Justices to consider whether “hot pursuit” justifies entering the home without a warrant
An old English maxim instructs that a man’s home is his castle – a refuge from the outside world. On Wednesday the Supreme Court will hear oral argument in a case testing how much protection the Constitution provides to the home. At issue in Lange v. California is whether, when police are pursuing someone for a misdemeanor, that is always an “exigent circumstance” that will allow the officer to follow the suspect into a house without a warrant.
The defendant in the case is Arthur Lange, who in 2016 was returning to his home in Sonoma, California, in his car. While driving with his windows down and listening to music, Lange also honked his horn a few times. Lange caught the attention of Aaron Weikert, a California highway patrol officer who followed Lange from a distance into his residential neighborhood.
Weikert turned on his overhead lights as Lange approached his driveway, but Lange – who later said that he had not seen Weikert – pulled into his garage. Weikert parked in Lange’s driveway and, as Lange’s garage door began to close, stuck his foot under the door to block it from closing. When the door reopened, Weikert entered the garage – where, he said, he smelled alcohol. Lange was later taken to a hospital, where testing determined that his blood-alcohol level was 0.245%, more than three times the legal limit.
Lange was charged with driving under the influence and a noise infraction. He asked the trial court to bar prosecutors from using evidence obtained in the garage, arguing that Weikert had violated the Fourth Amendment when he entered the garage without a warrant. The California Court of Appeal upheld Lange’s conviction. It ruled that Weikert had probable cause to arrest Lange when Lange continued to his driveway and into his garage after Weikert turned on his lights. And because Weikert was in “hot pursuit” of Lange, his entrance into Lange’s home was justified, even though Weikert did not have a warrant. After the California Supreme Court declined to weigh in, Lange asked the U.S. Supreme Court to take up his case, which it agreed to do in October 2020.
Lange’s arguments: A case-by-case approach
In his brief on the merits, Lange urges the justices to reverse the state court’s ruling. Although searches and seizures without a warrant may frequently be allowed outside the home, even when relatively minor offenses are involved, Lange stresses, a different rule applies inside the home. A core principle of the Fourth Amendment, Lange contends, is that police officers generally need a warrant to enter a home. The Supreme Court has carved out an exception to this general rule for “exigent circumstances,” but it is limited, Lange stresses: The court has repeatedly made clear that the exception applies only in genuine emergencies, when there isn’t enough time for police to get a warrant.
Any determination of whether there are exigent circumstances allowing police to enter a home when they are in hot pursuit of a suspect should always be made on a case-by-case basis, regardless of what kind of crime police believe the suspect committed, Lange contends. But at the very least, Lange continues, the court should reject a categorical rule that would allow police to enter a home without a warrant whenever they are following someone whom they believe committed a misdemeanor. There is a wide range of misdemeanors, Lange reasons, some of which – like jaywalking and loitering – are not at all violent. Creating a categorical exception, Lange writes, “would ignore those distinctions, treating pursuit of teenagers walking home just after curfew the same as pursuit of a fleeing armed robber.”
Lange pushes back against any suggestion that a categorical rule would benefit police officers, noting that officers make case-by-case determinations in other situations all the time. When police officers determine that they do need to enter a home without a warrant – for example, to ensure that evidence is not destroyed or to protect another person – courts routinely uphold those entries, Lange adds. By contrast, Lange continues, a categorical rule would have high costs generally, by allowing police to enter homes even when there is no emergency, but especially for people of color, who are more likely to have the kind of contacts with the police that could lead to the police pursuing them for misdemeanors.
California’s arguments: A middle-ground position
California initially told the court that it should deny review, but in its brief on the merits it urges the justices to vacate the state court’s ruling – although both its reasoning and the result it asks the justices to reach are slightly different than Lange’s. California concedes that the Supreme Court has created a categorical rule allowing police officers to enter a home without a warrant when they are pursuing someone whom they believe has committed a felony, but the state argues that the court should draw the line there. The interests justifying the exception to the general warrant requirement for pursuit in the context of suspected felonies – for example, the possibility that the suspect will escape or destroy evidence – are less likely to be present in misdemeanor pursuits, the state contends. And in any event, the state continues, when police are pursuing a misdemeanor suspect, they may determine in some cases either that there is an emergency that would justify entering the suspect’s house without a warrant, or they can apply for a warrant quickly.
