• Fleeing Misdemeanants
• Warrantless Residential Entries by Law Enforcement in Misdemeanor Cases
• Exigent Circumstances Allowing for the Warrantless Entry of a Residence

Flight from law enforcement into one’s home by a misdemeanor suspect, by itself, without any articulable reason to believe an exigency exists above and beyond the flight itself, does not allow for an officer’s warrantless pursuit into the residence.  An exigency, such as a need to prevent (1) imminent harm or violence, (2) the possible destruction of evidence, or (3) the escape of the suspect from the home, must first be shown before a warrantless entry into the suspect’s residence is allowed.

Defendant Arthur Lange—having consumed a bit too much alcohol (later showing a blood-alcohol level of over three times the legal limit for driving)—was enjoying himself on the drive home from where ever he’d been drinking, playing his radio as loud as he could (with his windows rolled down) while repeatedly honking his horn to the beat of Merle Haggard’s classic, “I Think I'll Just Stay Here and Drink.”  (I’m significantly embellishing on the facts here.)  This attracted the attention of a California Highway Patrol Officer who—apparently not appreciating the talents of Merle Haggard (still embellishing)—began to follow defendant.  Eventually hearing enough, the officer flipped on his overhead lights, attempting to make a traffic stop.  Being about a hundred feet (four-seconds driving time) from this home, defendant decided to make a dash for it, ignoring the officer’s attempt to stop him and driving straight into his attached garage.  Not in the least deterred, the officer followed defendant into the garage (presumably parking in his driveway) and made contact.  Upon observing signs of intoxication, the officer subjected defendant to a field sobriety test on which he did not do well.  He was therefore busted and transported to jail.  Defendant was charged in state court with the misdemeanor offense of driving while under the influence of alcohol plus a lower-level noise infraction.  He thereafter filed a motion to suppress the products of the officer’s warrantless entry into his garage (e.g., the FST results, blood alcohol level, etc.), which was denied by the trial court; a decision that was upheld by the appellate division of the superior court.  Division 5 of the First District Court of Appeal affirmed in an unpublished decision, specifically ruling that an “officer’s ‘hot pursuit’ into the house (which includes an attached garage) to prevent the suspect from frustrating the arrest” is always permissible under the exigent-circumstances exception to the warrant requirement.  (People v. Lange (Oct. 30, 2019) 2019 Cal. App. Unpub. LEXIS 7266.)  In other words, the appellate court held that as a “categorical rule,” it is always lawful for law enforcement to pursue a fleeing misdemeanant into his home.  With the California Supreme Court denying review on the matter, defendant appealed to the United States Supreme Court.

The United States Supreme Court unanimously (with three concurring opinions) reversed.  The issue discussed was whether a misdemeanor suspect fleeing into his own home, with law enforcement in “hot pursuit,” justifies the warrantless entry into the home by the pursuing police officers as a “categorical rule.”  In other words, does flight alone justify law enforcement’s warrantless hot pursuit into a misdemeanor suspect’s home, without regard as to whether an exigency, over and above the flight itself, exists   California’s lower appellate courts in this case, in affirming the trial court’s denial of defendant’s motion to suppress, answered this question in the affirmative.  The U.S. Supreme Court disagreed.  The well-settled rule is that pursuant to the Fourth Amendment, judicial warrants are necessary in order for law enforcment to make entry into areas where a suspect has a reasonable expectation of privacy.  One’s home is accorded even more protection than other private areas might. “[W]hen it comes to the Fourth Amendment, the home is first among equals.” (Florida v. Jardines (2013) 569 U. S. 1, 6.)  Per the Court:  “(T)he ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” (Brigham City v. Stuart (2006) 547 U. S. 398, 403.) “That (reasonableness) standard ‘generally requires the obtaining of a judicial warrant before a law enforcement officer can enter a home without permission.”  (Riley v. California (2014) 573 U.S. 373, 382.)   However, like every other such rule, there are exceptions.  The presence of “exigent circumstances” is one such exception to the warrant requirement.  Whether or not the exigent circumstances exception applies must be determined on a “case-by-case basis.” The “exigent circumstances” exception applies whenever “the exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable” (Kentucky v. King (2011) 563 U. S. 452, 460.), and when under the circumstances, there is insufficient time to obtain a search warrant  As for the issue of whether a fleeing misdemeanant, taking refuge from pursuing police officers by running into his own home, constitutes such an exigency all by itself (i.e., a “categorical rule”), allowing for law enforcement’s immediate entry into the home, the Court noted that there are conflicting opinions by the lower courts throughout the country.  (See footnote #1, in the published opinion, for an extensive list of such cases.)  Resolving this conflict, and while noting the various degrees of seriousness of those offenses classified as misdemeanors, the Court held here that a “categorical rule” to the effect that a fleeing misdemeanant running into his own home justifies law enforcement’s warrantless entry in pursuit, absent a showing of exigent circumstances over and above the fact of the flight alone, violates the Fourth Amendment, and is therefore illegal.  A showing of exigent circumstances might involve something such as an articulable need to prevent (1) imminent harm or violence to the officer or others, (2) the possible destruction of evidence, or (3) the escape of the suspect from the home.  And while one or more of these exigent circumstances is likely to apply to the vast majority of cases, the courts below in this case never reached this issue, denying defendant’s suppression motion based solely on the “categorical rule” that the hot pursuit of a fleeing misdemeanant alone is constitutionally sufficient to justify an officer’s warrantless entry into the suspect’s home.  This case, therefore, was remanded back to the trial court for a determination of whether exigent circumstances (other than just the defendant’s flight) justified the officer’s entry into defendant’s garage.

