Letting the Exception Swallow the Rule:

The SJCs Missed Opportunity in

Commonwealth v. Tatum

CHARLES H. BASLER*

ABSTRACT
Under the Fourth Amendment to the Constitution of the United States
of America and Article XIV of the Massachusetts Declaration of Rights,
warrantless entry of a home is presumptively unreasonable. In two
landmark cases, Payton v. New York and Steagald v. United States, the
Supreme Court sought to enforce the Fourth Amendments warrant
requirements for police entry of the home. While providing a solid
foundation for Fourth Amendment jurisprudence, Payton and Steagald have
left a gap for lower courts to fill. One unanswered question is whether the
subject of an arrest warrant has the right to insist that police also obtain a
search warrant before entering a third partys residence to conduct the
arrest. The Massachusetts Supreme Judicial Court recently addressed this
question in Commonwealth v. Tatum and held that an arrest warrant alone is
sufficient to protect the suspects Fourth Amendment and Article XIV
rights. The SJCs opinion extends Paytons arrest warrant requirement,
rather than Steagalds stricter search warrant requirement, to cover the
arrest of subjects both within their own home and in the home of another.
This Comment argues that the extension of Payton is inconsistent with
existing Fourth Amendment and Article XIV jurisprudence and
unnecessarily undermines the privacy and security of innocent third
parties. Both the Supreme Court and the SJC have previously recognized
an overnight guests expectation of privacy in the hosts home. This
expectation of privacy is protected by the Fourth Amendment and Article
XIV and provides the guest with standing to challenge a search of the

* Candidate for Juris Doctor, New England Law | Boston (2015). B.A., cum laude,
Philosophy and Political Science, Boston University (2006). I would like to thank my parents,
Frank and Carolyn, my brother, Frank, and my girlfriend, Srah, for their continued support
and encouragement.

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residence. This Comment further argues that the SJC should have extended
Steagald and allowed the defendant standing to challenge the validity of the
search warrant while in the home of a third party. Because Payton offers no
protection for those not named in the arrest warrant, Steagalds search
warrant requirement is the only means of ensuring that the rights of both
the arrestee and the third party are adequately protected.

INTRODUCTION

ccording to John Adams, one of the most essential branches of . . .

liberty, is the freedom of ones house. A mans house is his castle.1
Adams believed that the use of general warrants or writs of
assistance threatened to totally annihilate this privilege.2 It was with this
sanctity of the home in mind that Adams drafted Article XIV of the
Massachusetts Declaration of Rights. 3 The inclusion of the word
unreasonable4 was not only novel for its time, but was intended by
Adams specifically to guard against the dangers of general warrants. 5 The
Fourth Amendment, being based upon Article XIV,6 shares this same
language and purpose.7 Under this reasonableness requirement, a
warrantless search of the home is presumptively illegal.8
Two landmark Supreme Court cases, Payton v. New York and Steagald v.
United States, have sought to enforce this sentiment through their
respective warrant requirements.9 While providing a solid foundation for
Fourth Amendment jurisprudence, Payton and Steagald left a number of
unanswered questions for lower courts to resolve.10 One of these
questionswhether the subject of an arrest warrant has the right to insist
upon a search warrant while in a third partys residencewas recently
addressed by the Massachusetts Supreme Judicial Court (SJC) in
Commonwealth v. Tatum.11 The defendant was arrested in a third partys
home and sought to suppress evidence seized during a search, arguing that
1

2 LEGAL PAPERS OF JOHN ADAMS 142 (L. Kinvin Wroth & Hiller B. Zobel eds., Harvard
Univ. Press, 1965).
2 Id.
3 Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV. 547, 64243,
685 (1999).
4

MASS. CONST. pt. I, art. XIV.

See Davies, supra note 3, at 685, 693.
6 Commonwealth v. Upton, 476 N.E.2d 548, 555 (Mass. 1985).
7 Payton v. New York, 445 U.S. 573, 58385 (1980).
8 Coolidge v. New Hampshire, 403 U.S. 443, 47778 (1971).
9 See infra Part I.B.
10 See infra Part I.C.
11 Commonwealth v. Tatum, 992 N.E.2d 987, 992 (Mass. 2013).
5

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the search warrant was obtained in violation of his rights under the Fourth
Amendment and Article XIV.12 The defendants motion to suppress was
denied, and he was convicted of drug trafficking and possession. 13 The SJC
affirmed the conviction, reasoning that Payton should apply to the subject
of an arrest warrant in a third partys home and, therefore, found that the
defendant was without standing to challenge the validity of the search
warrant.14
This Comment argues that the SJC was wrong to extend Payton to
arrests within third-party residences. This extension of Payton is
inconsistent with existing Fourth Amendment and Article XIV
jurisprudence which grants the defendant a legitimate expectation of
privacy in the third-party residence. The Courts opinion also undermines
the Steagald search warrant requirement and unnecessarily jeopardizes the
constitutional rights of innocent third parties not named in the arrest
warrant. Instead, the SJC should have extended Steagald and recognized
the defendants standing to challenge the validity of the search warrant
while in a third-party residence. This would have avoided the negative
constitutional and practical consequences that will likely result from the
unnecessary extension of the Payton doctrine.
Part I of this Comment examines the warrant requirements of the
Fourth Amendment under Payton and Steagald and the resulting gap left by
the Supreme Courts analysis. Part II outlines the factual basis for Tatum
and the SJCs holding. Part III discusses the additional Fourth Amendment
and Article XIV jurisprudence that should have been included in the SJCs
analysis. Part III also argues that the defendant had a constitutionally
protected expectation of privacy as an overnight guest in the third-party
residence, and therefore had standing to challenge the search warrant. Part
III further argues that Payton is the limited exception to the search warrant
requirement laid down in Steagald. Accordingly, the extension of Payton
allows the exception to swallow the rule. Part IV argues that extending
Payton unnecessarily undermines the security of innocent third parties.

12

Id. at 988.
Id.
14 See infra Part II.C.
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Background
A. The Warrant Requirements of the Fourth Amendment and Article
XIV
1.

The Fourth Amendment

The Fourth Amendment protects individuals from unreasonable

searches and seizures.15 The inclusion of both searches and seizures reflects
the dual interests the Fourth Amendment is intended to protectprivacy
and liberty.16 Consisting of two clauses, the Fourth Amendment protects
individuals from unreasonable searches of their home or person and
requires that warrants be based upon probable cause. 17 The probable cause
requirement is intended to prohibit the use of general warrants that do not
specify the particular person or place to be searched. 18 The physical entry
of the home is the chief evil against which the wording of the Fourth
Amendment is directed.19 This is a basic Fourth Amendment principle.20
Therefore, absent exigent circumstances, the warrantless search of a home
is presumptively unreasonable and therefore prohibited. 21
Interestingly, this basic principle did not always apply to entry of the
home to make an arrest.22 The Fourth Amendment was incorporated to the
states by the Supreme Court in 1961.23 Yet, prior to 1980, the Supreme
Courts Fourth Amendment jurisprudence did not require police to have a
warrant before making an in-home arrest.24 In fact, at the time Payton v.
New York was decided, at least twenty-three states had statutes authorizing
the warrantless arrest of a suspect within the suspects own home.25

15

U.S. CONST. amend. IV.

