J-S31015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

WARREN D. ANDERSON

Appellant No. 372 MDA 2015

Appeal from the Judgment of Sentence January 27, 2015

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0003367-2013

BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*

CONCURRING MEMORANDUM BY OTT, J.: FILED JULY 18, 2016

I join the majority decision in this matter but write separately to note 

additional reasoning supporting the decision.

The Majority cites Commonwealth v. Romero, ___ A.3d. ___, 2016 

PA Super 87 (Pa. Super. 2016) (filed 4/19/2016) for the proposition that 

where the authorities1 have a reasonable belief that the subject of an arrest 

warrant lives within a given premises, they can enter the home and arrest 

the suspect without a search warrant. However, that statement does not 

define “reasonable belief.” I believe we should clarify the rule and follow the 

guidance of the 3rd Circuit Court of Appeals in United States v. Vasquez-

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 The authorities in Romero were probation officers.
J-S31015-16

- 2 -

Algarin, ___ F.3d ___, 2016 WL 1730540 (3rd Cir.) (filed 5/2/2016) and 

define reasonable belief as probable cause.2 In Vasquez-Algarin, Judge 

Krause has provided a thorough history of the issue and the standard 

applied as well as sound reasoning why “reasonable belief” should be 

interpreted as probable cause. While I direct interested parties to the entire 

decision, I quote two passages.

Although the language of Payton and the Supreme Court's other 

Fourth Amendment decisions provides [sic] strong support for 

interpreting reasonable belief as a probable cause standard, it is 

the nature of the privacy interests at stake that solidifies our 

conclusion. Without question, the home takes pride of place in 

our constitutional jurisprudence. As the Supreme Court has 

reiterated on numerous occasions, “when it comes to the Fourth 

Amendment, the home is first among equals. At the 

Amendment's ‘very core’ stands ‘the right of a man to retreat 

into his own home and there be free from unreasonable 

governmental intrusion.’ ” Florida v. Jardines, ___ U.S. ___,

___, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013) (quoting 

Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 

5 L.Ed.2d 734 (1961)). Indeed, such intrusion is “the chief evil 

against which the wording of the Fourth Amendment is directed.” 

Payton, 445 U.S. at 585.

The vaunted place of the home in our constitutional privacy 

jurisprudence was central to the Supreme Court's analysis in 

____________________________________________

2

[I]t is well-settled that this Court is not bound by the decisions of federal

courts, other than the United States Supreme Court, or the decisions of 

other states' courts. We recognize that we are not bound by these cases; 

however, we may use them for guidance to the degree we find them useful 

and not incompatible with Pennsylvania law.

Commonwealth v. Reed, 107 A.3d 137, 143 (Pa. Super. 2014) (citations 

omitted).
J-S31015-16

- 3 -

Payton and Steagald. See, e.g., Payton, 445 U.S. at 585-90; 

Steagald, 451 U.S. at 220, 222. These cases together provide 

insight that neither case provides alone—insight that leads 

inexorably to the conclusion that the Circuit-created two-prong 

test is workable only if governed by a robust reasonableness 

standard akin to probable cause, and that anything less would 

defeat the “stringent ... protection” the home is due. United 

States v. Martinez-Fuerte, 428 U.S. 543, 561, 96 S.Ct. 3074, 

49 L.Ed.2d 1116 (1976) (private homes are “ordinarily afforded 

the most stringent Fourth Amendment protection”).

U.S. v. Vasquez-Algarin, ___ F.3d ___, at *8 -*9.3

Additionally, 

Given this precedent and the constitutional principles at stake, 

law enforcement armed with only an arrest warrant may not 

force entry into a home based on anything less than probable 

cause to believe an arrestee resides at and is then present within 

the residence. A laxer standard would effect an end-run around 

the stringent baseline protection established in Steagald and 

render all private homes—the most sacred of Fourth Amendment 

spaces—susceptible to search by dint of mere suspicion or 

uncorroborated information and without the benefit of any 

judicial determination. Such intrusions are “the chief evil against 

which the wording of the Fourth Amendment is directed.” 

Payton, 445 U.S. at 585. We therefore join those Courts of 

Appeals that have held that reasonable belief in the Payton

context “embodies the same standard of reasonableness 

inherent in probable cause.” Gorman, 314 F.3d at 1111; accord 

Barrera, 464 F.3d at 501.

Id. at 10.4

____________________________________________

3 Complete interior citations are: Payton v. New York, 445 U.S. 573, 100 

S.Ct. 1371, 63 L.Ed.2d 639 (1980); Steagald v. United States, 451 U.S. 

204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981).

4 Complete interior citations are: United States v. Gorman, 314 F.3d 1105 

(9th Cir. 2002); United States v. Barrera, 464 F.3d 496 (5th Cir. 2006).
J-S31015-16

- 4 -

In the instant matter, the record supports that the authorities, based 

on information contained in the “warrant packet” and independently 

developed at the scene, possessed probable cause to believe Ramos lived at 

2308 Orange Street. Further, they possessed probable cause, based upon 

the information that Ramos’s mode of transportation was a bicycle and a 

bicycle was found at the rear of 2308 Orange Street, that he was present at 

the time the authorities attempted to execute the arrest warrant. 

Accordingly, I believe that facts presented in this case meet the standard as 

set forth in United States v. Vasquez-Algarin, supra.

Judge Strassburger joins the concurring memorandum.