Residential Entries and “Fresh Pursuit”  

Robert C. Phillips
Deputy District Attorney (Ret.)
June, 2021

We previously reviewed the recent United States Supreme Court decision of Stanton v. Sims (2013) 134 S.Ct. 3, where it was held that it is an unsettled issue whether chasing a fleeing misdemeanant into one’s home (and the curtilage of his home) in “hot pursuit” (i.e., on the suspect’s heels) is constitutional.  In its decision, the High Court noted that California courts have allowed officers to do so despite some lower federal court decisions to the contrary, and that at the very least, the offending officer is entitled to qualified immunity in a federal civil suit.

The Sims decision, however, does not address the related issue of the constitutionality of an officer making a warrantless entry into a residence while in “fresh pursuit” of a misdemeanor suspect.  Again, the courts are in disagreement.

The California Supreme Court has specifically addressed this issue.  In People v. Thompson (2006) 38 Cal.4th 811, California’s High Court ruled that entering a house, without consent or a warrant, to arrest a suspected driving–while-under-the-influence suspect, after a private citizen had personally observed the defendant’s driving and followed him home while calling the police, was lawful, at least as a general rule.  Such an entry, when the officers are engaged in the immediate investigation and pursuit of a suspect, even though the crime did not occur in their presence as occurred in Sims, can be labeled as a “fresh pursuit.” 

Not surprisingly, however, the federal Ninth Circuit Court of Appeal disagrees.   In Hopkins v. Bonvicino (9th Cir. 2009) 573 F.3rd 752, the Ninth Circuit held that California’s interpretation under Thompson is wrong, and that a warrantless entry into a home to arrest a misdemeanor DUI suspect is a Fourth Amendment violation.  Specifically, the Court held that warrantless entries into residences in misdemeanor cases “will seldom, if ever, justify a warrantless entry into a house.”

Interestingly enough, both the California Supreme Court and the Ninth Circuit rely upon the same United States Supreme Court authority, Welsh v Wisconsin (1984) 466 U.S. 740, for reaching diametrically opposed conclusions. 

In Welsh it was held that a first time DUI, being no more than a civil offense with a $200 fine under Wisconsin law, was not aggravated enough to allow for a warrantless entry into a residence to arrest the perpetrator.  Based upon California’s interpretation of Welsh, the cutoff for making warrantless residential entries under the exigency or emergency exceptions, including a “fresh pursuit” situation such as in Thompson, is (at least generally) whether the underlying crime is a “bookable” offense, and not, as argued by some lower federal courts, whether it is a felony or a misdemeanor.  Lower California courts have picked up on this rule finding warrantless residential entries in non-bookable situations, such as the simple possession of marijuana (see People v. Hua (2008) 158 Cal.App.4th 1027; and People v. Torres et al. (2012) 205 Cal.App.4th 989) to be unlawful. 

As noted by the Ninth Circuit, however, there is a distinct difference between the facts in Thompson, where there was the possibility that the defendant could again leave his house and continue his dangerous DUI driving, and Welsh, where the defendant’s vehicle, having been found on the street, had already been impounded, eliminating the likelihood of a continuation of the offense.  But the U.S. Supreme Court in Welsh specifically noted that they were not deciding whether warrantless arrests in a home for “certain minor offenses” were necessarily illegal (Welsh, at p. 750, fn. 11.), but rather that the Welsh rule, prohibiting warrantless entries into residences to arrest for minor offenses, applies only when the underlying crime is a non-bookable offense and, perhaps, in circumstances where the suspect isn’t likely to continue his violation.

So again, we have an unsettled issue, with the federal Ninth Circuit ruling that fresh pursuit into a residence of a criminal suspect, when the entry is made without a warrant or consent, is unlawful unless the offense is a felony, and the California courts finding that the cut off for such entries is as a general rule between bookable and non-bookable offenses.  It is arguably also the state rule that warrantless (or without consent) fresh pursuit entries into a residence in misdemeanor cases is unlawful whenever there is no chance that the offense is going to continue, as occurred in Welsh.

So which rule are you to follow?  California appellate authority takes precedence over lower federal court cases, including the Ninth Circuit.  But that does not protect you from civil liability when a lawsuit is filed in federal court, as such suits generally are.  But as in Sims, the likely result, if we can manage to get such a federal civil suit past the Ninth Circuit, would be that you are entitled to at least qualified immunity, it being an unsettled issue.  Whether or not you want to endure the time, expense, and personal anxiety of such a lawsuit, however, is between you and your supervisors.

Note:  But see Lange v. California (June 23, 2021) __ U.S.__ [141 S.Ct. 2011; 210 L.Ed.2nd 486]  (California Legal Update, Vol. 26 #8)

Rule:  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.