Peter J. Gordon, Comment, The Constitutionality of Warrantless Home Arrests, 78 COLUM. L.
REV. 1550, 155859 (1978).
16

17

Kristin S. McKeon, Theres No Place Like HomeExcept When You Are Under Arrest: The
Third Circuits Analysis of Home Arrests in United States v. Veal, 52 VILL. L. REV. 1021, 1024
(2007).
18 Payton v. New York, 445 U.S. 573, 583 (1980); Davies, supra note 3, at 558.
19 United States v. U.S. Dist. Court, 407 U.S. 297, 313 (1972).
20 United States v. Karo, 468 U.S. 705, 714 (1984).
21 Coolidge v. New Hampshire, 403 U.S. 443, 47778 (1971).
22 Sarah L. Klevit, Note, Entry to Arrest a Suspect in a Third Partys Home: Ninth Circuit Opens
the Door, 59 WASH. L. REV. 965, 966 (1984).
23

Mapp v. Ohio, 367 U.S. 643, 655 (1961).

Klevit, supra note 22, at 966; see, e.g., United States v. Santana, 427 U.S. 38, 45 (1976)
(Marshall, J., dissenting) (The Court declines today to settle the oft-reserved question of
whether and under what circumstances a police officer may enter the home of a suspect in
order to make a warrantless arrest.).
24

25

Klevit, supra note 22, at 966 n.8.

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Article XIV

Article XIV of the Massachusetts Declaration of Rights provides that

every individual has a right to be secure from all unreasonable searches,
and seizures.26 The similarity in language to the Fourth Amendment is no
coincidenceArticle XIV preceded and provided the basis for the language
of the Fourth Amendment.27 This common ancestry means that Article XIV
was also intended to prohibit the use of general warrants 28 by requiring
that searches and seizures be supported by probable cause. 29 Despite the
clear similarities in language and purpose, the SJC has not hesitated to find
greater protections under Article XIV than the Supreme Court has found
under the Fourth Amendment.30
B. Home Arrests Under Payton v. New York and Steagald v. United
States
1.

Payton v. New York

In 1980, the Supreme Court addressed whether and under what

circumstances police may enter a suspects home to make an arrest.31 New
York police sought Theodore Payton for the murder of a gas station
employee.32 Police arrived at Paytons home with the intention of placing
him under arrest.33 After knocking on the door and receiving no response,
the police forcefully entered Paytons residence.34 While inside, detectives
found a shell casing that was seized and later used as evidence against
Payton at trial.35 The police obtained no warrant prior to their entry, either
for Paytons arrest or to search his home, and instead relied on a state
statute that allowed a police officer to enter a building without a warrant

26

MASS. CONST. pt. I, art. XIV.

Commonwealth v. Upton, 476 N.E.2d 548, 555 (Mass. 1985); Herbert P. Wilkins, The
Massachusetts ConstitutionThe Last Thirty Years, 44 SUFFOLK U. L. REV. 331, 337 (2011).
27

28 See Jenkins v. Chief Justice of the Dist. Court Dept, 619 N.E.2d 324, 330 (Mass. 1993);
Joseph A. Grasso, John Adams Made Me Do It: Judicial Federalism, Judicial Chauvinism, and
Article 14 of Massachusetts Declaration of Rights, 77 MISS. L.J. 315, 319 (2007).
29

Commonwealth v. Rodriguez, 722 N.E.2d 429, 431 (Mass. 2000).

Jacki Ann Smith, Comment, Be Careful What You Say, Massachusetts . . . No Reasonable
Expectation of Privacy Recognized in Telephone Conversations: Commonwealth v. Eason, 34 NEW
ENG. L. REV. 657, 67071 (2000); see Wilkins, supra note 27.
31 Payton v. New York, 445 U.S. 573, 57475 (1980).
32 Joseph D. Harbaugh & Nancy Lesse Faust, Knock on Any DoorHome Arrests After
Payton and Steagald, 86 DICK. L. REV. 191, 196 (1982).
30

33

Payton, 445 U.S. at 576; Harbaugh & Faust, supra note 32, at 966.
Harbaugh & Faust, supra note 32, at 196.
35 Payton, 445 U.S. at 57677.
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for the purpose of making a felony arrest.36 Payton was unsuccessful in

suppressing the evidence obtained during the warrantless search and his
conviction was affirmed by the appellate court. 37
In its landmark decision, the Supreme Court held that, absent exigent
circumstances, the warrantless entry into a suspects home violates the
Fourth Amendment regardless of whether that entry is to conduct a search
or make an arrest.38 The Payton Court found that any differences between
entering the home to search or make an arrest are merely ones of degree
rather than kind.39 Both events involve the unconsented entry of the
homethe place where an individuals privacy interest is most clearly
defined.40 The Court read the language of the Fourth Amendment as
applying equally to property and people.41 As a result, the Court stated
that a firm line has been drawn at the door to the home.42
In its analysis, the Court noted that a search warrant requirement
would likely provide greater constitutional protection than an arrest
warrant.43 However, the Court reasoned that because an arrest warrant is
issued upon probable cause, it will suffice to interpose the magistrates
determination of probable cause between the zealous officer and the
citizen.44 The Court then held that, under the Fourth Amendment, police
may lawfully enter a suspects home if they possess a valid arrest warrant
and have a reasonable belief that the suspect is at home. 45 Importantly, the
Payton Court clearly indicated that its decision only addressed entry into
the suspects own home to make an arrest and not the home of a third
party.46
2.

Steagald v. United States

The question left open by Payton did not go unanswered for long; the
Supreme Court took up the issue of arrests in third-party residences the

36

Id. at 57677 & n.6; Gordon, supra note 16, at 1556.

Harbaugh & Faust, supra note 32, at 197.
38 Payton, 445 U.S. at 576; Edward G. Mascolo, Arrest Warrants and Search Warrants in the
Home: Payton v. New York Revisited and Modified Under State Constitutional Law, 66 CONN. B.J.
333, 344 (1992).
37

39

Payton, 445 U.S. at 589.

