Richard Miller; Tonya Crawley v. City of Philadelphia

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 24-3191
_______________
RICHARD MILLER; TONYA CRAWLEY,
Appellants
v.
CITY OF PHILADELPHIA; DETECTIVE BOVA;
DETECTIVE LUCKE; DETECTIVE CRAIG COULTER;
DETECTIVE GRACE; SWAT OFFICER LT. MONK;
SWAT OFFICER SGT. MELLODY; SWAT OFFICER
OLDRATI; SWAT OFFICER HOUGH; SWAT OFFICER
CLARK; SWAT OFFICER HAMOY; SWAT OFFICER
RECHNER; SWAT OFFICER FITZPATRICK; SWAT
OFFICER BURKITT; SWAT OFFICER SABA; POLICE
OFFICERS JOHN DOES 1–10
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:23-cv-04762)
District Judge: Honorable Paul S. Diamond
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
on October 31, 2025

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Before: BIBAS, SCIRICA, and SMITH, Circuit Judges
(Filed: December 15, 2025)
Alan E. Denenberg
Jason Parris
ABRAMSON & DENENBERG
1315 Walnut Street, Suite 500
Philadelphia, PA 19107
Counsel for Appellants
Catherine Baldwin
Craig R. Gottlieb
CITY OF PHILADELPHIA LAW DEPARTMENT
1515 Arch Street
Philadelphia, PA 19102
Counsel for Appellees
_______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
To err is human; police are no exception. Early one morn-
ing, Philadelphia police burst into a house to arrest a suspect in
a drive-by shooting investigation. But they had the wrong
house. Even so, they had probable cause to think their suspect
was there. And no one alleges that the City was aware of a pat-
tern of police officers unconstitutionally entering homes. So
the District Court properly granted summary judgment for the
police officers and dismissed the municipal-liability claim.

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I. THE ARREST WARRANT GONE WRONG
In late 2021, while walking to school, a fourteen-year-old
boy was “brutally executed” in Philadelphia, shot more than
thirty times by two carloads of people. JA 365. Police soon
identified five suspects, including T.C., and got an arrest war-
rant for him. T.C. was eighteen at the time.
With the warrant in hand, Detective Craig Coulter started
trying to find T.C. He searched three databases. One was
CLEAR, which “cross-references utility bills, taxes, credit
reports, and the like.” JA 402. The other two were a police arrest
database and a police criminal-history database. CLEAR listed
several addresses for T.C. The most recent entry pointed to
4838 Stenton Avenue, a rowhouse in Philadelphia’s German-
town neighborhood. The arrest and criminal-history databases
also listed that as his address, based on a 2017 arrest. A search
for T.C.’s mother in CLEAR yielded the same address.
Satisfied that T.C. lived at 4838 Stenton Avenue, Coulter
and a colleague, Detective Richard Bova, prepared to execute
the warrant. One morning, just before 6 a.m., SWAT officers
arrived at that address and broke down the front door. But T.C.
was not there. Instead, officers found Richard Miller and Tonya
Crawley, who had moved into the house two years earlier. Rifles
in hand, the officers ordered Miller and Crawley to go down-
stairs. They did not let Miller get his cane, though he struggles
to walk. When Crawley asked why the officers were there, one
barked: “Shut the f*** up.” JA 11, 126–27.
While some officers searched the residence, others inter-
viewed Miller and Crawley, learning that they did not know
T.C. and that he no longer lived there. Soon after, the police

