Last week a divided panel of the U.S. Court of Appeals for the Sixth Circuit handed down an interesting opinion in U.S. v. Hardin, concerning whether police may enter a residence to execute an arrest warrant need to have probable cause to believe the suspect is inside, or is "reason to believe" sufficient? In Payton v. New York (1980), the U.S. Supreme Court held that "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." In an opinion by Judge Moore (joined by Judge Cole), the court nonetheless concluded it was an "open question" in the Sixth Circuit whether a simple "reason to believe" was actually sufficient, or whether probable cause was actually required, and further concluded answering the question was unnecessary to exclude the evidence obtained from the search of the suspect's apartment. The court also concluded that an apartment manager becomes an agent of the government when asked to enter an apartment to verify the suspects.

Judge Batchelder wrote a vigorous and lengthy dissent, arguing there was no basis to exclude the evidence obtained from the suspect's apartment. Judge Batchelder argued that Circuit precedent clearly established that Payton only requires a "lesser reasonable belief standard" in such circumstances. Judge Batchelder further argued that consent for police to enter a residence can be obtained through deceptive means, and that it was wrong to treat assuming the apartment manager was an agent of the government when he went into Hardin's residence to confirm he was there should not invalidate the search.

I disagree with the majority's treatment of United States v. Pruitt, 458 F.3d 477, 482 (6th Cir. 2007). By ignoring Pruitt's clear reasoning and plain language, and instead conducting a de novo reconsideration of Pruitt's facts in an effort to satisfy its preferred (alternative) version of the law, the majority has effectively circumvented Pruitt's precedential effect. But, in doing so, the majority has also nullified Pruitt's holding (i.e., recast it as "dicta") and supplanted Pruitt's majority opinion with its concurring opinion. This is not the proper role for a panel of this court. Moreover, by authorizing this tactic, this opinion sets a troublesome precedent.

While I recognize that, under this new precedent, the possibility now exists that the analysis that follows might be resurrected by a future panel — i.e., some future panel could employ the majority's device and reconsider the decisions in this case (regarding the entry, the ruse, or the remedy), find that it prefers my view of these issues, and deem the majority's purported holdings unnecessary to the outcome and, hence, dicta — I take no comfort in such a possibility. With this opinion, the majority has untethered the law from its foundations and now allows for every decision to be ad hoc, limited only by the ingenuity of some future panel.