Id.
41 Harbaugh & Faust, supra note 32, at 199.
42 Payton, 445 U.S. at 590.
43 Klevit, supra note 22, at 967.
44 Payton, 445 U.S. at 602.
45 Id. at 603; Klevit, supra note 22, at 967.
46 Payton, 445 U.S. at 583.
40

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following term.47 In 1978, Gary Steagald was arrested and indicted on drug
charges following the search of his home by the Drug Enforcement
Administration (DEA).48 The DEA arrived at Steagalds home with an
arrest warrant for an individual thought to be at Steagalds address.49
Agents subsequently searched Steagalds home for the suspect and found
cocaine within the residence.50 Agents conducted two more searches, only
one under a valid search warrant, and found a larger quantity of cocaine. 51
At trial, Steagalds motion to suppress the evidence found without a search
warrant was denied.52
In Steagald, the Supreme Court addressed whether an arrest warrant is
sufficient to protect the interests of third parties whose homes are searched
when those third parties are not named in the arrest warrant. 53 The Court
expressly affirmed Paytons central thesisthat warrantless entry of the
home is presumptively unreasonable.54 The Court then held that an arrest
warrant alone is not sufficient; third parties have the right to insist upon a
valid search warrant before police can enter their home to search for a
suspect.55 The Court reasoned that search warrants and arrest warrants
protect different interests.56 An arrest warrant is intended to protect the
individuals liberty interest in being free from an unreasonable seizure,
while a search warrant is intended to protect the individuals privacy
interest in his home and possessions.57 Due to this distinction, the Court
found that while the arrest warrant was sufficient to protect the suspects
liberty interest it did absolutely nothing to protect [the third partys]
privacy interest.58
The Steagald Court expressed concern for the potential abuses that
could result from allowing police to use arrest warrants to search the

47 See Mathew A. Edwards, Posners Pragmatism and Payton Home Arrests, 77 WASH. L. REV.
299, 334 (2002).
48

Steagald v. United States, 451 U.S. 204, 20607 (1981).

The Supreme Court, 1980 Term (pt. G.2), 95 HARV. L. REV. 262, 263 (1981) [hereinafter
Searches in Third Party Homes].
49

50

Matthew Frank, Comment, A Guests Legitimate Expectation of Privacy: A Case Analysis of

Minnesota v. Olson, 110 S. Ct. 1684 (1990), 14 HAMLINE L. REV. 231, 245 (1990).
51 Steagald, 451 U.S. at 20607.
52 Id. at 207; Frank, supra note 50, at 245.
53 Frank, supra note 50, at 246.
54 Steagald, 451 U.S. at 211; Michael Verde, The Unwarranted Choice: Arrest Warrants and
Problems Inherent in the Payton Doctrine, 32 N.Y.L. SCH. L. REV. 169, 177 (1987).
55

Steagald, 451 U.S. at 216.

Searches in Third Party Homes, supra note 49, at 264.
57 Id.
58 Steagald, 451 U.S. at 213.
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homes of third parties.59 Only by requiring a search warrant could both the
liberty interests of the suspect and the privacy interests of the third party
be sufficiently protected.60 Taken together, Payton and Steagald outline the
constitutional requirements for police entry of the home to make an arrest
and are intended to protect both the liberty interest of the arrestee and the
privacy interest of the third party. 61
C. Arrest Warrants and Search Warrants Post Payton and Steagald
The Supreme Court left a number of important questions unanswered
in Payton and Steagald, such as what protections are due to a suspects cohabitants and what standards police must meet when determining where a
suspect resides.62 As a result, lower courts are given a choice as to which
precedent applies, Payton or Steagald, when these questions arise.63 With a
search warrant required to enter a third partys residence and only an
arrest warrant required to enter the suspects residence, the Supreme Court
did not explore whether the subject of an arrest warrant can insist upon a
search warrant when in a third-party residence.64 The majority of courts
addressing this issue have concluded that Payton applies and the subject of
an arrest warrant has no right to insist upon a search warrant outside his
own home.65 Courts usually make these determinations based on the
arrestees lack of standing.66
59 Id. at 215 (citing as an example the search of 300 homes by police under arrest warrants
issued for two individuals); Mascolo, supra note 38, at 337.
60

Steagald, 451 U.S. at 216.

Klevit, supra note 22, at 969.
62 Edwards, supra note 47, at 334; see, e.g., United States v. Litteral, 910 F.2d 547, 553 (9th
Cir. 1990) (applying Payton rather than Steagald to a suspects cohabitants).
63 Mascolo, supra note 38, at 344; see, e.g., United States v. Buckner, 717 F.2d 297, 299 (6th
Cir. 1983) (stating that Payton and Steagald framed the courts analysis, but neither applied to
the facts at hand); United States v. Robertson, 833 F.2d 777, 780 (9th Cir. 1987) (applying
Payton rather than Steagald when determining that a co-resident could not insist upon a search
warrant).
61

64 6 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT

11.3(b) (5th ed. 2012); see Commonwealth v. Tatum, 992 N.E.2d 987, 988 (Mass. 2013).
65 Federal courts almost universally extend Payton. United States v. Jackson, 576 F.3d 465,
468 (7th Cir. 2009); Tatum, 992 N.E.2d at 992. Conversely, at least one state court has conferred
standing under its state constitution. State v. Cleveland, 852 A.2d 1150, 1156 (N.J. Super. Ct.
App. Div. 2004).
66 See Jackson, 576 F.3d at 46768 (finding Steagalds search warrant requirement applicable
only to third-party residents); United States v. Agnew, 407 F.3d 193, 196 (3rd Cir. 2005)
(finding the suspect lacked standing because Steagald protected only the third-party resident);
United States v. Underwood, 717 F.2d 482, 484 (9th Cir. 1983) (finding that Steagalds search
warrant requirement is personal to the homeowner and cannot be asserted vicariously by the
person named in the arrest warrant); State v. ODell, 576 A.2d 425, 427 (R.I. 1990) (finding the

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II. Commonwealth v. Tatum

A. Facts
Police sought the defendant, Justin Tatum (Tatum), pursuant to three
active arrest warrants.67 A confidential informant told police that Tatum
was staying at a third partys residence.68 A Massachusetts State Police
officer disguised as a utility worker entered the property to determine
whether Tatum was inside.69 The officer did not obtain a search warrant
before entering the property.70 Police applied for a no-knock search
warrant after determining that Tatum was inside. 71 According to Tatum,
the affidavit offered in support of the no-knock warrant omitted the fact
that the officer entered the property without a warrant in order to confirm
Tatums presence.72 The following day the police executed the search
warrant and arrested Tatum in the basement of the residence. 73 During the
arrest, police found drugs and money in plain view and subsequently
applied for a second search warrant. 74 The second search turned up cash
and large quantities of drugs, and both Tatum and the third party were
charged with drug trafficking and possession with intent to distribute. 75
B. Procedural History
Tatum and the third-party resident were initially tried together, but the
jury was unable to return a verdict, resulting in a mistrial.76 Tatum then
moved to sever and a second trial was conducted. 77 At trial, Tatum sought
to suppress evidence obtained under the second search warrant by arguing
that the initial no-knock warrant was invalid.78 Tatum argued that because
the officer trespassed on the third partys property, the first warrant was

defendant has no standing to assert Steagalds protections); 3 LAFAVE, supra note 64, at 6.1(b).
67

Tatum, 992 N.E.2d at 988.

