Supreme Court Report
The 2016 police encounter involving retired California real estate agent Arthur G. Lange seemed routine, more likely to be on the TV show Cops than one destined for a major Fourth Amendment confrontation in the U.S. Supreme Court.
The case involves a police officer who entered Lange’s garage without a warrant and questioned Lange after pursuing his vehicle because he heard erratic horn-blowing and loud music coming from the car.
The question in Lange v. California, scheduled for argument Wednesday, is whether police officers who pursue someone suspected of a misdemeanor into a home may conduct a warrantless search or seizure. It is well-established that police in “hot pursuit” of a suspected felon in public may follow that suspect into a residence.
The new case addresses whether pursuit of a misdemeanor suspect qualifies categorically as an exigent circumstance allowing an officer to enter a home without a warrant.
The case has implications not just for drivers such as Lange but for any number of situations when potential misdemeanor offenders might enter or retreat into the home at the sight of the police.
“Misdemeanors represent such an enormous aspect of our criminal justice system,” says Alexandra Natapoff, a Harvard Law School professor who has written widely on the topic. “Permitting law enforcement to breach the home on the basis of a misdemeanor would be a vast expansion of police power.”
The local prosecutor who handled Lange’s case argues that requiring a warrant for a search after the hot pursuit of even a misdemeanor suspect would often allow the destruction of evidence or escape of the suspect and put police at risk.
“I don’t want police bursting into homes on a daily basis either,” says Sonoma County, California, Deputy District Attorney Robert A. Maddock. “There is a necessity for a clear rule for officers to follow.”
A stealthy pursuit
As Lange drove home late one Friday evening in Sonoma County, in the heart of wine country, his horn-honking and loud music attracted the attention of California Highway Patrol Officer Aaron Weikert.
Lange had been drinking that night, according to evidence in the case and his own eventual plea of no contest to a charge of driving under the influence.
The pursuit, first on a busy highway and then through a residential neighborhood, was mostly stealthy. The officer followed Lange’s car at a distance and did not turn on his siren or police lights until after Lange had paused on a residential street, when it became clear that Lange had activated his remote-control garage-door opener at his home.
By this time, Weikert had pulled close behind Lange. As Lange began to move again, the officer activated his police lights. About 4 seconds elapsed before Lange turned up his driveway and into his garage, court papers say.
As the garage door lowered, the CHP officer got out of his car and used his foot to trigger the light beam safety mechanism that prompted the garage door to go back up.
“Did you not see me behind you?” Weikert asked Lange in the garage, according to court papers. Lange said he had not. The officer smelled alcohol on Lange’s breath. Lange was given a field sobriety test and taken to a hospital for a blood-alcohol test, which registered at three times the legal limit.
Lange was charged with a misdemeanor DUI offense and a traffic infraction for operating his car’s sound system at an excessive level. Lange argued that the police officer’s warrantless entry into his garage violated the Fourth Amendment’s prohibition against unreasonable searches and seizures and that the evidence related to the DUI charge should be suppressed.
His motion was denied by a trial judge, and that ruling was affirmed by one appellate court. Lange then pleaded no contest to the DUI charge. He was sentenced to 30 days in jail and three years of probation based on his high blood-alcohol level and a prior DUI conviction. But he pursued his case with the California Court of Appeal, which affirmed his conviction.
“We conclude the officer’s ‘hot pursuit’ into the house to prevent the suspect from frustrating the arrest which had been set in motion in a public place constitutes a proper exception to the warrant requirement,” the appellate court said. The Supreme Court of California denied review.
Lange’s petition to the U.S. Supreme Court, written by the Stanford Law School Supreme Court Litigation Clinic, stressed that lower state and federal courts are split on the proper approach to misdemeanor pursuit, with five state supreme courts holding that such pursuits categorically justify warrantless home entry, while three state high courts and two federal appeals courts holding that such pursuits require a case-specific showing of exigency.
‘The sanctity of the home’
The Supreme Court has ruled on a number of novel Fourth Amendment issues in recent years. It upheld the police’s swab of an arrestee’s cheek for a DNA sample in Maryland v. King in 2013. Three years later, in Birchfield v. North Dakota, the court held that the Fourth Amendment permits warrantless breath tests incidental to arrests for drunk driving but not warrantless blood tests.
