exhaust every potential avenue for investigation.”
Smith v. Munday, 848 F.3d 248, 261 (4th Cir. 2017) (quoting Wadkins v. Arnold, 214 F.3d
535, 543 (4th Cir. 2000) (If officers “could have been more thorough, or even [if] . . . [their]
actions may have been mistaken, [that] does not mean that they were unreasonable.”)).
In sum, the majority failed to give the appropriate weight to the officer’s inferences,
which were entitled to substantial weight given the limited information in the record and
our lack of expertise with this law-enforcement database. And while the officers could
have done more, they did not have to. In total, the information here established probable
cause to believe Brinkley resided at the Stoney Trace address.
B. The officers had probable cause to believe that Brinkley would be at the
Stoney Trace address when they entered to execute the arrest warrant
The majority’s second-prong analysis is plagued by their faulty first-prong analysis.
In analyzing the second prong, the majority explains that any belief about Brinkley’s
presence was undermined by “uncertainty about where Brinkley resided.” Majority Op.
21; id. at 20 (“[A]n ill-founded belief about a suspect’s residence does not, and cannot,
shore up a belief about his presence.”). The majority is right that the reasonableness of the
belief of an arrestee’s residence affects the reasonableness of the belief in the arrestee’s
presence. See Vasquez-Algarin, 821 F.3d at 481 (A reasonable belief in an arrestee’s
residence “alone carries significant weight in establishing probable cause to believe the
arrestee is present.”). But this means that the majority’s improper inferences about
42
Brinkley’s residence become the engine behind their conclusion that the officers lacked
probable cause to believe Brinkley was present.
The majority acknowledges that the sounds coming from the apartment “at least
indicated that some living being was present.” Majority Op. 22. But the majority then
concludes that the police had “no reason to think that the noises came from Brinkley rather
than some unknown person.” Id. If the officers really had no reason to believe Brinkley
resided there, then the majority’s conclusion would hold. But if they did have reason to
believe Brinkley lived there, they would have some “reason to think that the noises [inside
the apartment] came from Brinkley.” Id. 13
The noises from inside the apartment, Chisholm’s increasing nervousness, and
Chisholm and Prigon’s responses to the noises suggested that someone else was inside the
apartment. And when combined with the reasonable belief that Brinkley resided on Stoney
Trace, officers had probable cause to believe that “someone else” was Brinkley.
13
The majority likens this case to United States v. Hill, 649 F.3d 258 (4th Cir. 2011).
But as the district court found, this case is materially different. In Hill, the officers admitted
that they did not believe Hill would be present at the residence when they did the search.
Id. at 263–64 (One officer believed that Hill would not be home because Hill had fled
before and that there was an 80 percent chance Hill would not be present when they went
to the residence. Another characterized the trip as one “in regards to a fugitive
investigation.”). And another resident informed the police that Hill was not there and
attributed the noise inside the apartment to her sister. Id. at 264. In Hill, the primary issue,
and why no “reason to believe” Hill was present was found, was that the police relied
“solely . . . on an unidentified noise coming from within the home.” Id. at 265. That was
not the case here. The officers were sure that Brinkley was present before they entered.
See J.A. 81, 134. And the majority cannot seriously contend that an unidentified noise was
the only evidence the officers had that Brinkley was there after the majority themselves list
five other pieces of evidence that would suggest Brinkley was in the apartment. Majority
Op. 20. Hill simply does not dictate this result.
43
* * *
Experienced officers used a law-enforcement database and supporting information
to concluded that Brinkley resided at the Stoney Trace address. Rejecting their inferences
and conclusions, the majority looks at the limited information we have in the record and
adopts an alternative theory of the evidence. They posit that Brinkley may have been
transient and without a residence—a theory not even argued below. They then suggest that
Brinkley providing law enforcement and probation with the same address that his fiancée
used could only signify that Brinkley was possibly an overnight guest. The majority then
uses their new theory of Brinkley’s residence to decide the officers lacked probable cause
to believe Brinkley was present at the apartment that morning.
I disagree. But what really matters is that we, as a court far removed from the reality
on the ground, are commanded to give due deference to law enforcement’s inferences that
the local district court agrees with. Giving due weight to those inferences, these officers
had probable cause to believe that Brinkley lived with Chisholm on Stoney Trace. And,
based on that belief and information developed after they arrived, they had probable cause
to believe that Brinkley was present. I respectfully dissent.
44