Id. at 990.
69 Brief and Record Appendix for the Defendant-Appellant at 4, Tatum, 992 N.E.2d 987 (No.
SJC-11167), 2010 WL 3415228, at *4 [hereinafter Brief for the Defendant].
68

70

Tatum, 992 N.E.2d at 995 (Lenk, J., dissenting).

Id.
72 Brief for the Defendant, supra note 69, at 1112.
73 Robert Williams, Commonwealth v. Tatum, 48 NEW ENG. L. REV. MASS. CRIM. DIG. 1516
(2013).
74 Id. at 16; Tatum, 992 N.E.2d at 989.
75 Tatum, 992 N.E.2d at 989; Williams, supra note 73, at 16.
76 Brief for the Commonwealth at 3, Tatum, 992 N.E.2d 987 (No. SJC-11167), 2011 WL
2531001, at *2 [hereinafter Brief for the Commonwealth].
71

77
78

Tatum, 992 N.E.2d at 989.

Id.

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obtained in violation of his rights under the Fourth Amendment and

Article XIV.79 The trial judge denied the motion to suppress and Tatum was
convicted on both counts.80 Tatum appealed the trial judges denial of his
motion to suppress and the appellate court affirmed without oral
argument.81 The SJC granted Tatums petition for further review.82
C. The SJCs Holding
The SJC determined that the issue on appeal was whether Tatum, as
the subject of an arrest warrant, could challenge the validity of a search
warrant for a third partys residence.83 While recognizing that there was no
Supreme Court precedent on the narrow question before it, the SJC
reasoned that Payton and Steagald provided the foundation for its review.84
The SJC held that Payton applied to an arrestee, both in his own home and
in the home of another, and that only an arrest warrant is needed to protect
the arrestees Fourth Amendment and Article XIV rights.85 Accordingly,
Tatum had no right to insist upon a search warrant and, therefore, was in
no position to challenge its validity.86 Without standing to challenge the
search warrant, Tatums motion to suppress the evidence was properly
denied.87 The third party may have been in a position to argue that the
officers trespass invalidated the search warrant, but Tatum was not. 88
The Court found that the additional search warrant requirement under
Steagald extended only to the third-party resident and not to the arrestee.89
Because Payton requires only that police obtain an arrest warrant before
entering a suspects own home, the Court reasoned that Tatum was not
entitled to any greater protections elsewhere.90 The Court also reasoned
that to extend Steagald and require a search warrant would produce an

79

U.S. CONST. amend. IV; MASS. CONST. pt. I, art. XIV; Tatum, 992 N.E.2d at 990.
Brief for the Commonwealth, supra note 76, at 4.
81 Tatum, 992 N.E.2d at 988.
82 Id.
83 Id. at 992.
84 Id. at 99192.
85 Id. at 992.
86 See Williams, supra note 73, at 17 (discussing the Courts holding).
87 See id. at 1718 (Because the defendant could not assert that the warrant violated the
Fourth Amendment and art. 14, requiring suppression of all items seized pursuant to the
ensuing searches, the judgments were affirmed.).
80

88

Tatum, 992 N.E.2d at 99394 n.17.

Id. at 992.
90 Id. at 99294.
89

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unacceptable paradox by providing Tatum with greater protections in

anothers home than he would otherwise receive in his own.91
D. The Dissent
Three Justices dissented, arguing that Steagald rather than Payton
should be extended to apply to suspects arrested within a third partys
home.92 The dissent argued that the majoritys opinion unnecessarily
jeopardized the rights of third-party residents.93 The dissent was troubled
by the likely unconstitutional means used to obtain the initial search
warrant and believed that under the majoritys holding no suspect could
challenge such a warrant unless the third-party resident was charged with
a crime.94 In these situations, unless the third-party householder is himself
arrested . . . there will be no consequence if police have not secured the
requisite valid search warrant before entering that house.95 According to
the dissent, improperly obtained evidence would be admitted at trial and
misconduct will not be deterred if police have little if any incentive to
obtain a search warrant before entering the third partys house.96
In addition, the dissent accused the majority of failing to account for
additional Fourth Amendment precedent that should have been included
in the analysis.97 The dissent cited Minnesota v. Olson and Minnesota v.
Carter, which both held that an overnight guest in a third partys residence
has a legitimate expectation of privacy protected by the Fourth
Amendment.98 The dissent pointed out that the overnight guest in Olson
had the right to insist upon a search warrant prior to police entry. 99 Because
neither Payton nor Steagald addressed this issue, the dissent argued that the
majoritys conclusion was not required and, by undermining the security
of the guest, the majority was also jeopardizing the security of the thirdparty resident.100

91

Id. at 993 (quoting Commonwealth v. Allen, 554 N.E.2d 854, 858 (Mass. App. Ct. 1990)).
Id. at 995, 99899 (Lenk, J., dissenting).
93 See id. at 998.
94 Tatum, 992 N.E.2d at 996 (Lenk, J., dissenting).
95 Id.
96 Williams, supra note 73, at 18 (quoting Tatum, 992 N.E.2d at 99697 (Lenk, J., dissenting)).
97 Tatum, 992 N.E.2d at 998 (Lenk, J., dissenting).
98 Id.
99 Id.; see Minnesota v. Olson, 495 U.S. 91, 9899 (1990).
100 Tatum, 992 N.E.2d at 99799 (Lenk, J., dissenting) (citing Minnesota v. Carter, 525 U.S. 83
(1998) (Ginsburg, J. dissent)).
92

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ANALYSIS
III. The SJCs Extension of Payton Is Inconsistent with Additional
Fourth Amendment and Article XIV Jurisprudence
A. The Court Viewed Payton in an Inappropriate Context
The SJC was wrong to extend Payton without considering additional
Fourth Amendment and Article XIV jurisprudence bearing directly on the
rights of the defendant as an overnight guest in a third partys residence.101
Since Payton was decided, there have been developments in the Supreme
Courts Fourth Amendment analysis that the SJC improperly ignored.102
These developments have been largely mirrored in comparable SJC
decisions construing the Massachusetts Declaration of Rights.103 Had the
SJC properly taken this additional jurisprudence into consideration, it
would have understood that Payton is the limited exception to the more
general rule set down in Steagald.104 Instead, the SJC extended Payton
beyond its intended reach and allowed the exception to swallow the rule.105
1.

The SJC Overlooked Expectations of Privacy Under Olson

and Carter

According to the Supreme Court, it is an unremarkable proposition

that individuals have protected privacy interests beyond the confines of
their own homes.106 One need not have any property rights in a given
location in order to assert Fourth Amendment protections. 107 Instead, an
expectation of privacy is legitimate if it is one that society is prepared to
recognize as reasonable.108 In Minnesota v. Olson, ten years after Payton,
101

See id. at 998.