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left. Officers later found T.C. and cleared him of any wrong-
doing.
Miller and Crawley were understandably upset at how they
had been treated. So the couple sued the detectives, the SWAT
officers, and the City of Philadelphia under 42 U.S.C. § 1983.
They claimed that the officers had lacked probable cause and
so violated the Fourth Amendment, and that the City had failed
to train or supervise its officers on how to apply for and execute
warrants properly.
The District Court dismissed the municipal-liability count
for failure to state a claim. It later granted summary judgment
on the unlawful-entry claim, holding as a matter of law that the
officers had probable cause to enter the house.
We review the District Court’s dismissal and summary
judgment de novo. Vorchheimer v. Philadelphian Owners
Ass’n, 903 F.3d 100, 105 (3d Cir. 2018); Tundo v. Cnty. of Pas-
saic, 923 F.3d 283, 286–87 (3d Cir. 2019).
II. SUMMARY JUDGMENT FOR THE OFFICERS WAS PROPER
A. The District Court mistakenly relied on good-faith cases
In finding probable cause, the District Court appeared to
suggest that the good-faith rule could help establish the exist-
ence of probable cause. See JA 409 (“[P]robable cause existed
on which to base the arrest warrant. … Officers plainly obtained
and executed the warrant in good faith.”); see also JA 407
(“Even if the underlying information is incorrect, the good-
faith exception will apply unless a ‘reasonably well-trained
officer would have known the search was illegal’ despite the
warrant.”) (quoting United States v. Leon, 468 U.S. 897, 922

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n.24 (1984)). But those two things are distinct. The good-faith
exception to the exclusionary rule says that even if an officer has
violated the Fourth Amendment, courts will not exclude the
resulting evidence from criminal cases unless there is “sys-
temic negligence” or the officer acted “deliberate[ly], reck-
less[ly], or grossly negligent[ly].” Herring v. United States,
555 U.S. 135, 144 (2009). That issue is separate from whether
an officer had probable cause in the first place. So the District
Court erred by relying in part on the good-faith exception.
B. The error was harmless, because the officers had
probable cause
Even so, the District Court’s error made no difference.
Under Payton v. New York, an officer may enter a home to ex-
ecute an arrest warrant if he has probable cause to believe that
(1) the arrestee lives there and (2) he is present then. 445 U.S.
573, 603 (1980); United States v. Vasquez-Algarin, 821 F.3d
467, 472, 477 (3d Cir. 2016). An officer need not be certain or
take every possible step to corroborate his information. It is
enough to have “reasonably trustworthy information” that
would lead a “reasonabl[y] cautio[us]” officer to conclude,
given all the circumstances, that the arrestee is at that address.
See United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2002).
Though probable cause is typically a jury question, a judge
may find it as a matter of law if the evidence would not reason-
ably support any other finding. Sherwood v. Mulvihill, 113
F.3d 396, 401 (3d Cir. 1997).
1. The officers had probable cause to believe that T.C. lived
at 4838 Stenton Avenue. The officers satisfied the first Payton
prong. They did not just rest on unproven informants or take a

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detective’s word for it. Cf. Vasquez-Algarin, 821 F.3d at 480–
81 (holding those bases insufficient on their own to show prob-
able cause). Rather, Coulter relied on three reasonably trust-
worthy sources, all of which pointed to the Stenton Avenue ad-
dress. One was CLEAR, which pulls information from taxes,
credit reports, utility bills, and the like. Coulter then checked
the CLEAR data against the arrest and criminal-
history databases for T.C., as well as the CLEAR data for his
mother. That was enough. Cf. United States v. King, 604 F.3d
125, 131, 137–38 (3d Cir. 2010) (finding probable cause based
on officers’ tracing defendant’s phone number to the address).
The couple resists that conclusion in three ways, but all fall
short. First, they assert that the officers “were unable to testify
as to the reliability of CLEAR’s records.” Appellants’ Br. 20.
Not so. Coulter gave unrebutted testimony that CLEAR was
accurate “[m]ore times than not,” and Bova testified similarly
that it was “pretty accurate.” JA 223, 370. Second, the couple
complains that the address that T.C. self-reported when arrested
in 2017 was too stale to support probable cause. But the offic-
ers corroborated that address using CLEAR, which said T.C.
still lived there. Third, the couple argues that the officers could
have sought more corroboration. But they had good reasons not
to. Bova testified that a minor is unlikely to have a registered
car and cannot vote, so it made little sense to check voter rolls
or motor-vehicle records. He also explained that asking friends
and family could have alerted T.C. that police were looking for
him. Plus, once officers have probable cause, they need not
“undertake an exhaustive investigation” or “interview every-
one who may have possessed relevant information.” Merkle v.
Upper Dublin Sch. Dist., 211 F.3d 782, 790 n.8 (3d Cir. 2000)

