The Lawletter Vol 47 No 1
Arthur Lange (“Lange”) drove past a highway patrol officer with his windows down, music blaring, and repeatedly honking on his horn; in short, Lange “was asking for attention.” Lange v. California, 141 S. Ct. 2011, 2016 (2021). The officer followed Lange a short distance before turning on his overhead light and attempting to pull Lange over. Id. Lange was seconds away from his home, however, and chose to continue to his driveway and pull into his garage. Id. The officer continued his pursuit and confronted Lange with the subsequent investigation revealing, perhaps unsurprisingly, that Lange was under the influence of alcohol.See id. (blood test revealed Lange was more than three times the legal limit).
Upon being charged with driving under the influence as well as a noise infraction, Lange moved to suppress all the evidence obtained by the officer’s warrantless entry into the garage. Id. In response, the prosecution argued that “the pursuit of a suspected misdemeanant always qualifies as an exigent circumstance authorizing a warrantless home entry.” Id. (emphasis added). The state courts accepted this argument and the U.S. Supreme Court granted review to resolve the conflict between the various state/federal courts regarding a categorical rule of exigency when in pursuit of a fleeing suspect. Id. at 2017.
The Court began its analysis by noting that the exigency exception to the warrant requirement permits officers to handle emergency situations when “the delay required to obtain a warrant would bring about some real immediate and serious consequences—and so the absence of a warrant is excused.” Id. at 2017–18 (internal quotation marks omitted). This exception, however, is generally applied on a case-by-case basis. Id. at 2018. Refusing to take the case of a fleeing misdemeanant outside of this case-by-case approach, the Court noted that it is naturally hesitant to expand any warrant exception to home entry. Id. at 2018–19. Equally compelling to the Court is the fact that while misdemeanors “vary widely, . . . they may be (in a word) ‘minor.’” Id. at 2020.
Explaining that when faced with a minor offense, officers do not usually face the kind of emergency that can justify a warrantless home entry, the Court reasoned that when a misdemeanant’s flight is added, the equation certainly changes, but not enough to justify a categorical rule. Id. at 2021. This conclusion was further supported by the common law, which provides that an officer could enter a home to pursue a felon, id. at 2023, but does not traditionally permit the same action for all misdemeanor offenses. In light of this historical context, the Lange Court concluded that “[t]he flight of a suspected misdemeanant does not always justify a warrantless entry into a home.” Id. at 2024. Instead, an officer must “consider all the circumstances in a pursuit case to determine whether there is a law enforcement emergency.” Id.
Despite this holding, the Court noted that “[o]n many occasions, the officer will have good reason to enter—to prevent imminent harms of violence, destruction of evidence, or escape from the home.” Id. In a separate opinion, concurring in the judgment, Chief Justice Roberts argued that by refusing a categorical rule, but recognizing the possibility of exigency, the majority requires an officer pursuing a fleeing suspect to (1) stop and consider whether the suspect will be charged with a misdemeanor or a felony, (2) tally up the “‘exigencies’ that might be present or arise” and (3) decide “whether he can complete the arrest or must instead seek a warrant.” Id. at 2028. Instead, the Chief Justice concluded that “hot pursuit is not merely a setting in which other exigent circumstances justifying warrantless entry might emerge. It is itself an exigent circumstance.” Id. Such an approach would still have limits, id. at 2033–34 (entry itself must be reasonable, search must be limited to those spaces where the person can be found, arrest cannot be conducted in a manner “unusually harmful to an individual’s privacy or even physical interests”). Nevertheless, the initial pursuit of the fleeing suspect would be appropriate. Given that the state courts’ categorical rule did not consider such factors, the Chief Justice would still “vacate the decision below to allow consideration of whether the circumstances at issue in this case fall within an exception to the general rule.” Id. at 2034.
Despite the apparent disconnect between the Chief Justice and the majority, Justice Kavanaugh noted that “there is almost no daylight in practice” between the approaches. Id. at 2025 (Kavanaugh J., concurring). This practicality stems from the fact that “cases of fleeing misdemeanants will almost always also involve a recognized exigent circumstance—such as a risk of escape, destruction of evidence, or harm to others—that will still justify warrantless entry into a home.” Id. It remains to be seen if this observation proves prophetic and if the Court has merely adopted a not quite categorical rule permitting pursuit of fleeing misdemeanants.