See Olson, 495 U.S. at 9899 (holding that an overnight guest has a legitimate expectation
of privacy protected by the Fourth Amendment); Minnesota v. Carter, 525 U.S. 83, 90 (1998)
(contrasting overnight guests with those merely present with the consent of the resident).
102

103

See Commonwealth v. Morrison, 710 N.E.2d 584, 586 (Mass. 1999) (holding that an
overnight guest has a legitimate expectation of privacy protected by the Fourth Amendment
and Article XIV); see also Commonwealth v. Lopez, 937 N.E.2d 949, 95455 (Mass. 2010)
(recognizing an individuals legitimate expectation of privacy in a rented motel room).
104 See United States v. Underwood, 717 F.2d 482, 488 (9th Cir. 1983) (Skopil, J., dissenting)
(Both Payton and Steagald expressly limit, again and again, the Payton rule to an arrest entry
of ones own home.); see also Klevit, supra note 22, at 97374.
105 See Frank, supra note 50, at 25354 (characterizing Payton as the exception).
106 Rakas v. Illinois, 439 U.S. 128, 142 (1978).
107 Id. at 143.
108 Id. at 152 (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring))
(internal quotation marks omitted).

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the Supreme Court recognized an overnight guests legitimate expectation

of privacy in the hosts home.109 This expectation of privacy is protected by
the Fourth Amendment and gives the overnight guest standing to
challenge a search of the hosts residence.110 Because Fourth Amendment
rights are personal and cannot be asserted vicariously, Olson allows guests
to mount challenges to perceived Fourth Amendment violations separate
and distinct from any challenges that the host may bring. 111
In 1998, the Supreme Court further defined a guests expectation of
privacy in Minnesota v. Carter.112 In Carter, the Court expressly affirmed the
central holding of Olson by distinguishing individuals who were briefly in
a hosts apartment for commercial purposes from overnight guests.113
Arguably, Olson and Carter offer a bright-line rule that overnight guests are
entitled to assert Fourth Amendment claims relative to the search of the
hosts residence.114 This precedent is directly applicable to Tatum because
the defendant was an overnight guest at the time of his arrest. 115 Under
Supreme Court precedent, he had a constitutionally protected expectation
of privacy in the third-party residence.116 Despite the importance and clear
relevance of Olson and Carter, they were neither discussed nor cited by the
Tatum majority.117

109

Minnesota v. Olson, 495 U.S. 91, 98 (1990) (Staying overnight in anothers home is a
longstanding social custom that serves functions recognized as valuable by society.).
110 See Scott Bales, Make Yourself at Home: Guests and the Fourth Amendment, ARIZ. ATTY, July
1999, at 28, 30 (discussing a hypothetical under Olson where an overnight guest has standing
to challenge the legality of a search of the hosts apartment).
111

See id. at 29; 6 LAFAVE, supra note 64, at 11.3(b).

See Edwin J. Butterfoss, Be My Guest: The Hidden Holding of Minnesota v. Carter, 22
HAMLINE L. REV. 501, 502 (1999) (Carter is the second case . . . in which the United States
Supreme Court has addressed the issue of the expectations of privacy held by a visitor . . . .).
112

113 Minnesota v. Carter, 525 U.S. 83, 90 (1998) (Thus, an overnight guest in a home may
claim the protection of the Fourth Amendment, but one who is merely present with the
consent of the householder may not.); see United States v. Gamez-Orduno, 235 F.3d 453, 460
(9th Cir. 2000) (stating that the Courts holding in Carter did not undermine Olson).
114

Olson, 495 U.S. at 9697 (Olson's status as an overnight guest is alone enough to show
that he had an expectation of privacy in the home . . . .) (emphasis added); Butterfoss, supra
note 112, at 529; Bales, supra note 110.
115 Commonwealth v. Tatum, 992 N.E.2d 987, 995 n.1 (Mass. 2013) (Lenk, J., dissenting).
116 See Olson, 495 U.S. at 9697. The defendant in Olson had a legitimate expectation of
privacy due solely to his status as an overnight guest. Id. Tatum, likewise, was an overnight
guest and this status alone must afford him the same protection. See Tatum, 992 N.E.2d at 998
99 (Lenk, J., dissenting); see also Commonwealth v. Morrison, 710 N.E.2d 584, 586 (Mass. 1999).
117 See Tatum, 992 N.E.2d at 99194 (discussing the defendants lack of standing without
considering his status as an overnight guest).

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v. 49 | 145

The Court Overlooked Massachusetts Precedent that

Provides Individuals with Expectations of Privacy Outside
the Home

Beyond Supreme Court precedent, the SJC overlooked precedent of its

own.118 Article XIV, like the Fourth Amendment, protects individuals from
unreasonable searches and seizures.119 In some cases, the SJC has reached
the same or similar conclusions as the Supreme Court, often citing to both
the Fourth Amendment and Article XIV as the basis for its decisions.120 The
SJC should have recognized the defendants expectation of privacy as an
overnight guest in Tatum, a result reached not only by the Supreme Court
in Olson but by the SJC in its own prior decisions.121
In Commonwealth v. Morrison, the SJC held that an overnight guest may
have a legitimate expectation of privacy while in a third partys
residence.122 The SJC cited and discussed Olson, although its holding
recognized the expectation of privacy under Article XIV, as well as the
Fourth Amendment.123 The SJC has also recognized an individuals
legitimate expectation of privacy in a rented motel room.124 In
Commonwealth v. Lopez, the SJC held that the defendants motel room was
analogous to his home for Fourth Amendment and Article XIV purposes. 125
Similarly, in Commonwealth v. Porter the SJC recognized a juveniles
legitimate expectation of privacy in a room within a shelter. 126 The Porter
Court cited Olson in support of its holding and reasoned that [w]hile . . .
the shelter residents in this case surrendered a substantial amount of
personal privacy in return for temporary housing this did not eliminate
118

See, e.g., Morrison, 710 N.E.2d at 586 (holding that Article XIV protects an overnight
guests expectation of privacy).
119

See MASS. CONST. pt. I, art. XIV; Wilkins, supra note 27, at 337.
Compare United States v. Jones, 132 S. Ct. 945, 949 (2012) (warrantless GPS tracking), and
Olson, 495 U.S. at 9899 (overnight guests have a legitimate expectation of privacy), with
Commonwealth v. Rousseau, 990 N.E.2d 543, 55253 (Mass. 2013) (warrantless GPS tracking),
and Morrison, 710 N.E.2d at 586 (overnight guests have a legitimate expectation of privacy).
120

121

See Tatum, 992 N.E.2d at 998 (Lenk, J., dissenting) (stating that the majority overlooked
additional precedent); Olson, 495 U.S. at 9899 (finding overnight guests to have a legitimate
expectation of privacy under the Fourth Amendment); Morrison, 710 N.E.2d at 586 (finding
overnight guests have an expectation of privacy under the Fourth Amendment and Article
XIV).
122

Morrison, 710 N.E.2d at 586. However, the particular defendant in Morrison did not have
a privacy interest because he was present in violation of a protective order. Id.
123 See id.
124 Commonwealth v. Lopez, 937 N.E.2d 949, 954 (Mass. 2010).
125 Id. at 95455. But see Commonwealth v. Molina, 948 N.E.2d 402, 408 (Mass. 2011) (stating
that a motel guests expectation of privacy terminates upon checkout).
126

Commonwealth v. Porter, 923 N.E.2d 36, 4445 (Mass. 2010).

