CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
Marshall, J., delivered the opinion of the Court, in which Brennan, Stewart, Blackmun, Powell, and Stevens, JJ., joined. Burger, C. J., concurred in the judgment. Rehnquist, J., filed a dissenting opinion, in which White, J., joined, post, p. 223.
JUSTICE MARSHALL delivered the opinion of the Court.
The issue in this case is whether, under the Fourth Amendment, a law enforcement officer may legally search for the subject of an arrest warrant in the home of a third party without first obtaining a search warrant. Concluding that a search warrant must be obtained absent exigent circumstances
or consent, we reverse the judgment of the United States Court of Appeals for the Fifth Circuit affirming petitioner's conviction.
In early January 1978, an agent of the Drug Enforcement Administration (DEA) was contacted in Detroit, Mich., by a confidential informant who suggested that he might be able to locate Ricky Lyons, a federal fugitive wanted on drug charges. On January 14, 1978, the informant called the agent again, and gave him a telephone number in the Atlanta, Ga., area where, according to the informant, Ricky Lyons could be reached during the next 24 hours. On January 16, 1978, the agent called fellow DEA Agent Kelly Goodowens in Atlanta and relayed the information he had obtained from the informant. Goodowens contacted Southern Bell Telephone Co., and secured the address corresponding to the telephone number obtained by the informant. Goodowens also discovered that Lyons was the subject of a 6-month-old arrest warrant.
Two days later, Goodowens and 11 other officers drove to the address supplied by the telephone company to search for Lyons. The officers observed two men standing outside the house to be searched. These men were Hoyt Gaultney and petitioner Gary Steagald. The officers approached with guns drawn, frisked both men, and, after demanding identification, determined that neither man was Lyons. Several agents proceeded to the house. Gaultney's wife answered the door, and informed the agents that she was alone in the house. She was told to place her hands against the wall and was guarded in that position while one agent searched the house. Ricky Lyons was not found, but during the search of the house the agent observed what he believed to be cocaine. Upon being informed of this discovery, Agent Goodowens sent an officer to obtain a search warrant and in the meantime conducted a second search of the house, which uncovered
additional incriminating evidence. During a third search conducted pursuant to a search warrant, the agents uncovered 43 pounds of cocaine. Petitioner was arrested and indicted on federal drug charges.
Prior to trial, petitioner moved to suppress all evidence uncovered during the various searches on the ground that it was illegally obtained because the agents had failed to secure a search warrant before entering the house. Agent Goodowens testified at the suppression hearing that there had been no "physical hinderance" preventing him from obtaining a search warrant and that he did not do so because he believed that the arrest warrant for Ricky Lyons was sufficient to justify the entry and search. The District Court agreed with this view, and denied the suppression motion. Petitioner was convicted, and renewed his challenge to the search in his appeal. A divided Court of Appeals for the Fifth Circuit affirmed the District Court's denial of petitioner's suppression motion. United States v. Gaultney, 606 F.2d 540 (1979).*fn1 Because the issue presented by this case is an important one*fn2 that has divided the Circuits,*fn3 we granted certiorari. 449 U.S. 819.
The Government initially seeks to avert our consideration of the Fifth Circuit's decision by suggesting that petitioner may, regardless of the merits of that decision, lack an expectation of privacy in the house sufficient to prevail on his Fourth Amendment claim. This argument was never raised by the Government in the courts below. Moreover, in its brief in opposition to certiorari the Government represented
to this Court that the house in question was "petitioner's residence" and was "occupied by petitioner, Gaultney, and Gaultney's wife." Brief in Opposition 1, 3. However, the Government now contends that the record does not clearly show that petitioner had a reasonable expectation of privacy in the house, and hence urges us to remand the case to the District Court for re-examination of this factual question.
We decline to follow the suggested disposition. Aside from arguing that a search warrant was not constitutionally required, the Government was initially entitled to defend against petitioner's charge of an unlawful search by asserting that petitioner lacked a reasonable expectation of privacy in the searched home, or that he consented to the search, or that exigent circumstances justified the entry. The Government, however, may lose its right to raise factual issues of this sort before this Court when it has made contrary assertions in the courts below, when it has acquiesced in contrary findings by those courts, or when it has failed to raise such questions in a timely fashion during the litigation.
We conclude that this is such a case. The Magistrate's report on petitioner's suppression motion, which was adopted by the District Court, characterized the issue as whether an arrest warrant was sufficient to justify the search of "the home of a third person" for the subject of the warrant. App. 12. The Government never sought to correct this characterization on appeal, and instead acquiesced in the District Court's view of petitioner's Fourth Amendment claim. Moreover, during both the trial and the appeal in this case the Government argued successfully that petitioner's connection with the searched home was sufficient to establish his constructive possession of the cocaine found in a suitcase in the closet of the house.*fn4 Moreover, the Court of Appeals concluded, as
had the Magistrate and the District Court, that petitioner's Fourth Amendment claim involved the type of warrant necessary to search "premises belonging to a third party." 606 F.2d, at 544. Again, the Government declined to disturb this characterization. When petitioner sought review in this Court, the Government could have filed a cross-petition for certiorari suggesting, as it does now, that the case be remanded to the District Court for further proceedings. Instead, the Government argued that further review was unnecessary. Finally, the Government in its opposition to certiorari expressly represented that the searched home was petitioner's residence.
Thus, during the course of these proceedings the Government has directly sought to connect petitioner with the house, has acquiesced in statements by the courts below characterizing the search as one of petitioner's residence, and has made similar concessions of its own. Now, two years after petitioner's trial, the Government seeks to return the case to the District Court for a re-examination of this factual issue.*fn5
The tactical advantages to the Government of this disposition are obvious, for if the Government prevailed on this claim upon a remand, it would be relieved of the task of defending the judgment of the Court of Appeals before this Court. We conclude, however, that the Government, through its assertions, concessions, and acquiescence, has lost its right to challenge petitioner's assertion that he possessed a legitimate expectation of privacy in the searched home. We therefore turn to the merits of petitioner's claim.
The question before us is a narrow one.*fn6 The search at issue here took place in the absence of consent or exigent circumstances. Except in such special situations, we have consistently held that the entry into a home to conduct a search or make an arrest is unreasonable under the Fourth Amendment unless done pursuant to a warrant. See Payton v. New Page 212} York, 445 U.S. 573 (1980); Johnson v. United States, 333 U.S. 10, 13-15 (1948). Thus, as we recently observed: "[In] terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Payton v. New York, supra, at 590. See Coolidge v. New Hampshire, 403 U.S. 443, 474-475, 477-478 (1971); Jones v. United States, 357 U.S. 493, 497-498 (1958); Agnello v. United States, 269 U.S. 20, 32-33 (1925). Here, of course, the agents had a warrant -- one authorizing the arrest of Ricky Lyons. However, the Fourth Amendment claim here is not being raised by Ricky Lyons. Instead, the challenge to the search is asserted by a person not named in the warrant who was convicted on the basis of evidence uncovered during a search ...