As noted in the concurring opinions, this case does not alter the general rule that the warrantless pursuit of a “fleeing felon” into his home is lawful whether or not other exigencies apply.  (e.g., see United States v. Santana (1976) 427 U. S. 38, 42-43.).  Also, once an arrest is make, the arrestee escaping from the officer and fleeing into his home justifies law enforcement’s pursuit of the arrestee into his home, whether for a felony or a misdemeanor.  There’s also mention in several of the concurring opinions (see concurring opinions by Justice Clarence Thomas and Elena Kagan.) about the lawfulness (based upon “common law” concepts) of chasing suspects into their homes when that suspect has committed an “affray” (i.e., “public fighting.”), a “pre-felony” (“a dangerous wounding whereby [a] felony is likely to ensue.”), or a “breach of the peace” (see footnote #7 in the written decision:  “(encompassing) many kinds of behavior.” Atwater v. Lago Vista (2001) 532 U.S. 318, 327, fn. 2.), without any serious discussion of what these terms really mean or when they might apply.  Bottom line is that there are any number of exceptions to the rule of this case that the Court here left hanging in the wind.  As noted by Chief Justice John Roberts in his concurring opinion, the exceptions to the rule as announced in this decision all but eat up the rule itself.  Justice Thomas in his concurring opinion also includes an interesting discussion of the fact that even though the officer’s pursuit of defendant into his garage in this case may have violated the Fourth Amendment, suppression of the evidence is not a viable remedy.  Citing Herring v. United States (2009) 555 U. S. 135, it is noted that the Exclusionary Rule “does not apply when the costs of exclusion outweigh its deterrent benefits.”  (See also Utah v. Strieff (2016) 579 U.S. 232, 235.)  Aside from the officer’s good faith reliance upon what many authorities considered to be lawful (i.e., hot pursuit of a fleeing misdemeanant), Supreme Court “precedents make clear that the exclusionary rule does not apply when it would encourage bad conduct by criminal defendants.”  “(C)riminal defendants cannot use the exclusionary rule as ‘a shield against’ their own bad conduct.”  (Citing Walder v. United States (1954) 347 U. S. 62, 65.)  If the evidence in this case is in fact suppressed, such a result would encourage other misdemeanants to do the same; flee from the police when a detention for investigation is attempted.  This fact alone justifies, upon remand, the denial of defendant’s motion to suppress.  Lastly, note that the all the officer had in the way of probable cause when he entered the garage was the defendant’s violation of what the court referred to as “a lower-level noise infraction.”  It apparently wasn’t noticed that defendant was intoxicated until after the officer had already entered the garage.  The Court, however, whether in the lead decision or any of the concurring opinions, does not discuss the potential issue whether or not the rule as established here includes infractions.   The Court having failed to make a distinction, it is arguable that the justices just assumed the same rules apply.  But in considering the “totality of the circumstances,” it is also arguable that even if the same rules do apply, the prosecution will at least have to prove even stronger exigent circumstances concerning the likelihood of (1) imminent harm or violence, (2) destruction of evidence, or (3) the escape of the suspect, justifying the officer’s entry into a residence when the only probable cause for stopping the defendant in the first place was the violation of an infraction.  This is certainly an issue Lange’s counsel needs to bring up on remand.  Also, however, an alternative argument for the prosecution is that by fleeing, defendant was then in violation of Penal Code § 148; a misdemeanor.  (See Stanton v. Sims (2013) 571 U.S. ­­3, at pg. 5, and fn. 1.)  Unfortunately none of this was discussed in this new case.