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their expectation of privacy under Article XIV and the Fourth

Amendment.127
While these cases are by no means exhaustive of the SJCs analysis, it is
clear that Massachusetts courts recognize the individuals expectation of
privacy outside the home, 128 particularly in locations where the individual
stays overnight.129 As with the Supreme Court opinions discussed above,
this line of analysis is relevant because Tatum was an overnight guest in
the third partys home130 and, therefore, he had an expectation of privacy
protected by Article XIV.131 Despite this relevance, the Tatum majority
failed to conduct any meaningful analysis on this issue and relegated any
mention of overnight guests to a footnote.132
3.

As an Overnight Guest, Tatum Had Standing to Challenge

the Initial Warrantless Search of the Property

Individuals are free from unreasonable searches and seizures under

both the Fourth Amendment and Article XIV, not only in their own homes
but also in the homes of others.133 The analyses in Steagald and Olson
support the conclusion that a guest with a legitimate expectation of privacy
has standing to challenge the reasonableness of a search of a third-party
residence.134 This conclusion is also supported by SJC decisions such as
Morrison and Lopez.135 As an overnight guest, Tatum had an expectation of
privacy protected by both the Fourth Amendment and Article XIV. 136 Prior

127

Id. at 45 & n.6.

See, e.g., Commonwealth v. Connolly, 913 N.E.2d 356, 376 (Mass. 2009) (in automobiles);
Commonwealth v. Martinez, 716 N.E.2d 1039, 1042 (Mass. App. Ct. 1999) (motel room);
Commonwealth v. Lee, 585 N.E.2d 759, 761 (Mass. App. Ct. 1992) (in a supermarket
basement).
128

129 See Lopez, 937 N.E.2d at 95455 (motel room); Porter, 923 N.E.2d at 4445 (homeless
shelter). But see Commonwealth v. Mallory, 775 N.E.2d 764, 76869 (Mass. App. Ct. 2002)
(finding that any expectation of privacy was lost when the defendant abandoned the room in
which he had been staying).
130

Commonwealth v. Tatum, 992 N.E.2d 987, 995 n.1 (Mass. 2013) (Lenk, J., dissenting).
See Commonwealth v. Morrison, 710 N.E.2d 584, 586 (Mass. 1999) (An overnight guest .
. . has standing to raise privacy claims in respect to a search of that occupant's premises.).
132 See Tatum, 992 N.E.2d at 994 n.15. The majority stated that [a] person with a less
extensive connection to the residence, e.g., an overnight guest . . . would likely be in a position
to challenge the validity of the search warrant. Id. However, the majority opinion never
connected this statement with Tatums status as an overnight guest and instead found that
because he did not live at the residence, he was not entitled to standing. Id. at 994.
131

133

See Minnesota v. Olson, 495 U.S. 91, 98 (1990); Morrison, 710 N.E.2d at 586.
6 LAFAVE, supra note 64, at 11.3(b).
135 See supra notes 122, 125 and accompanying text.
136 See Olson, 495 U.S. at 98; Morrison, 710 N.E.2d at 586.
134

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to police obtaining a warrant to search the third-party residence, an officer

disguised as a utility worker likely trespassed on the property. 137 The
majority itself stated that, in addition to the third-party resident, [a]
person with a less extensive connection to the residence, e.g., an overnight
guest . . . would likely be in a position to challenge the validity of the
search warrant.138 According to the majoritys reasoning, Tatum lacked
standing to challenge this warrantless search because he did not live at the
residence and was the subject of an arrest warrant.139 This conclusion was
reached without regard for his status as an overnight guest. 140 As discussed
above, Tatum was an overnight guest and should have had standing to
challenge the search of the third-party residence.141
B. A Better View: Payton Is the Exception to the Steagald Rule
The Tatum majority expressed concern that extending Steagald and
allowing the defendant to challenge the search warrant would result in an
unacceptable paradox.142 This supposed paradox would provide Tatum
with standing to object to the lack of a search warrant for the third-party
residence when he would not have that same standing in his own home. 143
A number of courts have shared this same concern. 144 However, there only
appears to be a paradox when the issue is examined exclusively through
Payton-tinted lenses.145 When additional Fourth Amendment analysis is
included, a different picture emergesone where Payton is a limited
exception to the search warrant requirement. 146 This view is also supported

137

Brief for the Defendant, supra note 69, at 4.

Commonwealth v. Tatum, 992 N.E.2d 987, 994 n.15 (Mass. 2013).
139 See id. at 994 (But the defendant, who was the subject of the arrest warrants; who,
according to the record, did not reside at the third partys residence; and who consistently has
sought to challenge any suggestion that he did . . . is not in a position to advance such a
claim.) (footnotes omitted). But see Olson, 495 U.S. at 98; Morrison, 710 N.E.2d at 586.
138

140

See Tatum, 992 N.E.2d at 994.

See Tatum, 992 N.E.2d at 99899 (Lenk, J., dissenting); Olson, 495 U.S. at 98; Morrison, 710
N.E.2d at 586; see also supra notes 115116, 130131 and accompanying text.
142 Tatum, 992 N.E.2d at 993 (quoting Commonwealth v. Allen, 554 N.E.2d 854, 858 (Mass.
App. Ct. 1990)).
141

143

Id.; see also Allen, 554 N.E.2d at 858 (discussing the same paradox).
See United States v. Jackson, 576 F.3d 465, 468 (7th Cir. 2009); United States v. Agnew,
407 F.3d 193, 19697 (3rd Cir. 2005); United States v. Underwood, 717 F.2d 482, 484 (9th Cir.
1983); Allen, 554 N.E.2d at 858.
145 See Underwood, 717 F.2d at 490 (Skopil, J., dissenting); Tatum, 992 N.E.2d at 998 (Lenk, J.,
dissenting) (stating that the majority fails to include relevant jurisprudence in its analysis).
144

146

Klevit, supra note 22, at 97374; see also Underwood, 717 F.2d at 488 (Skopil, J., dissenting).

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by a closer reading of Payton and Steagald than the majority was willing to
undertake.147
1.