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(first quotation); Trabal v. Wells Fargo Armored Serv. Corp.,
269 F.3d 243, 250–51 (3d Cir. 2001) (second quotation) (empha-
sis omitted).
2. The officers also had probable cause to believe that they
would find T.C. at home on a Thursday morning at 5:50 a.m.
The officers satisfied the second Payton prong as well. “[O]nce
the predicate of residency is established, that alone carries sig-
nificant weight in establishing probable cause to believe the
arrestee is present.” Vasquez-Algarin, 821 F.3d at 481. Even
so, courts must scrutinize, case by case, whether “other indicia
support[ed] [law enforcement’s] belief that the suspect [was]
then inside.” Id.
Here, the police knew that T.C. was around high-school
age. Maybe he was in school, back a grade; maybe he worked
during the day. Either way, police reasonably inferred that T.C.
(unlike, say, a suspect known to work as a night watchman)
was probably at home at the crack of dawn, well before the
start of school or most people’s workdays. See United States v.
Veal, 453 F.3d 164, 168 (3d Cir. 2006) (noting that “it [is] rea-
sonable to expect that residents or guests would still be pre-
sent” “early in the morning” and collecting cases); 3 Wayne R.
LaFave, Search and Seizure § 6.1(a) (6th ed. 2020) (“[T]he
police need not possess ‘special knowledge’ that the defendant
is at home in order to meet the probable cause test, for in the
absence of facts tending to show that the defendant is not at
home it is reasonable to infer that he would be there.”). Our
dissenting colleague, relying on extra-record sources about
when some students commute to high school, doubts that assess-
ment. See Partial Dissent 6–7. But probable cause demands
only “reasonable grounds” for a belief, not perfection. Illinois

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v. Gates, 462 U.S. 213, 243 (1983); see also Vasquez-Algarin,
821 F.3d at 475. And even our colleague admits that “[s]ome
(maybe even most) members of [the high-school] cohort will
be home at 5:50 a.m. on a typical Thursday.” Partial Dissent 6.
The officers’ inference was reasonable.
Our dissenting colleague would hold that even once police
have probable cause to believe that a suspect lives at an address,
they must also have case-specific evidence to show that the
suspect will be home precisely when they execute the warrant.
Partial Dissent 7–8. Our colleague would put that burden on law
enforcement in every case, even if the underlying crime is seri-
ous, and even if the extra investigation could tip a suspect off
that police are on his tail. But as the District Court noted, “the
initial arrest [in a murder investigation] requires ‘speed and
surprise,’”; asking around the neighborhood for a suspect’s
whereabouts, or surveilling the street for a long time, “could
well alert a suspect and endanger the officers.” App. 16.
Our precedents do not support our dissenting colleague’s
restrictive, bright-line rule. In Vasquez-Algarin, for example,
we concluded that the officers had flunked both prongs of Pay-
ton. 821 F.3d at 481. The lack of probable cause to believe the
suspect resided at the address the officers searched, we explained,
doomed any probable cause to think that he was there when
they executed the warrant. Id. at 482. That analysis has no bear-
ing here, where even our colleague agrees that the officers had
probable cause to believe that T.C. lived at 4838 Stenton Ave-
nue. See Partial Dissent 1. Our colleague’s out-of-circuit cita-
tions fare no better. Those cases merely state the com-
monsense requirement that police need to have particularized
information about a suspect. See id. at 4 (citing United States

