High court hones in on ‘hot pursuit’ of misdemeanor suspects

This past summer, on July 10, a certiorari petition in an unheralded and mundane California misdemeanor driving under the influence case landed on the U.S. Supreme Court's docket. Lange v. California, 20-18. After asking the California attorney general, who had successfully defended the conviction in the state court of appeal, to file a response to the petition, and receiving that response, the high court granted that petition on Oct. 19. Lange's case was unheralded no longer.

Earlier, on the evening of Oct. 7, 2016, the attention of California Highway Patrol Officer Aaron Weikert, who was parked on the side of the road off State Route 12 in Sonoma County (essentially an urban boulevard), was drawn to a car being driven by Arthur Lange. Officer Weikert could hear music blasting from Lange's car some 200 feet away (a Vehicle Code violation, which sets a 50' limit on such noxious emanations), and then, the officer heard Lange honk his car horn four or five times for no apparent reason (another Vehicle Code violation, which, unlike certain cultural practices in sister states, limits the use of the car horn to promoting safe driving and not to express notions of personal regard or disgust). Alerted to this unlawful sonic reverie, Officer Weikert decided to conduct a traffic stop and began to follow Lange's car down the roadway. Fortunately, for posterity, Officer Weikert activated his patrol vehicle's dash mounted camera and filmed the entire episode which was to follow.

Lange soon turned right off the roadway, and Weikert followed, at which point he was about 500 feet arears. Lange turned left and Weikert did the same. Lange then came to a stop, as did Weikert, just a few feet behind Lange's car at this point. When Lange moved forward, Weikert activated his overhead red and blue flashing lights, signaling Lange to stop and yield to the officer. Nevertheless, Lange drove forward about 100 feet, turned into his driveway, drove into his attached garage and activated the device to close the door. Weikert followed up the driveway to the garage, and, as the door descended, he alighted or sprang from his prowler, and stuck his foot under the door into the safety beam which sent the door back up. Weikert then entered the garage, confronted Lange and eventually determined that Lange, who had a prior DUI arrest and conviction, had a blood-alcohol level three times the legal limit, perhaps explaining his driving while conspicuously noisy.

Charged with DUI with a prior DUI conviction (and the sound system Vehicle Code violation), Lange challenged the officer's entry into his garage without a warrant, seeking to have the evidence leading to his DUI arrest and possible conviction suppressed. The prosecution argued the warrantless entry of Lange's garage (home) was justified by the "exigent circumstance" known in Fourth Amendment parlance as "hot pursuit," trumping the need to obtain a warrant. In a series of decisions, dating back to the mid-60s, the U.S. Supreme Court had held that "hot pursuit" of a fleeing suspect (all these cases involved suspected felons) excused the requirement for obtaining a warrant to enter a residence where the police reasonably believe the suspect has taken refuge. United States v. Santana, 427 U.S. 38 (1976); Warden v. Hayden, 387 U.S. 294 (1967).

More recently in 2013 per curiam opinion, Stanton v. Sims, 571 U.S. 3 (2013), the Supreme Court summarily reversed a 9th U.S. Circuit Court of Appeals decision which had held that a La Mesa, California police officer had violated Sims' Fourth Amendment rights when he kicked in her gate and entered her yard ("curtilage") in "hot pursuit" of a suspect who had ignored the officer's order to stop and was therefore in violation of the misdemeanor offense of evading an officer (Penal Code section 148) -- precisely Lange's offense when he failed to yield to Officer Weikert at or before turning into his driveway and dropping his garage door. In Stanton, the Supreme Court noted that whether the "hot pursuit" exigency applied to pursuit of a misdemeanor suspect was not well settled or "clearly established" for purposes of federal civil rights recovery, and "that federal and state courts nationwide are sharply divided on the question whether an officer with probable cause to arrest a suspect for a misdemeanor may enter a home without a warrant while in hot pursuit of that suspect." Nonetheless, the court gave arguably favorable treatment to the leading California appellate decision on the subject, People v. Lloyd, 216 Cal. App. 3d 1425 (1989), which refused to limit the "hot pursuit" exception to felony suspects. As the high court noted, the California appellate court stated in Lloyd: "Where the pursuit into the home was based on an arrest set in motion in a public place, the fact that the offenses justifying the initial detention or arrest were misdemeanors is of no significance in determining the validity of the entry without a warrant." The Supreme Court went on to note that nothing in its jurisprudence "establishes that the seriousness of crime is equally important in cases of hot pursuit," seemingly recognizing "hot pursuit," whether of a felony or misdemeanor suspect, is a categorical exigency, regardless of other circumstances, thus excusing obtaining a warrant.

