In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2295

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ERIC JACKSON,

Defendant-Appellant.

Appeal from the United States District Court

 for the Northern District of Illinois, Western Division.

No. 3:07-cr-50043-1—Philip G. Reinhard, Judge.

ARGUED MAY 11, 2009—DECIDED AUGUST 6, 2009

Before CUDAHY, POSNER, and KANNE, Circuit Judges.

CUDAHY, Circuit Judge. Eric Jackson was sentenced to

a 96 month term of imprisonment for possession of a

firearm by a previously-convicted felon. The gun that

was the basis of the possession charge was found on

Jackson’s person when the police executed an arrest

warrant for Jackson in an acquaintance’s apartment

where Jackson had been staying. On appeal, Jackson

challenges the denial of his motion to suppress the gun
2 No. 08-2295

and the imposition of an above-Guidelines sentence.

We affirm.

I. BACKGROUND

Eric Jackson was arrested by the Winnebago County

Sheriff’s Department based on an outstanding warrant

for aggravated battery. After unsuccessfully attempting

to locate Jackson at the residences of multiple relatives,

the police received an anonymous tip that Jackson had

been staying at his father’s girlfriend’s apartment on

1107 Elm Street and that he would be at that address

the next day—June 1, 2007—in the early morning.

The police arrived at the apartment at approximately

8:30 in the morning, and were invited into the vestibule

by LanDonna Joseph, the primary tenant. When the

officers showed Jackson’s picture to Joseph, she professed not to recognize him but the officers judged from

her body language that she was lying. Still without entering the apartment, the officers next showed Jackson’s

picture to Tyneesha Barbary, who was sitting nearby. (As

it happens, Barbary was Jackson’s girlfriend and was

pregnant with his child.) When the officers asked Barbary

if Jackson was in the apartment, she started to cry and

nodded her head. The officers subsequently entered the

apartment and followed Barbary to a back bedroom

where Jackson was sleeping with Barbary’s daughter.

After handcuffing Jackson, the officers searched the

immediate area and found a pistol within grabbing distance under the blanket on which he had been sleeping.
No. 08-2295 3

Because a suspect has no reasonable expectation of privacy 1

once an arrest warrant is issued, it is at least arguable that

Jackson would not have standing to challenge an illegal entry

into Joseph’s home. See, e.g., United States v. Kaylor, 877 F.2d 658,

663 n.4 (8th Cir. 1989); United States v. Buckner, 717 F.2d 297, 299-

300 (6th Cir. 1983). However, a leading treatise observes that if

(continued...)

Although he was initially arrested for aggravated

battery, Jackson was ultimately charged in federal court

with possession of a firearm by a previously-convicted

felon in violation of 18 U.S.C. § 922. The district court

denied Jackson’s motion to suppress the gun that was

seized during the arrest, finding that the search was

lawful because the police reasonably believed that Jackson

was within Joseph’s apartment when they entered. Following the court’s denial of his suppression motion, Jackson

pleaded guilty. The court calculated his sentencing range

as 37 to 46 months, but sentenced him to 96 months’

imprisonment, more than twice the top of his Guidelines

range. The court found that this sentence was necessary “to

stop you before you kill somebody or before you get

killed.”

II. DISCUSSION

A. Jackson’s Arrest

As a threshold matter, we reject Jackson’s argument

that the police needed a search warrant as well as an

arrest warrant in order to enter Joseph’s apartment in

order to arrest him. “[F]or Fourth Amendment purposes, 1
4 No. 08-2295

(...continued) 1

the arrestee himself lacks standing to challenge an illegal search,

then this would “render the Steagald rule a virtual nullity.”

6 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth

Amendment § 11.3 (4th ed. 2008). Not surprisingly, therefore,

the prevailing view appears to be that a suspect retains a

sufficient expectation of privacy to challenge a search where

the police lack a reasonable belief that the person to be

arrested may be found in the place to be searched. See, e.g.,

United States v. Boyd 180 F.3d 967, 977-78 (8th Cir. 1999);

Valdez v. McPheters, 172 F.3d 1220, 1225-26 (10th Cir. 1999);

United States v. Edmonds, 52 F.3d 1236, 1247-48 (3d Cir. 1995).