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v. Pruitt, 458 F.3d 477, 483 (6th Cir. 2006) and Valdez v.
McPheters, 172 F.3d 1220, 1230–31 (10th Cir. 1999) (Ebel, J.,
concurring in part and dissenting in part)). Here, the officers
did: They had (what they reasonably believed was) T.C.’s
address, knew that he was eighteen, and reasonably inferred
that he was likely to be home early in the morning on a weekday.
At bottom, our colleague’s approach would defy longstand-
ing case law treating probable cause as a “flexible, common-
sense standard.” Gates, 462 U.S. at 239; see also United States
v. Diaz, 491 F.3d 1074, 1078 (9th Cir. 2007) (rejecting the
view that “reasonable belief cannot exist unless the govern-
ment has some specific evidence that the suspect is present at
the particular times that officers come to arrest him”). Neither
the Fourth Amendment nor our precedent requires our col-
league’s wooden approach, and we respectfully decline to
adopt it.
To be clear, we do not hold that the time of day, standing
alone, is always enough to amount to probable cause that a sus-
pect is at home. We simply hold that here, the very early hour,
coupled with officers’ knowledge of T.C.’s age and probable
cause as to his address, gave the police probable cause to believe
that T.C. was at home when they went to execute his arrest
warrant. Since the officers had probable cause as a matter of
law, the District Court properly granted them summary judg-
ment on the couple’s unlawful-entry claim.
III. DISMISSAL OF THE MUNICIPAL-LIABILITY CLAIM
WAS PROPER TOO
The couple’s claim against Philadelphia fares no better.
They allege that the City failed to train and supervise its police

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on how to dig up trustworthy address information before get-
ting and executing arrest warrants. A city’s failure to train or
supervise its officers can make it liable only when that failure
“amounts to deliberate indifference to the rights of persons
with whom the [officers] come into contact.” City of Canton v.
Harris, 489 U.S. 378, 388 (1989); Forrest v. Parry, 930 F.3d
93, 106 (3d Cir. 2019).
There are two ways to show deliberate indifference, but the
amended complaint does not adequately allege either of them.
First, a plaintiff must “ordinarily” allege a “pattern of similar
constitutional violations by untrained [or unsupervised] employ-
ees” that put the city on notice. Connick v. Thompson, 563 U.S.
51, 62 (2011) (internal quotation marks omitted). But as the
District Court found, the amended complaint lacks facts that
would have put the City on notice of a pattern of inadequately
investigating addresses. Instead, it teems with legal conclu-
sions. Those “[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suf-
fice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
True, one paragraph in the amended complaint does list ten
cases in which Bova is being sued. But it says nothing more
than that. As the District Court observed, it “do[es] not allege
whether those cases involved similar unlawful conduct or if
policymakers were aware of such conduct.” JA 82. Those
omissions are fatal to municipal liability based on a pattern.
Second, in unusual cases, a plaintiff can show a city’s delib-
erate indifference even without a pattern of prior constitutional
violations. See Canton, 489 U.S. at 390 n.10; Connick, 563
U.S. at 63–64. But single-incident municipal liability is

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vanishingly rare. Hightower v. City of Phila., 130 F.4th 352,
357 (3d Cir. 2025). It requires something like giving guns to
the police without training them on when they may shoot flee-
ing felons. See Canton, 489 U.S. at 390 n.10. “Not even failing
to train prosecutors on their … disclosure duties [under Brady
v. Maryland, 373 U.S. 83, 87 (1963)] is enough.” Hightower,
130 F.4th at 357 (citing Connick, 563 U.S. at 64). Nothing here
rises to that extreme level. So the District Court properly dis-
missed the municipal-liability claim.
* * * * *
Miller and Crawley were understandably shaken when police
burst into their bedroom before 6 a.m. to arrest someone who
no longer lived there. “But a mistake, though it may be terrible
in its effects, is not always … a constitutional violation.”
Curley v. Klem, 499 F.3d 199, 216 (3d Cir. 2007). Because the
officers had probable cause to believe that T.C. still lived at
4838 Stenton Avenue and would be home at that hour, we will
affirm the District Court’s summary judgment on the unlawful-
entry claim. And because there was no pattern of constitutional
violations that would have put the City on notice of a problem,
we will affirm the District Court’s dismissal of the municipal-
liability claim.