The SJC Extended Payton Beyond its Intended Reach

The majoritys reasoning overlooks an important but crucial detail: the

initial warrantless search of the third-party residence is not within the
limited authority given to law enforcement under Payton.148 The Payton
exception applies only when the subject of the arrest warrant is found at
his home.149 This is evident in the language employed by the Payton Court:
[A]n arrest warrant founded on probable cause implicitly carries with it
the limited authority to enter a dwelling in which the suspect lives.150 The
Payton Court did not explain why an arrest warrant grants this limited
authority.151 The lack of any further explanation on this point may explain
some of the paradox concerns raised by lower courts.152 However, the
Supreme Courts discussion of arrest warrants and search warrants in
Steagald helps to clarify Payton as the exception.153
In Steagald, the Supreme Court made an important distinction between
arrest warrants and search warrants. 154 An arrest warrant is issued upon a
showing that there is probable cause to believe an individual has
committed a crime.155 A search warrant is issued upon showing there is
probable cause to believe that the object of a search is located in a specific
place.156 Importantly, the same search warrant requirements apply when
the object of the search is a person rather than a thing. 157 The Steagald Court
stated:
Because an arrest warrant authorizes the police to deprive a
person of his liberty, it necessarily also authorizes a limited
invasion of that persons privacy interest when it is necessary to
147 See Underwood, 717 F.2d at 488 (Skopil, J., dissenting) (comparing the language used by
the Supreme Court in Payton and Steagald).
148 See Klevit, supra note 22, at 97374 (In Payton, the Court expressly limited its holding to
entries into a suspects own home to effect his arrest.).
149 See id.; Frank, supra note 50, at 253 (It must be remembered that Payton is a strict
exception to the warrant requirement.).
150

Payton v. New York, 445 U.S. 573, 603 (1980) (emphasis added).
Verde, supra note 54, at 17374; Mascolo, supra note 38, at 335.
152 See Mascolo, supra note 38, at 33536 (arguing that the incomplete treatment on this
issue has led to confusion among lower courts); Verde, supra note 54, at 17374.
153 See United States v. Underwood, 717 F.2d 482, 488 (9th Cir. 1983) (Skopil, J., dissenting)
(comparing the language used by the Supreme Court in Payton and Steagald).
151

154

Steagald v. United States, 451 U.S. 204, 21213 (1981); Verde, supra note 54, at 178.
Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996); Mascolo, supra note 38, at 34041.
156 Illinois v. Gates, 462 U.S. 213, 238 (1983); Mascolo, supra note 38, at 34041.
157 Steagald, 451 U.S. at 214.
155

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arrest him in his home. This analysis, however, is plainly inapplicable

when the police seek to use an arrest warrant as legal authority to
enter the home of a third party to conduct a search.158

This language further limits the application of Payton to circumstances

in which police enter a suspects own home to effectuate an arrest and
distinguishes it from the search of a third-party residence.159 Therefore,
whether a particular warrant properly protects an individuals rights
depends upon what the warrant authorized the agents to do.160 In Tatum,
the initial search of the property was to determine whether the defendant
was inside and was not an entry of the defendants own home to make an
arrest.161 This search implicated Tatums expectation of privacy protected
by both the Fourth Amendment and Article XIV.162 Accordingly, this search
went beyond the limited authority inherent in an arrest warrant as
characterized by the Supreme Court.163
2.

The SJC Should Have Extended Steagald to Ensure that the

Defendants Privacy and Liberty Interests Were Protected

Under existing Fourth Amendment and Article XIV precedent, Tatum

was an overnight guest with a protected privacy interest in the third-party
residence.164 This privacy interest was not adequately protected by the
arrest warrant that granted the police only limited authority to enter
Tatums own residence.165 The majoritys extension of Payton means that
Tatum does not have standing to challenge either the search warrant issued
for the third-party residence or the likely unconstitutional means employed
by police to obtain that warrant. 166 Yet, this result was not required by the
Supreme Courts holding in Payton.167 This result is also inconsistent with
existing Article XIV precedent, which gives an overnight guest standing to
challenge the search of a third partys residence.168 Because Tatum was

158

Id. at 214 n.7 (emphasis added).

United States v. Underwood, 717 F.2d 482, 488 (9th Cir. 1983) (Skopil, J., dissenting).
160 Steagald, 451 U.S. at 213.
161 See Brief for the Defendant, supra note 69, at 4.
162 See supra notes 116, 130131 and accompanying text.
163 See Steagald, 451 U.S. at 214 n.7; Payton v. New York, 445 U.S. 573, 603 (1980).
164 See supra notes 116, 130131 and accompanying text.
165 See supra notes 160163 and accompanying text.
166 Commonwealth v. Tatum, 992 N.E.2d 987, 996 (Mass. 2013) (Lenk, J., dissenting).
167 Id. at 997.
168 Compare Commonwealth v. Morrison, 710 N.E.2d 584, 586 (Mass. 1999) (holding that an
overnight guest has standing under Article XIV to challenge a search of the hosts residence),
with Tatum, 992 N.E.2d at 994 & n.15 (stating that the defendant, who was staying in the thirdparty residence overnight, lacked standing to insist upon a search warrant).
159

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entitled to the protection of a search warrant, only the extension of Steagald

would have protected both his liberty and privacy interests. 169 Extending
Steagald would not have given Tatum any greater rights than he would
have had in his own home, but merely recognized Payton as the limited
exception to these rights.170
IV. Extending Payton Undermines the Privacy and Security of Innocent
Third Parties
The SJC was wrong to extend Payton to subjects of arrest warrants in
third-party residences because this extension will undermine the
constitutional rights of innocent third parties.171 A major criticism of the
Payton arrest warrant requirement is that it does little to protect those not
named in the arrest warrant.172 This was of particular concern to the dissent
in Tatum.173 In fact, the Supreme Court stated quite clearly in Steagald that
an arrest warrant does absolutely nothing to protect the rights of the
third-party resident.174 By extending Payton to subjects of arrest warrants in
third-party residences, the SJC puts these third parties at risk. 175 Denying
suspects standing to insist upon a search warrant in anothers home has
even been characterized as bizarre reasoning [which] would render the
Steagald rule a virtual nullity.176
The Supreme Courts Payton analysis not only fails to account for entry
into third-party homes,177 but it fails to consider the privacy interests of the
suspects possible cohabitants.178 An arrest warrant is issued based on
probable cause that the suspect has committed a crimethis includes no
judicial determination regarding the privacy rights of a homes
occupants.179 Further compounding the problem is that [i]n general, arrest
169

See United States v. Underwood, 717 F.2d 482, 490 (9th Cir. 1983) (Skopil, J., dissenting)
(arguing that, under an analogous situation, Steagald should have been extended to protect the
defendants expectation of privacy).
170 See Klevit, supra note 22, at 97374; Frank, supra note 50, at 253.
171 Tatum, 992 N.E.2d at 999 (Lenk, J., dissenting).
172 See Mascolo, supra note 38, at 343; Verde, supra note 54, at 176.
173 See Tatum, 992 N.E.2d at 997 (Lenk, J., dissenting).
174 Steagald v. United States, 451 U.S. 204, 213 (1981).
175 See Tatum, 992 N.E.2d at 999 (Lenk, J., dissenting) (Chiefly because the courts decision
undermines the security of third-party householders, I respectfully dissent.).
176

6 LAFAVE, supra note 64, at 11.3(b).

See Payton v. New York, 445 U.S. 573, 583 (1980) (stating that the Courts decision only
addressed entry into the suspects own home).
177