California suggests that even if the Supreme Court agrees that a categorical rule does not apply to the pursuit of someone suspected of committing a misdemeanor, it should nonetheless send the case back to the state courts so that they can consider whether the evidence that Lange was under the influence should still be admitted. The state courts can consider that evidence, California posits, because the officer acted in good faith even if he was ultimately wrong about what the Fourth Amendment requires.
Defending the judgment below: A court-appointed advocate steps in
Because California declined to defend the state court’s decision, the Supreme Court appointed Amanda Rice, a Detroit lawyer who clerked for Justice Elena Kagan, as a “friend of the court” to do so instead. Rice stakes out a broad position, arguing that the Supreme Court’s cases allow police to enter a home without a warrant whenever they are in hot pursuit of a fleeing suspect – without any suggestion that the ability to do so hinges on whether the underlying offense is a felony.
Such a rule, Rice contends, reflects an appropriate balancing of the interests involved. Regardless of what the underlying offense is, the government has a strong interest in discouraging a suspect from fleeing police, and it generally also has a strong interest in identifying a suspect. On the other hand, a suspect’s privacy interests are reduced. He can maintain the privacy of his home by surrendering to police outside the home when he is being pursued; if he opts to go inside his home instead, he has to expect that the police officer will follow him to arrest him, and he therefore gives up any expectation of privacy. The rule boils down to “common sense,” Rice concludes: “Whatever the classification of his initial crime, a fleeing suspect cannot graft the protections of the home onto a lawful arrest begun in public by running inside.”
Rice extols the benefits of a categorical rule, telling the justices that it will give police officers “the ‘clear and unequivocal guidelines’ they need to do their jobs.” By contrast, she contends, Lange’s case-by-case rule would require police officers “to make split-second decisions based on rapidly unfolding facts,” transforming each exercise of an officer’s discretion “into an occasion for constitutional review and potential civil liability.”
Rice goes a step further than California in the outcome that she proposes for Lange’s case. Even if the Supreme Court rejects a categorical rule, she suggests, it should still uphold the California Court of Appeal’s decision because Weikert was relying on decisions by state appeals courts when he followed Lange into his garage. Moreover, Rice adds, Weikert’s decision to follow Lange “was reasonable on its own terms anyway.”
Arguments of the federal government and advocacy groups
The federal government filed a brief in which it also urged the justices to affirm the state court’s ruling. Although the Supreme Court’s cases involving hot pursuit have involved probable cause to believe that the suspect committed a felony, the government acknowledges, all of the same considerations that justify allowing a police officer to enter a home without a warrant when pursuing a suspect for a felony “will typically, if not invariably, extend” to cases involving a misdemeanor as well. Even if there is not a categorical rule allowing police officers to enter a home without a warrant when they are in hot pursuit of a suspect in cases involving misdemeanors, the government continues, there should at least be a general presumption that such warrantless entries are reasonable – which, the government adds, Weikert’s was.
Ten different “friend of the court” briefs were filed in support of Lange, representing a wide range of views – everything from the American Civil Liberties Union and the National Association of Criminal Defense Lawyers to a group of gun owners. A brief by privacy advocates cautions the justices about the broader implications of their decision, warning that a ruling upholding the state court’s categorical rule could eventually allow police to conduct searches without a warrant, sometimes even remotely, in other contexts, such as cellphones and electronic devices, which usually contain the kind of personal information once found only in the home.
State governments and law-enforcement groups dominate the six “friend of the court” briefs filed in support of Rice and the judgment below. A brief by the National Fraternal Order of Police stresses that it is not asking for “unrestrained ambition for its officers to effectuate lawful stops and arrests.” Instead, the group emphasizes, the categorical rule outlined by the state court is a narrow one that applies only “in a very limited set of circumstances.” We’ll know more on Wednesday about whether the justices see the case the same way.
This article was originally published at Howe on the Court.