The court has been protective against warrantless police searches of the home or of “effects” that were once largely stored in the home. In 2018, in Collins v. Virginia, the justices said the Fourth Amendment barred a warrantless entry to the curtilage of a home to inspect a vehicle.
In 2014, in Riley v. California, the court held that the police generally may not search the digital information stored in the cellphone of an arrestee without a warrant.
Chief Justice John G. Roberts Jr., in the majority opinion in the cellphone case, observed that “a cellphone search would typically expose to the government far more than the most exhaustive search of a house.”
Jeffrey L. Fisher of the Stanford Law clinic, who will argue on behalf on Lange on Wednesday, says the case “is about the sanctity of the home. The home is the first among equals when it comes to private spaces.”
Fisher argues that precedent, history and fundamental Fourth Amendment principles suggest that the pursuit of a misdemeanor suspect into a home requires the same case-by-case analysis required by other exigent-circumstances exceptions to the warrant requirement.
“Officers may make a warrantless home entry if taking the time to seek a warrant would frustrate a compelling law-enforcement need—but not otherwise,” he says.
Natapoff, the Harvard law professor, joined an amicus brief in support of Lange filed by the American Civil Liberties Union and other groups that argues a categorical rule allowing warrantless police pursuit of misdemeanor suspects into a home would be a 21st century equivalent of Colonial-era general warrants.
“Misdemeanors are the way most people experience contact with the police,” Natapoff says. “It turns out to be extraordinarily difficult to just drive home without committing a misdemeanor offense.”
A categorical rule could exacerbate tensions in police interactions with minority group members, she says.
“Add warrantless misdemeanor pursuits into the home to ‘driving while Black,’ and you have just ratcheted up the problem of racially disproportionate policing and invading Black privacy,” Natapoff says.
The state of California, which prosecuted Lange, is in an usual posture before the Supreme Court. It argues against a categorical rule in misdemeanor pursuits. It says in a brief that the police officer had no basis to enter Lange’s garage on the suspicion that he had committed a misdemeanor. (The state suggests Lange’s subsequent DUI conviction may well stand because the officer entered the garage based on a good-faith reliance on binding state law precedent.)
A concern about ‘wobblers’
Given the state’s position, the Supreme Court appointed an amicus, Amanda K. Rice of Jones Day, to defend the court ruling. (As it typical with such appointments, Rice is a former high court law clerk, having served Justice Elena Kagan.)
Rice stresses a 1976 Fourth Amendment ruling of the court, United States v. Santana, which upheld the police pursuit of a suspected drug dealer from her doorway into the vestibule of her home.
The “act of retreating into a house,” the court said in Santana, cannot “thwart an otherwise proper arrest” that has been “set in motion in a public place.”
Rice says in her brief that “Although the drug-dealing offense in Santana happened to be a felony, … the court’s ruling turned neither on the classification of that offense nor on whether other exigent circumstances were present. Instead, the court made clear that hot pursuit was itself ‘sufficient to justify the warrantless entry into a house.’”
She argues for a categorical rule allowing warrantless home entry during police “hot pursuit.”
The U.S. solicitor general’s office doesn’t go quite that far but argues that “the hot-pursuit rule should at least presumptively apply in the misdemeanor context.”
The federal government’s brief argues the line between felonies and misdemeanors is complex and difficult for police officers to apply in the field.
“An officer who observes an offense is often in ‘no position to know’ facts that will determine whether a crime is a misdemeanor or a felony, such as the type of drugs transferred, ‘the precise value of property stolen, or whether the crime was a first or second offense,’” the solicitor general’s brief said.
The Sonoma County District Attorney’s Office, where Maddock works, also filed an amicus brief that supports a categorical rule (and thus parts ways with the state of California).
Maddock agrees with the U.S. solicitor general’s argument that the level of offense is tricky for officers in the field to apply in the middle of a hot pursuit, especially since many states, including California, have what he called “wobblers.” Those are offenses they may be charged as felonies or misdemeanors depending on the circumstances.
“The practical application of a felony-only hot-pursuit rule seems to make it difficult for police officers and the public to understand what their rights are,” Maddock says.