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Miller v. City of Philadelphia, No. 24-3191
Smith, Circuit Judge, concurring in part and dissenting in
part.
Not always faithful to reality in its depiction of
American litigation and courtroom procedure, classic cinema
does authentically uphold one principle of American
jurisprudence: “There’s no place like home.” Our
constitutional law reifies this incantation: “[W]hen it comes to
the Fourth Amendment, the home is first among equals.”
Florida v. Jardines, 569 U.S. 1, 6 (2013). The threshold of even
the humblest abode is a Rubicon, and to carelessly cross it is to
commit “the chief evil” our Constitution guards against. United
States v. U.S. District Court, 407 U.S. 297, 313 (1972). For this
reason, to execute an arrest warrant at a suspect’s home, police
must establish probable cause to believe that the arrestee (1)
resides at the dwelling; and (2) will be present at the time they
enter the premises. See United States v. Vasquez-Algarin, 821
F.3d 467, 472 (3d Cir. 2016) (citing Payton v. New York, 445
U.S. 573 (1980)).
The majority and I agree that the police in this case
satisfied the first prong. We also concur on the basic, operative
facts upon which we resolve the issues presented. To quote:
“Early one morning, Philadelphia police burst into a house to
arrest a suspect in a drive-by shooting. But they had the wrong
house.” Majority Op. at 2. But the majority opinion goes on to
declare: “Even so, they had probable cause to think their
suspect was there.” Id. I agree that the police had probable
cause to believe their suspect had resided at the residence they
forcibly entered but not that he “was there” at the time they
executed the arrest warrant. This is more than a syntactical

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quibble (i.e., “was there” (past) versus “had been there” (past
perfect)). Tense, in this case, has serious constitutional
implications. Unlike the majority, I am not convinced that
probable cause to believe a suspect had resided in a dwelling,
plus a mere generalization about what time of day people are
usually at home is sufficient to establish probable cause to
believe the suspect was present when police entered the
residence. Accordingly, I dissent.1
I
There is no rigid definition of probable cause. See
Illinois v. Gates, 462 U.S. 213, 232 (1983) (explaining that
probable cause is “not readily, or even usefully, reduced to a
neat set of legal rules”). It is a “fluid concept” that exists
“where the known facts and circumstances are sufficient to
warrant a man of reasonable prudence in [his] belief[.]”
Ornelas v. United States, 517 U.S. 690, 696 (1996). That means
that what suffices in one case may prove inadequate in another,
and vice versa. But mutability does not imply limitlessness.
There are bounds even to reasonableness beyond which law
enforcement’s justifications are categorically unacceptable. As
I see it, the police leapt to the conclusion that, because they had
reason to believe their suspect was a resident of 4838 Stenton
Avenue, they also had probable cause to believe that he would
1 I join the majority in Part II.A., explaining that the District
Court erred by relying on the good-faith exception to justify
probable cause, and Part III, affirming the District Court’s
dismissal of Appellants’ municipal liability claim.

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be present when they forced their way into the residence. In
that supposition, they crossed the bounds of reasonableness.
On December 1, 2021, Philadelphia police sought and
obtained an arrest warrant for an 18-year-old murder suspect,
T.C.,2 who officers reasonably believed resided at 4838 Stenton
Avenue. The Philadelphia Special Weapons and Tactics team
(SWAT) executed the warrant the following morning,
Thursday, December 2. At 5:50 a.m., they smashed through the
door of the home only to discover that their quarry was not
around. Instead, they encountered two frightened occupants,
Richard Miller and Tonya Crawley who, after questioning,
confirmed that T.C. no longer resided there. Miller and
Crawley later sued under 42 U.S.C. § 1983, alleging, as
relevant here, that the entry into their home violated the Fourth
Amendment. The District Court disagreed. It granted summary
judgment to defendants, holding that they had established
probable cause to believe both that T.C. resided at 4838 Stenton
Avenue and that he would be present when SWAT forced their
way into the home. The Court staked its latter conclusion solely
on the time of day—“5:50 a.m., a time when a resident is likely
to be home.” JA407. That appears to satisfy the majority. For
me, it falls short.
II
The two-prong Payton test requires probable cause of
both residency and presence. See Vasquez-Algarin, 821 F.3d at
472. These are not isolated concepts but rather biographical
and temporal components, respectively, of a singular inquiry—
2 Police suspected T.C. had committed the gruesome murder of
a 14-year-old. The cruel irony here is that he was later cleared.