an arrest warrant founded on probable cause implicitly

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.” Payton v. New York, 445

U.S. 573, 602 (1980). Of course, the warrant application

process does not protect the Fourth Amendment

interests of third parties. Thus, if officers enter a

third party’s residence in order to effect an arrest, the

third party herself may have a Fourth Amendment claim

against the officers. This is the holding of United States

v. Steagald, 451 U.S. 204 (1981). However, in Steagald, the

court was quite explicit that “the narrow issue before [the

Court was] whether an arrest warrant—as opposed to a

search warrant—is adequate to protect the Fourth Amendment interests of persons not named in the warrant.” Id. at

212 (emphasis added). Because it addresses only the

Fourth Amendment rights of persons not named in an

arrest warrant, Steagald did not hold that the subject of an
No. 08-2295 5

In United States v. Weems, 322 F.3d 18, 23 (1st Cir. 2003), the 2

First Circuit suggested that absent consent or exigent circumstances, police do require a search warrant as well as an

arrest warrant to arrest a suspect in a third party’s home.

However, the panel in Weems also broadens the exigent circumstances exception to the warrant requirement, suggesting

that an officer’s reasonable belief that an arrestee is inside

another’s home can constitute exigent circumstances and thus

justify a warrantless entry. Id. Thus, it appears that there is no

practical difference between the First Circuit’s understanding

of Steagald—according to which reasonable belief that a suspect

is within a third party’s home can constitute exigent circumstances—and that of the other circuits—according to which

a separate search warrant is not required.

arrest warrant has a higher expectation of privacy in

another person’s residence than he does in his own. E.g.,

United States v. Underwood, 717 F.2d 482, 483-84 (9th Cir.

1983) (en banc). Further, nearly every court of appeals to

consider the issue has held that law enforcement

officers do not need a search warrant in addition to an

arrest warrant to enter a third party’s residence in order

to effect an arrest. See United States v. Agnew, 407 F.3d 193,

197 (3d Cir. 2005); United States v. Kaylor, 877 F.2d 658, 663

(8th Cir. 1989); Underwood, 717 F.2d at 483-84 (9th Cir.

1983); United States v. Buckner, 717 F.2d 297, 299-300 (6th

Cir. 1983).2

Jackson argues that there is no difference between

searching a person’s home for evidence and searching

for a person. This argument conflates the resident’s

Fourth Amendment interest with that of the arrestee. If

officers unlawfully enter a person’s home, then that
6 No. 08-2295

The D.C. Circuit has put the count at six, including the Fifth, 3

Eighth and Eleventh Circuits among the courts of appeals to

hold that “reasonable belief” requires less than probable cause.

Thomas, 172 F.3d at 286. However, the relevant cases from these

(continued...)

person may have a civil claim for damages against the

officers. If the officers uncover evidence that the resident committed a crime, then the evidence may be suppressed. But again, it would be anomalous if the subject

of an arrest warrant had a greater expectation of privacy

in another person’s home than he had in his own.

Although officers do not need a search warrant to

execute an arrest warrant in a third party’s home, they

do need some basis for believing that the suspect is

actually present in the home. This court has not

addressed what degree of suspicion officers need in

order to enter a third party’s home to execute an arrest

warrant. In Payton, the Supreme Court held that an arrest

warrant “carries with it the limited authority to enter a

dwelling when there is reason to believe the suspect is

within.” 445 U.S. at 602 (emphasis added).

Our sister circuits disagree about what “reasonable

belief” actually entails and whether its meaning is different from probable cause. By our count, three circuits

have explicitly concluded that reasonable belief requires

a lesser degree of knowledge than probable cause. See

United States v. Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005);

Valdez v. McPheters, 172 F.3d 1220, 1227 n.5 (10th Cir. 1999);

United States v. Lauter, 57 F.3d 212, 215 (2d Cir. 1995). The 3
No. 08-2295 7

(...continued)

other circuits simply apply the “reasonable belief” standard

without deciding the degree of suspicion that the standard

requires.

Although the above-cited cases state that “reasonable belief” 4

is satisfied by something short of probable cause, in all but one

of these cases, the courts found that the officers’ degree of

suspicion satisfied the higher, probable cause standard. See,

e.g., Lauter, 57 F.3d at 215. The D.C. Circuit’s Thomas decision

was the only case that we have found where a court upheld a

search of a third party’s residence based on something less

than probable cause. Thus, it is at least arguable that the

discussion of “reasonable belief” in the other cases was dicta.

courts in these cases conclude that the Supreme Court

“used a phrase other than ‘probable cause’ because it

meant something other than ‘probable cause.’ ” Thomas,

429 F.3d at 286.4

Four other circuits have disagreed, holding that “reasonable belief” amounts to the same thing as “probable cause.”