Based on this jurisprudence, the trial court denied Lange's suppression motion. (Indeed, that court was compelled to do so because the Lloyd decision is controlling authority in the state.) Lange immediately appealed this ruling to the Appellate Department of the superior court, which sustained the trial judge's order. Lange then pled nolo contendere to the DUI charge, and appealed his conviction in the Appellate Department, re-asserting this same Fourth Amendment claim, to no avail. Lange then petitioned the California Court of Appeal to take up his case and that court obliged. At that point, responsibility for representing the people of the state of California shifted from the Sonoma County district attorney to the California attorney general. In an unpublished decision issued on Oct. 30, 2019, the Court of Appeal in San Francisco rejected Lange's Fourth Amendment claim and found, consistent with Lloyd, that "hot pursuit" of a misdemeanor suspect categorically constituted an exigency which excused Officer Weikert from obtaining a warrant prior to entering Lange's garage.

In his certiorari petition, Lange argued that "hot pursuit" of a misdemeanor suspect should not categorically qualify as an exigent circumstance, excusing obtaining a warrant prior to entry of a residence. Lange urged the Supreme Court to grant the petition primarily because of the split among a number of state supreme courts and federal circuit courts over the issue. As an alternative to the categorical approach, Lange suggested that finding that exigent circumstances exists in a hot pursuit situation requires a case-by-case determination whether there exists a compelling need for official action and no time to secure a warrant, such as the destruction of evidence or threat of harm -- "pursuit plus" -- which is often lacking in cases involving misdemeanor suspects (but not invariably present in felony pursuit cases, either).

The attorney general's response to Lange's petition was a bit surprising. Doing a "one-eighty" on the position the attorney general's office took in the California Court of Appeal, one of the attorney general's deputy solicitors general, who took over as counsel of record in the Supreme Court for the deputy attorney general, who had made the prevailing argument in the state appellate court, conceded "hot pursuit" of a fleeing misdemeanor suspect was not a categorical exigency, excusing obtaining a warrant prior to entry of a residence. The deputy solicitor general wrote, "California would agree with Lange that the Court should reject a categorical rule that probable cause to arrest a fleeing suspect for a misdemeanor always authorizes a warrantless entry into a home." And, notably, the deputy solicitor general went on to write that "[w]hile there are valid arguments on both sides of the question," the California attorney general refused to make the admittedly valid argument on the side of the CHP officer, the district attorney, and the California superior and appellate courts -- that "hot pursuit," even of a misdemeanor suspect, is a categorical exigency, which the attorney general's brief acknowledged was in its own category of exigency, citing, Missouri v. McNeely, 569 U.S. 141 (2013). Rather, the attorney general suggested the Supreme Court "should consider appointing [and paying] an amicus curiae to argue in favor of the categorical approach." It is doubtful this will be necessary, as with the grant of certiorari, other prosecutors can be expected to flood, if not inundate, the court with amicus curiae merits briefs arguing in support of the categorical approach.

But, the attorney general did not stop there. The deputy solicitor general, on behalf of the attorney general, advised the Supreme Court, even in advance of, and perhaps in spite of its decision, that the attorney general would "will no longer rely on a categorical hot-pursuit exception with respect to fleeing misdemeanants in criminal cases handled by the California Department of Justice [even though trial courts are required to follow binding appellate authority to the contrary -- Lloyd]." The attorney general went on to write "[t]he Department will also communicate that position to the locally elected district attorneys and city attorneys who handle most [99.9%] criminal prosecutions and misdemeanor appeals in the California," and who are otherwise legally and ethically bound to follow controlling appellate authority in the state -- Lloyd, for now. The attorney general also promised to urge the "California courts of appeal to revisit the categorical rule, and will urge review before the California Supreme Court and urge the court to reject the categorical rule." This is a breathtaking and stunning concession.

So, what is the likely outcome in Lange, which will likely find its rightful place in a footnote in a Criminal Procedure Casebook? The overarching factor here is the invasion of the home. Justice Antonin Scalia has left a legacy of doggedly defending the home from the prying eyes, ears and noses of the police (and its dogs): "[W]hen it comes to the Fourth Amendment, the home is first among equals. At the Amendment's 'very core' stands 'the right of a man to retreat into his own home and there be free from unreasonable government intrusion.'" Florida v. Jardines, 569 U.S. 1 (2013) (or flee into his home to avert a misdemeanor arrest.). With a court teeming with Scalia acolytes, finding common ground with Court liberals, who champion Fourth Amendment privacy (see, e.g., United States v. Jones, 565 U.S. 400 (2012) (Scalia, J., unanimous; concurrence by Alito, J., joined by Ginsburg, Breyer and Kagan, JJ.), in a virtually uncontested case, one could reasonably expect a 7-2 supermajority, with only Samuel Alito and Neil Gorsuch, perhaps, supporting the police. A remand to the California appellate court to assess the record for emergent circumstances is also not out of the question.

A lingering, and far more significant question is whether the "hot pursuit" exception to the warrant requirement would also require "pursuit plus" when a felony suspect bugs out. One could reasonably expect that to be a question from the bench of the high court come February, when this case is likely to be argued. 