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whether the subject of an arrest warrant is likely to be at a
particular place at a particular time. The prongs, therefore,
operate in a certain synergy. “[T]he predicate of residency . . .
alone carries significant weight in establishing probable cause
to believe the arrestee is present, necessarily reducing the
quantum of proof needed to meet [the] second prong in the
totality of the circumstances analysis.” Id. at 481. But
“[u]ltimately, . . . that analysis must be made on a case-by-case
basis, accounting not only for the fact that there is an increased
likelihood the arrestee will be found in his own home but also
for other indicia supporting law enforcement’s belief that the
suspect is then inside.” Id. (emphasis added) (collecting cases).
I agree that time of day bears on the likelihood of a
subject’s presence. But as the sole indicium of the likelihood
of presence at a particular time and place, it seems—at least in
this case—more sociology than individual case study. It
presumes conformity to custom but never subjects that
presumption to the kind of particularized scrutiny that probable
cause demands. See Maryland v. Pringle, 540 U.S. 366, 371
(2003) (stating that “probable cause is a reasonable ground for
belief of guilt” and that “belief of guilt must be particularized
with respect to the person to be searched or seized”) (emphasis
added); see Vasquez-Algarin, 821 F.3d at 476 (“[T]he Supreme
Court uses the ‘probable cause’ standard almost exclusively to
assess the basis and strength of an officer or magistrate’s belief
that a particular person has committed a particular crime or
that an article subject to seizure can be found at a particular
location[.]”) (emphasis added). Caselaw across the circuits
implicitly affirms the principle that evidence of how people
behave in the aggregate is no substitute for evidence of the
habits and proclivities of a specific individual. See United

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States v. Hardin, 539, F.3d 404, 421-24 (6th Cir. 2008)
(collecting cases); see also Vasquez-Algarin, 821 F.3d at 482
(requiring more than “generic evidence”); United States v.
Pruitt, 458 F.3d 477, 483 (6th Cir. 2006) (requiring an
investigation of the suspect’s background information); Valdez
v. McPheters, 172 F.3d 1220, 1230-31 (10th Cir. 1999) (Ebel,
J., concurring in part and dissenting in part) (“[O]fficers must
possess some specific facts that indicate a suspect will be found
within his or her home at the time, on the day the officers
decide to search[.]”). So generalizations drawn from
population-level data are, by themselves, almost always
insufficient to satisfy Payton’s second prong. Law enforcement
must, at the very least, supply some reason to suspect
adherence to a prevailing practice. As the Sixth Circuit has
observed, this often involves: “recent, eyewitness evidence
connecting the suspect to the residence” and/or “conduct by the
suspect that demonstrates a tie to the residence.” Hardin, 539
F.3d at 421; see Vasquez-Algarin, 821 F.3d at 481 (requiring
“other indicia supporting law enforcement’s belief that the
suspect is then inside”).
In the instant case, officers had neither. They tendered
only the impersonal assumption that most people are usually
home at 5:50 a.m. If that is enough to establish probable cause,
then law enforcement’s investigative work reduces to a
collection of crude statistical inferences. And the police have
no incentive to undertake individual assessments because
generalizations here get a foot in the door (quite literally).3 We
3 Remarkably, the majority explicitly sanctions this perverse
incentive, crediting the “reasonableness” of law enforcement’s
inference that T.C. would be home at the “crack of dawn”

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have before us a quintessential example of the dangers that
endorsing such a paradigm entails.
As of December 2, 2021, T.C. was 18, high-school age.
Some (maybe even most) members of that cohort will be home
at 5:50 a.m. on a typical Thursday. But there will be numerous
exceptions. Student athletes frequently leave the house in the
early morning. See Chris Stankovich, Morning Sports Practice
Before School is Becoming the Norm, but is This Healthy for
Kids?, THE SPORTS DOC CHALK TALK (Mar. 20, 2023),
https://drstankovich.com/morning-sports-practice-before-
school-is-becoming-the-norm-but-is-this-healthy-for-kids/
(“The majority of student athletes I see these days regularly
wake up well before 6AM in order to get to school so that they
can practice and/or lift with their team[.]”); Jon Solomon,
Practice in Mornings Can Grow High School Sports Access,
PROJECT PLAY (Sept. 28, 2021),
https://projectplay.org/news/small-urban-public-high-schools
(profiling a student at Philadelphia’s Science Leadership
Academy who “woke up by 5:30 [a.m.]” many mornings to
attend her high school basketball practices). A recent study
found that Philadelphia area high school students “need to
leave home” anywhere from “6:00am to 8:45am” just “to get
because he was not “known to work as a night watchman.”
Majority Op. at 7. Of course, he wasn’t known to work as
anything because police made no effort to investigate his
personal background. Under the majority’s view, this
deliberate ignorance is a key to the front door. But if a lack of
knowledge is enough to sustain an inference, then any
inference the police make is reasonable so long as they
studiously avoid facts that might undermine it.