See United States v. Hardin, 539 F.3d 404, 416 n.6 (6th Cir.

2008); United States v. Barrera, 464 F.3d 496, 501 (5th Cir.

2006); United States v. Gorman, 314 F.3d 1105, 1111 (9th Cir.

2002); United States v. Magluta, 44 F.3d 1530, 1535 (11th

Cir. 1995). As Judge Clay explained in a concurring opinion, the Supreme Court tends to use phrases like “reasonable grounds for belief” as “grammatical analogue[s]”

for probable cause. United States v. Pruitt, 458 F.3d 477, 490

(6th Cir. 2006) (Clay, J., concurring) (citing cases). To wit,

in Maryland v. Pringle, 540 U.S. 366 (2003), the Court

appears to use “reasonable belief” to define probable
8 No. 08-2295

cause. Id. at 371 (“[T]he substance of all the definitions of

probable cause is a reasonable ground for belief of guilt.”).

Were we to reach the issue, we might be inclined to

adopt the view of the narrow majority of our sister

circuits that “reasonable belief” is synonymous with

probable cause. However, we need not decide whether

“reasonable belief” requires probable cause or something

less than probable cause because in the present case the

police had enough evidence to easily satisfy a probable

cause standard. The police received a tip that Jackson

was staying at Joseph’s apartment and that he would be

there the following morning. When the police arrived at

the apartment, they asked Jackson’s girlfriend if Jackson

was inside and she nodded yes and started crying. This

was more than enough to lead a prudent person to

believe that Jackson was inside the apartment when he or

she entered. See Jones v. Webb, 45 F.3d 178, 181 (7th Cir.

1995) (defining probable cause as existing when the

facts and circumstances within a police officer’s knowledge are sufficient to warrant a prudent person in such

a belief). Thus, we need not decide whether “reasonable

belief” can constitute less than probable cause; the

police clearly had probable cause in this case.

B. Jackson’s Sentence

Jackson also argues that his sentence was unreasonable.

The district court imposed a 96 month sentence, which

was more than twice the high end of Jackson’s Guidelines range. We review the reasonableness of Jackson’s

sentence for abuse of discretion. Gall v. United States, 128
No. 08-2295 9

Jackson makes a great deal of the fact that Barbary testified

5

that she saw Jackson with two different guns, but that the

district court apparently misunderstood her testimony and

assumed she was referring throughout to the same gun. We

agree with the government that the district court’s confusion

was harmless error.

S. Ct. 586, 591 (2007); United States v. Jackson, 547 F.3d

786, 792 (7th Cir. 2008). No presumption of unreasonableness attaches to a sentence simply because it falls

outside the Guidelines range. Gall, 128 S. Ct. at 595.

The principal basis for the enhanced sentence was

the court’s conclusion that Jackson was dangerous and

incorrigible, explaining that a higher than Guidelines

sentence was needed “to stop you [Jackson] before you

kill somebody or before you get killed.” This conclusion,

in turn, was based primarily on the court’s finding that

Jackson had used the gun he was convicted of possessing

to shoot someone. Recall that although Jackson was

ultimately charged with possession of a firearm by a

convicted felon, he was arrested pursuant to an arrest

warrant for aggravated battery. Roughly two months

before his arrest, Jackson was alleged to have shot a man

who had apparently made romantic overtures toward

his girlfriend, Tyneesha Barbary. An officer witnessed

Jackson flee the scene with his hand in his waistband as

if he were concealing a gun. Barbary later gave a sworn

statement that Jackson was the shooter.5 And the victim

himself identified Jackson as the shooter.

In addition to the evidence that Jackson had used the

gun he was charged with possessing to shoot his romantic
10 No. 08-2295

rival, the district court also noted that Jackson had been

convicted of weapons possession on multiple occasions,

that he had actually shot people on at least two other

occasions and that he had not adjusted well to parole.

Further, while Jackson argues that the district court

impermissibly focused on charges that were dropped or

dismissed, this is an overstatement: Jackson has been

convicted of multiple violent crimes.

In short, it was not unreasonable for the court to conclude that Jackson is a menace, and therefore that an

above-Guidelines sentence was needed to deter further

criminal activity. The judgment of conviction and sentence are

AFFIRMED.

8-6-09