One late October night, Arthur Lange was driving home in Sonoma County, California. Music played loudly out his open windows and he honked his horn a few times. The noise alerted CHP Officer Weikert. He followed Lange, intending to stop him for “excessive sound amplification” and “honking without justification,” both minor infractions.
Officer Weikert followed Lange at a distance off the main road and through several turns in his neighborhood. When Lange slowed to use his garage door opener, Weikert activated his lights. Lange turned into his driveway four seconds later and entered his garage. Weikert parked in the driveway, walked up and put his foot under the garage door just as it was about to close, causing it to reopen. He entered the garage and asked, “Did you not see me behind you?” Lange replied he hadn’t. Weikert asked about the honking and music and for Lange’s license and registration.
Weikert smelled alcohol, observed bloodshot eyes, heard slurred speech and had Lange perform sobriety tests. Lange was arrested for DUI and a blood alcohol test measured .245. The county DA charged Lange with a misdemeanor DUI and a noise infraction for the loud music.
In the lower courts
The defense moved to suppress the evidence obtained after the officer entered the garage, arguing it was a prohibited warrantless entry into Lange’s home.
The prosecutor responded the entry was lawful because the officer was in “hot pursuit” based on probable cause that Lange had committed the misdemeanor of willfully failing or refusing to comply with a lawful order, signal, or direction of a peace officer. The state trial and appeals court sided with the prosecution.
The law
“Exigent circumstances” is a long-recognized exception to the Fourth Amendment’s warrant requirement. Whether exigent circumstances exist – like the imminent destruction of evidence or danger of harm to a person – is often a case-by-case decision. But the Supreme Court has repeatedly found that “hot pursuit of a fleeing felon” categorically establishes exigent circumstances.
State and lower federal courts are split on whether the “hot pursuit” exception to a warrant includes misdemeanors. Accordingly, the Supreme Court accepted this case and heard oral arguments on February 24, 2021.
I confess I initially balked at the prosecution arguing that a tepid pursuit for a misdemeanor they only thought up after-the-fact justified warrantless entry into a home. Then I harkened on my days as a prosecutor and recalled that saving a conviction for a DUI three times over the limit could ignite creative arguments. Apparently, the California appellate attorney also balked because he abandoned the misdemeanor argument and tried to save the conviction with a “good faith exception.”
In the Supreme Court
This case caused quite a hubbub amongst numerous divergent groups. As best I could count, there were nineteen amicus curiae (“friends of the court”) briefs filed. These are filed by folks other than the parties, arguing one side or the other of the legal issue. Because the court decides whether to accept them, the Supreme Court must’ve thought all these briefs offered some insight. That’s a lot of input.
The amicus curiae groups ran quite a gamut. They included the ACLU, Fraternal Order of Police, National Association of Criminal Defense Lawyers, several gun groups, the states of Illinois, Alabama and Ohio, a legal scholar, MADD and a lawyer the Supreme Court especially requested to brief and argue a position even more expanded than what California asked.
The case also made for strange bedfellows, uniting the ACLU with gun groups, albeit for different reasons. The gun groups argued expanding the exception could have the unintended consequence of increasing firearm-related injuries. (I trust your imagination can fill in how that might occur.) The ACLU focused on privacy. Both the ACLU and gun groups expressed concern the police would use pretextual traffic violations or minor misdemeanors to circumvent the Fourth Amendment’s warrant requirement.
Four different attorneys made oral arguments for a range of rulings:
- Lange’s attorney urged the justices to reverse his conviction and adopt a rule that police pursuing a suspect should always have to get a warrant to enter the home unless there is a genuine emergency requiring no delay – irrespective of whether the offense was a felony or misdemeanor.
- California took an unusual position. Contrary to its victory in the lower courts, it argued against a categorical rule in misdemeanor pursuits. It said Officer Weikert was not justified entering Lange’s garage, but the DUI conviction should stand because the officer entered based on a “good-faith” reliance on state legal precedent. The state did assert police should be categorically permitted to pursue a felony suspect into their home.
- Because California did not defend the lower court’s ruling, the justices appointed a lawyer for that purpose. She argued for a rule that would allow police to pursue a fleeing suspect into a home without a warrant regardless of the underlying offense.
- An assistant U.S. solicitor general, arguing on behalf of the United States, pressed the justices to affirm the state court’s ruling. At a minimum, she contended, there should be a general presumption police can follow someone they believe committed a misdemeanor into a home without a warrant.
The Supreme Court’s reaction
One theme that emerged from the justices’ questions was how difficult they found the task before them. (Try being the street cop trying to figure this out in the field!)
Justice Roberts observed a categorical rule distinguishing between felonies and misdemeanors was problematic – a DUI could be a misdemeanor or a felony, depending on priors.
Justice Breyer noted that a misdemeanor in Massachusetts could include serious offenses with sentences over two years, like reckless driving resulting in death, while California reserves misdemeanors for minor offenses.
Justices Sotomayor and Kagan questioned whether it wouldn’t be more appropriate to decide all warrantless entries on their circumstances – given some felonies, like white-collar crimes, pose no urgency, while misdemeanors like domestic violence can.
Justice Gorsuch asked why they should expand the warrant exception to misdemeanors now when the framers of the Fourth Amendment hadn’t.
Three justices questioned whether a true “hot pursuit” and flight might not present an exigency regardless of the underlying crime, given the suspect’s ability to procure a weapon or do other harm. The lawyer appointed by the court agreed but urged the justices to adopt a categorical rule, so police and courts weren’t having to make case-by-case determinations.
What’s a cop to do?
If this is tough for the nine justices, what’s a cop in the street supposed to do until this case is decided?
- Make sure you know the current law in your jurisdiction for a warrantless entry when pursuing a suspect. Ask your local prosecutor for guidance.
- Tune into Police1. A decision in Lange is expected by the end of June. I’m hoping but not betting it will clarify things. Regardless, I’ll be writing about it.
Take care and thank you for your service.