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to school on time.” That suggests that students who want to
accomplish anything prior to the first bell will sometimes have
to depart prior to 5:50 a.m. Molly Pileggi, et al., How Long
Does It Take Philadelphia High Schoolers to Get to School?
Transit Times to School District of Philadelphia High Schools
in 2018, PHILADELPHIA EDUCATION RESEARCH CONSORTIUM,
at iii (Aug. 2020), https://phledresearch.org/wp-
content/uploads/2020/08/PERC-
HowLongDoesItTakePhiladelphiaHighSchoolerstoGettoScho
ol.pdf (average commute times for different schools range
from 16 to 70.5 minutes). And as an 18-year-old, T.C. also
could have been a high school dropout, college student,
member of the workforce,4 or some combination of the three,
each permutation likely to inform his probable whereabouts.
Had police considered any of this, they may not have
conducted their raid when they did. As we recognized when
first applying the probable cause standard to Payton, “[o]ur
choice about how much and what kind of information” law
enforcement needs “affects not only the homes of arrestees but
also any home that could be mistaken for one.” Vasquez-
Algarin, 821 F.3d at 473 (emphasis added). We struck a balance
between “respect for the sanctity of the home that has been
embedded in our traditions since the origins of the Republic,”
Payton, 445 U.S. at 601, and the practical realities of policing,
4 The majority enumerates these possibilities but fails to reckon
with what they demonstrate. Namely, that law enforcement
performed no individualized inquiry into T.C. Police did not
even “check [his] school records,” JA333, so they knew only
that he was of “high-school age,” Majority Op. at 7, but not if
he attended high school.

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which necessarily involves some measure of uncertainty, see
Hill v. California, 401 U.S. 797, 804 (1971) (“[S]ufficient
probability, not certainty, is the touchstone of reasonableness
under the Fourth Amendment[.]”). That said, the measure of
probability required here was, by my lights, insufficient to
sustain that balance.
III
The majority faults this dissent for its “wooden
approach,” Majority Op. at 9, which would “hold that even
once police have probable cause to believe that a suspect lives
at an address, they must also have case-specific evidence to”
establish probable cause “that the suspect will be home
precisely when they execute the warrant,” Id. That critique,
however, is properly directed to the Founders. The requirement
is not mine but the Constitution’s. See Payton, 445 U.S. at 603
(“[F]or Fourth Amendment purposes, 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.”) (emphasis
added). The majority admits as much. See Majority Op. at 8
(noting “the commonsense requirement that police need
particularized information about a suspect”). Yet its holding
turns entirely on a generalization: what time of day the
archetypal 18-year-old is likely to be home.
Cognizant of this conclusion’s infirmity, the majority
disclaims it. See Majority Op. at 9 (“To be clear, we do not hold
that time of day, standing alone, is always enough to amount to
probable cause that a suspect is at home.”). But its efforts to
manufacture additional indicia of presence belie the truth. The
only other factors the opinion identifies are the predicate of

