Supreme Court hears case on ‘hot pursuit’ exception

Last week the U.S. Supreme Court heard oral argument in Lange v. California (20-18), a case which stemmed from a driving under the influence with priors prosecution in Sonoma County. The sole issue before the court is whether "hot pursuit" of a misdemeanor suspect falls within the categorical exception to the search warrant requirement that the Court has applied to the hot pursuit of a felony suspect. United States v. Santana, 427 U.S. 38 (1976).

As every lawyer trained in criminal procedure since the Warren court "constitutional revolution" of the 50s and 60s learned, under the Fourth Amendment any search or seizure conducted without a judicially issued warrant is per se unreasonable, "subject only to a few specifically established and well delineated exceptions." One of the principal exceptions is for "exigent circumstances" or exigency, when the need to conduct an immediate search or seizure without judicial process outweighs the interests protected by the Fourth Amendment. Exigency is normally applied on case-by-case basis involving an intensive analysis of the facts at hand.

However, one category of exigency that does not require a case-by-case factual analysis is "hot pursuit." If police are engaged in a genuine hot pursuit of a suspect, meaning the continuous pursuit of a suspect after attempting a detention or arrest in a public place, the police can follow the suspect into a home in which the suspect seeks refuge or to escape, without a warrant. The handful of Supreme Court "hot pursuit" cases have all involved felony suspects, but in a civil rights case from California in 2013, the court suggested the categorical exception could apply to the hot pursuit of a misdemeanor suspect. Over time, however, a number of state and lower federal courts have questioned the application of the categorical "hot pursuit" exception in cases involving the pursuit of a misdemeanor suspect.

For all the attention Lange attracted, with a score of amicus briefs filed in the matter, ranging from a Canadian law professor to Mothers Against Drunk Driving, true hot pursuit rarely occurs in the field and the issue seldom reaches the courts. The other exceptions to the warrant requirement such as: true exigency, the so-called automobile exception, and special needs searches, are far more common in practice and often raised in litigation. But, "hot pursuit" sounds exciting, and after all, who doesn't enjoy a high speed police pursuit.

The underlying facts in Lange are somewhat unusual. In brief, one evening a CHP officer was on patrol on a major road in Sonoma County when his attention was drawn to Lange's car. The car's stereo was playing loudly and Lange was honking the horn for no apparent reason, both Vehicle Code infractions. The officer fell in behind Lange's car which shortly turned into a residential neighborhood. After proceeding a short distance, Lange stopped his car in the middle of the street for a few seconds, and then drove off. At that point the officer activated his patrol car's red and blue lights, signaling Lange to yield to the officer (a lawful detention). Lange failed to yield (a misdemeanor offense), drove a short distance, turned into his driveway and pulled into the garage. The officer followed, and as the garage door closed, the officer got out of his car, stuck his foot into the safety beam, which raised the door, and entered the garage where he encountered Lange. The officer arrested Lange for driving under the influence.

By the time Lange sought review in the Supreme Court, his motion to suppress evidence based on the warrantless entry of his residence had been denied by three courts -- the trial court (twice), the Appellate Department of the Superior Court (twice) and the California Court of Appeal (the California Supreme Court denied review). Those courts relied on a 1989 published decision of the Court of Appeal which had held that the "hot pursuit" exception applied to the pursuit of a misdemeanor suspect.

One of the unusual aspects of the Lange case once it reached the high court is that the California attorney general, who had successfully defended Lange's conviction in the Court of Appeal, reversed course and told the court that in his view the "hot pursuit" exception did not categorically apply to the pursuit of a misdemeanor suspect, and that there had to be actual exigent circumstances, over and above fresh pursuit, to excuse obtaining a search warrant before making entry of a home. The attorney general suggested that the Supreme Court engage an attorney as amicus curiae to defend the lower court rulings. The Supreme Court did just that, hiring Amanda Rice, a Jones Day attorney from its Detroit office.

The oral argument on Feb. 24, shaped up with Lange represented by his counsel, Jeffrey Fisher from Stanford Law School, supported by Samuel Harbourt, a deputy solicitor general in the California attorney general's office, versus Rice and Erica Ross, an assistant to the United States solicitor general, as amicus curiae, in defense of the lower court judgment. Each lawyer in the two-hour long oral argument put forth a different argument.

Lange's attorney essentially argued for no categorical exception, at all, that all "hot pursuits" had to involve actual exigency -- imminent escape, danger to others, or destruction of evidence -- in order to dispense with the requirement for a warrant. The California attorney general asked the court to retain the categorical exemption for pursuit of a felony suspect, but to require actual exigency analysis for pursuit of a misdemeanor suspect. Ross argued that any genuine hot pursuit constituted a categorical exemption to the warrant requirement. Finally, the Department of Justice attorney argued that there should be a "presumption" of exigency in every hot pursuit unless the defense can demonstrate otherwise.

As Justice Stephen Breyer remarked mid-way through argument, "This is a tough case," noting the "cruel trilemma" that ended up flowering into a quadrilemma once the U.S. DOJ position was made clear. None of the justices appeared to tip their hand, although the consensus seemed to be to try to get to a workable rule. None of the justices seemed inclined to draw a distinction between felony and misdemeanor suspects because the distinctions between those offenses are not clear in the field (Lange turned out to be a felon because of his prior convictions), vary from state to state, and do not reflect true exigency, i.e., many felony offenses, like white collar crimes, are not "dangerous," while many misdemeanor offenses, such as domestic violence, are.

In the end, it appears the Supreme Court might abandon the categorical exception for "hot pursuit" altogether, because that would not have much practical or real world impact and the both wings of the court's ideological perspective have put a premium on protecting the home from governmental intrusion. In its place, the court could revert to the comfortable realm of case-by-case "reasonableness" analysis under the Fourth Amendment, with something approaching a presumption or deference to police decision-making under the circumstances in determining whether entry of a home without a warrant, but in hot pursuit, was reasonable under all the circumstances.

Applying such a rule in Lange's case would be interesting. First, the court could send the case back for the California courts to apply the rule, as well as the "good faith" exception for the officer's conduct based on prior precedent, which lurks in the background and might deprive Lange of any relief. If the court applied a fact intensive "reasonableness" analysis, with some deference to the officer's decision-making, it remains as Justice Breyer noted, "a tough case."

The officer was in "hot pursuit," as he had attempted a detention in a public place and Lange had sought to evade the officer and chose to flee into his home. The officer effected entry extremely quickly, simply by stopping the garage door from closing without so much as touching it, and entered only the garage where Lange was found still in his car. Thus, the manner of entry and the scope of the "search" were reasonable and there was no excessive force. It also seems problematic that the officer could have obtained a search warrant for the residence, as in California a search warrant may issue only for a felony offense. Likewise, an arrest warrant might have been problematic because the officer did not have proof of the identity of the driver of the car, other than vehicle registration information. On the other hand, there were no traditionally recognized exigent circumstances, like imminent escape, danger to others, or destruction of evidence, and evading the officer under the circumstances was minor and not threatening. The officer could have knocked on the garage or front door and otherwise sought to have Lange speak with him without entering the home. 