En Banc Eighth Circuit Splits Over Arrest of Escapee

In a case of first impression, an en banc Eighth Circuit ruled that the arrest of an escapee from a work release program in his "home" did not violate the Fourth Amendment, even though the warrant supporting the arrest and search of his "home" was an administrative warrant issued by the warden rather than a formal warrant issued by a judge. The decision reversed an earlier three-judge panel that held the search violated the Fourth Amendment because it was not based on a warrant issued by a neutral and detached magistrate. The facts of U.S. v. Lucas are straightforward. Tyran Lucas, nearing the end of a prison term on drug and weapons charges, was assigned to work-release. While on work-release, Lucas absconded, apparently hiding out for months in the residence of a woman, Theresa Scaife. The head of the Nebraska DOC issued an administrative warrant for the arrest and return of Lucas. Police located Lucas at Scaife's residence, knocked and announced an intent to enter and search. Scaife asked if they had a warrant; police said no but would enter to find Lucas anyway. Scaife opened the door, admitted his presence in the home, and was taken to a squad car. Police searched for Lucas, found him in a closet, ordered him to get dressed in clothes they tossed him. Lucas wanted to wear something else. Police searched the rejected outfit, finding drugs. Lucas dressed and was taken into custody. Police let Scaife reenter the residence and obtained consent to search the entire apartment, finding weapons and other evidence. Lucas moved to suppress the evidence, claiming the police did not have a valid warrant issued by a neutral and detached magistrate. The district court found that the administrative warrant was authorized by statute and that the warden was not in the business of "ferreting out crimes" and so more akin to a neutral and detached party. A panel of the Eighth Circuit reversed, agreeing with Lucas that the arrest violated the Warrant Clause of the Fourth Amendment. The Eighth Circuit agreed to an en banc rehearing and affirmed the trial court.

Five judges (Murphy, Loken, Malloy, Smith, Gruender) would have found the administrative warrant comported with the Fourth Amendment. Judge Bye found the warrant invalid, but would deny the suppression under the "good faith" exception of U.S. v. Leon. Three other judges (Shepherd, Colloton and Benton) found that Lucas had no reasonable expectation of privacy in Scaife's home and therefore the Fourth Amendment did not apply. And four judges (Beam, Wollman, Arnold, Riley) would reinstate the panel opinion invalidating the search.

Surprisingly, no other federal court has had to resolve this issue -- whether an escapee has Fourth Amendment rights in the home in which he "resided" after fleeing from custody, and whether a search of that home can only follow from a valid Fourth Amendment warrant.

Procedurally, this case is even more unusual in that a majority of the en banc court agrees with the panel conclusion that the search was invalid because of the invalid warrant. However, a majority reinstated the conviction based on arguments raised for the first time by the Government to the en banc panel. As stated by Judge Beam in dissent, "This is a garden variety separation of constitutional powers case gone awry. A majority of the judges in regular active service in this circuit employed late blooming, previously unannounced legal concepts, advanced by the government for the first time in its petition for rehearing en banc to vacate the unanimous opinion of the three-judge panel and to create an en banc court. The en banc panel, contrary to existing Supreme Court and circuit precedent, now accepts these new government theories to administer to Tylan Lucas what the court apparently believes are his just desserts for being a bad person and an escaped felon. To reach this result, the court performs a Texas "Sidestep" around clearly established and plainly articulated Fourth Amendment jurisprudence." As Judge Beam further noted, "Indeed, after intensive computerized research of existing databases, I have been unable to find a single instance in this circuit when an en banc panel has allowed new issues it believed to be controlling to be raised for the first time by the losing party in a petition for rehearing en banc, except, of course, matters of subject matter jurisdiction or Article III standing. Considerable circuit precedent is being extinguished today by this en banc opinion."

A majority of the en banc court continue to support the belief that an arrest of an escapee in his home can only occur after the issuance of a valid Fourth Amendment warrant, one issued upon probable cause by a neutral and detached judicial officer. The issue of what, if any, expectation of privacy Lucas had in his home seems a closer question. His expectation was certainly diminished by his status as an escapee; but was it zero or de minimus? The issue is not trivial, because if even a de minimus standard applies, as the police had not even reasonable suspicion to believe Lucas was engaged in drug activity in the Scaife residence, it had no basis to search at all. As for the Leon exception, that only applies on the issuance of a judicial warrant, so Leon is inapplicable.

The opinion is detailed and definitely worth the read. It remains to be seen how often the Court will use the en banc status to reverse a unanimous panel decision on grounds not even raised to the panel.