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residency and the severity of the underlying crime. The former
determines whether police have satisfied Payton’s first prong.
If it also controls prong two, then the test collapses into itself—
police who have probable cause of residency have probable
cause of presence because a resident is likely to be present at
his home. This is inconsistent not only with our precedent, see
Vasquez-Algarin, 821 F.3d at 481, but basic logic. The
existence of a second prong implies the need for more than
what satisfies the first. Police must, therefore, identify
additional factors supporting probable cause of presence. See
id. As already explained, time of day, alone, should not suffice.
Nor can the severity of the suspected crime convert such a
generalization into a particularized deduction. If anything, the
perpetrator of a heinous crime is less likely to maintain a
standard schedule. Evading arrest tends to disrupt one’s daily
routine. But rather than evaluate what effect, if any, the severity
of a crime has on probable cause of presence, the majority
deploys this novel factor to excuse the police from having to
establish probable cause of presence altogether. It decries the
“burden” Payton’s second prong places on law enforcement.
Majority Op. at 8. And it dismisses certain investigative
techniques as incompatible with the exigencies of high stakes
policework. What it conspicuously fails to do, though, is
demonstrate how a suspect’s alleged commission of a serious
crime increases the likelihood of that suspect’s presence at his
residence. And that is what matters. Otherwise, the seriousness
of the offense is not a factor that satisfies Payton’s second
prong but an exception to it. Indeed, under the guise of
“reasonableness,” the majority opinion affords police the
freedom to disregard Payton’s second prong if they find the
underlying crime sufficiently severe. I would not hamstring

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law enforcement by mandating stubborn adherence to any
specific investigative technique. But I would hold the police to
their “burden,” a “burden” perhaps better characterized as the
individual’s sole defense against flagrant violations of core
constitutional rights.
IV
We have never held that time of day, without more,
meets the probable cause requirement of Payton’s second
prong. And across the federal judiciary, decisions that cite time
of day as a factor almost always require more. See United
States v. Diaz, 491 F.3d 1074, 1078 (9th Cir. 2007) (officers
had probable cause to believe the arrestee would be home
because he told them he was usually home during the day, he
worked from home, and had only been absent once during
officers’ previous visits); United States v. Pruitt, 458 F.3d 477,
483 (6th Cir. 2006) (officers relied on the suspect’s friend’s
“assertion that [he] was in the residence at the time selling
drugs”); United States v. Beck, 729 F.2d 1329, 1331-332 (11th
Cir. 1984) (per curiam) (officers relied on time of day and the
fact that the suspect’s car was parked outside the residence);
see also United States v. Jackson, 576 F.3d 465, 469 (7th Cir.
2009) (officers “received a tip that [the suspect] was staying at
[the] apartment and that he would be there the following
morning,” and when they arrived, they asked the suspect’s
“girlfriend if [he] was inside and she nodded yes and started
crying”); United States v. Route, 104 F.3d 59, 63 (5th Cir. 1997)
(officers relied on the sound of the television inside the
residence and the presence of a vehicle in the driveway). In
fact, while various cases recognize time of day as relevant, the

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majority identifies none that hold it independently sufficient.5
The dearth of support confirms the weakness of the majority’s
position.
I cannot fault law enforcement for acting with swiftness
in its efforts to apprehend a person believed to have committed
a drive-by shooting of a 14-year-old. They sought a vicious
killer. Nor can I fault police for deploying a tactical unit trained
to both forcibly enter a residence and to use, if necessary,
deadly force. “Second-guessing” law enforcement has no place
in our Fourth Amendment jurisprudence. Yet at the same time,
I cannot overlook what I consider to have been a failure to
adequately investigate T.C.’s likely whereabouts. A little more
effort and a little less haste might have avoided the
embarrassing and allegedly traumatic encounter that led to this
lawsuit. That is why we require officers executing arrest
warrants to demonstrate probable cause of presence.
“[A]nything less . . . defeat[s] the stringent protection the home
5 Appellees point to United States v. Thomas, 429 F.3d 282, 286
(D.C. Cir. 2005), which appears to have held that police had
probable cause of presence based solely on time of day.
However, as we noted in Vasquez-Algarin, the D.C. Circuit is
among the minority of courts that read Payton to require
something “less than probable cause[.]” Vasquez-Algarin, 821
F.3d at 474. In fact, we explicitly cited to Thomas in Vasquez-
Algarin to support our contention that the “choice to depart
from the probable cause standard and the protections it affords”
leads courts “to require significantly less evidence[.]” Id. at
476. So even if time of day was sufficient in Thomas, that does
not mean that it meets the heightened bar our Court imposes.

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is due.” Vasquez-Algarin, 821 F.3d at 479. Accordingly, I
respectfully dissent.

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