178

Mascolo, supra note 38, at 343; see Roger D. Groot, Arrests in Private Dwellings, 67 VA. L.
REV. 275, 27980 (1981).
179 See United States v. Underwood, 717 F.2d 482, 490 (9th Cir. 1983) (Skopil, J., dissenting)
(When police go to other persons homes to search for a suspect, however, the arrest warrant

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warrants constrain police lessand thus offer less privacy protection

than do search warrants.180 In reality, an entry to arrest may not only look
very much like an entry to search, 181 but may also subsequently result in a
search of the entire dwellingwithout a search warrant.182 Police entry into
a home to make an arrest implicates the privacy interests of the suspects
cohabitants.183 However, under Payton, these individuals would only have
standing to challenge police entry if it occurred in the absence of an arrest
warrant.184 The privacy interests of third parties are so poorly protected by
arrest warrants that at least one commentator has called for Payton to apply
only in the suspects own home and only when they live alone.185
By extending Payton to third-party residences the SJC is extending
Paytons shortcomings to the third-party residents themselves.186 In theory,
third-party residents are protected by their standing to insist upon a search
warrant in addition to the arrest warrant. 187 However, as the dissent in
Tatum cautioned, police could potentially circumvent the need for a search
warrant by choosing not to charge the third-party resident with any
crimes.188 According to one commentator, [i]f individuals are precluded
from objecting to warrantless entries and searches of homes by their lack of
standing, little incentive remains for law enforcement officers to comply
with the warrant rules announced in Payton and Steagald.189 The reality of

simply does not contain this minimum protection as to the suspect's own rights. There has
been no judicial identification of the place to be searched.).
180

Groot, supra note 178, at 279.

See Harbaugh & Faust, supra note 32, at 20406 (comparing searches incident to arrest
under an arrest warrant to searches conducted pursuant to search warrants).
181

182 See, e.g., Jeremy H. Rothstein, Note, Track Me Maybe: The Fourth Amendment and the Use of
Cell Phone Tracking to Facilitate Arrest, 81 FORDHAM L. REV. 489, 515 (2012) (discussing the
extent of searches incident to arrest and protective sweeps of a suspects home).
183 Commonwealth v. Dejarnette, 911 N.E.2d 1280, 1285 (Mass. App. Ct. 2009) (Where,
however, officers are seeking to execute the arrest warrant at a third partys residence, the
rights of persons not named in the warrant who live at that residence are directly
implicated.) (quoting Steagald v. United States, 451 U.S. 204, 212 (1981)); see Verde, supra note
54, at 176.
184

See Steagald, 451 U.S. at 23031 (Rehnquist, J., dissenting).

Groot, supra note 178, at 28485.
186 See Mascolo, supra note 38, at 343. Cohabitants living in the suspects residence are in an
identical position as the third-party resident in Steagald. Id. If Payton is inadequate to protect
one, it is also inadequate to protect the other. See Frank, supra note 50, at 253 (Allowing police
officers to enter a home with only an arrest warrant for a guest, which does not in any way
address the reasonableness of the home entry, would seriously undermine the fourth
amendment's protection of the home.).
185

187

See Steagald, 451 U.S. at 216.

Commonwealth v. Tatum, 992 N.E.2d 987, 996 (Mass. 2013) (Lenk, J., dissenting).
189 Harbaugh & Faust, supra note 32, at 237.
188

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these concerns is evident in the very facts of Tatum: in order to determine

Tatums location the police improperly violated the privacy interests of
both Tatum and the third-party resident, yet under the majority opinion
the police are free to do so without any consequences. 190
Another practical implication to be considered under Payton is the
ambiguity surrounding residency determinations.191 Determining where a
suspect lives and when that residency began is far short of an exact science:
individuals could stay at a certain location for only a couple of days and
have that location be considered their home by law enforcement.192 This
not only blurs the line between guest and resident, but this ambiguity has
consequences for other individuals who may live there. 193 Once police
consider the location to be the suspects residence, they can enter to arrest
the suspect,194 conduct a search incident to arrest and protective sweep of
the entire home,195 and do so without affording the homes occupants the
minimum protections of a search warrant. 196
Extending Payton eliminates a judicial determination of probable
cause to search and judicial limitation on the scope of the search.197 By
failing to recognize a guests standing to challenge a search warrant the
protective cloak of Payton and Steagald will become a sham.198 Arguably,
the only way to ensure that Steagalds warrant requirements are followed is
to allow the subject of an arrest warrant standing to challenge the
reasonableness of the search.199 Weakening the search warrant requirement
allows police to search homes under something resembling a general
warrant.200 This is precisely what the Fourth Amendment and Article XIV

190

See Tatum, 992 N.E.2d at 997 (Lenk, J., dissenting).

See 3 LAFAVE, supra note 64, at 6.1(b) ([T]here may arise another difficult issue: just
what is it which makes a certain location an individuals place of residence for purposes of the
Payton-Steagald distinction?).
191

192

See Steagald, 451 U.S. at 23031 (Rehnquist, J., dissenting).

See Frank, supra note 50, at 24445 (discussing the uncertainty that can arise as to
whether a guest is actually a resident); see, e.g., Dan Stamm, Officer Fires Shot in Home with
Kids, Dogs Present, NBC10 PHILA. (Sep. 30, 2013, 12:56 PM), http://www.nbcphiladelphia.com/
news/local/Warrant-Search-Shots-Fired-225784481.html (discussing police entry of a home to
search for a suspect who moved out six years prior).
193

194

Payton v. New York, 445 U.S. 573, 603 (1980).

See Rothstein, supra note 182, at 515.
196 See United States v. Underwood, 717 F.2d 482, 490 (9th Cir. 1983) (Skopil, J., dissenting).
197 Id. at 487.
198 Harbaugh & Faust, supra note 32, at 238.
199 Underwood, 717 F.2d at 491 (Skopil, J., dissenting).
200 See Frank, supra note 50, at 254.
195

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were intended to prevent201 and the Supreme Court hoped to avoid under
Steagald.202

CONCLUSION
The SJC was wrong to extend Payton to arrests within third-party
residences. Finding that the defendant did not have standing to challenge
the validity of the search is inconsistent with existing Fourth Amendment
and Article XIV jurisprudence. As an overnight guest, existing precedent
recognized the defendants expectation of privacy in the residence and
provided him with standing to challenge the search. Considering the
additional Fourth Amendment jurisprudence would have put Payton in the
appropriate contextone where Paytons arrest warrant requirement is the
limited exception to the search warrant requirement. The SJC is opening
the door to potential law enforcement abuses by minimizingor possibly
even negatingSteagalds search warrant requirements through a Paytoncentered approach to arrests of suspects outside their own homes. The SJC
should have extended the Steagald search warrant requirement to subjects
of arrest warrants in third-party residences because it would have
provided greater protections for innocent third parties. The SJC could have
grounded the extension of Steagald in existing precedent or found that a
search warrant was required under Article XIV.

201
202

See Grasso, supra note 28, at 319.

Steagald v. United States, 451 U.S. 204, 215 (1981).