Supreme Court taps the brakes on 'hot pursuit' doctrine

On June 23, in one of the final decisions handed up this term, the U.S. Supreme Court decided by an 7-2 margin that the "hot pursuit" of a fleeing misdemeanor suspect, as contrasted with a felony suspect, does not constitute a categorical exception to the Fourth Amendment requirement that police obtain a warrant before entering a home, and that additional "exigent circumstances," in addition to the flight, itself, must exist to justify a warrantless entry. The decision came in Lange v. California, 2021 DJDAR 6246, which arose from a driving under the influence prosecution in Sonoma County.

The case presented a near law school exam set of facts which framed a straightforward question for the Supreme Court to decide: Does the categorical exception for hot pursuit, recognized at common law and in the court's jurisprudence apply equally to both felony and misdemeanor suspects. In the Lange case, a CHP officer followed Lange who had committed two minor Vehicle Code violations (infractions) and then failed to yield when the officer signaled Lange to pull over (a misdemeanor). Instead, Lange drove into his garage and lowered the door. But before the door fully closed, the CHP officer sprang from his cruiser and stuck his foot in the safety beam which raised the door. The officer then entered the garage and confronted Lange who showed symptoms of driving under the influence which led to his arrest and prosecution.

Consistent with the common law, for years the Supreme Court has recognized that hot pursuit of a fleeing suspect excuses the requirement that police obtain a warrant before entering a residence to arrest the suspect. United States v. Santana, 427 U.S. 38 (1976). In that decision, the court defined "hot pursuit" as where a suspect retreats into a house to defeat an arrest set in motion in a public place. However, Santana, as well as other of the Supreme Court's hot pursuit decisions, all happened to involve felony suspects. In a later decision, the court noted whether hot pursuit categorically applied to a misdemeanor suspect had not been decided. Stanton v. Sims, 571 U.S. 3 (2013) (another case from California). The state and federal courts were split on the issue.

What should have been a rather simple exercise for the Supreme Court ended up more like "Fast & Furious 9," resulting in a "hot mess" or mash-up of divergent views, jurisprudential legerdemain and even sniping between the justices.

Justice Elena Kagan authored the majority opinion which was joined in by Justices Stephen Breyer, Sonia Sotomayor, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Justice Clarence Thomas joined, except as to a part of Kagan's opinion for the court. But, Justices Kavanaugh and Thomas separately wrote concurring opinions both of which clawed back on Kagan's requirement of "flight plus" -- that other exigencies -- likely destruction of evidence, imminent harm to others, or escape from the home -- in the hot pursuit of misdemeanor suspect must exist, and the effect of this "new rule," itself. Finally, in what, for him, was a somewhat blistering opinion, Chief Justice John Roberts, joined by Justice Samuel Alito, sharply disagreed with Justice Kagan's conclusion, and took return fire in footnotes dropped by Justice Kagan in response. Although the chief justice's opinion is labeled a concurring opinion, it concurred only in the court's direction to return the case to the California courts for further proceedings.

Justice Kagan faced a somewhat daunting task in steering through the Supreme Court's Fourth Amendment hot pursuit jurisprudence and the common law in order to conclude that the hot pursuit exception does not apply categorically when an officer is pursuing a misdemeanor suspect, as opposed to a felony suspect. With respect to the court's jurisprudence, Justice Kagan seized on the fact that the court had never explicitly applied the hot pursuit exception to a fleeing misdemeanor suspect in order to conclude that the exception does not categorically apply in such an instance. Justice Thomas refused to join in this analysis, and Chief Justice Roberts flatly blasted it as skidding on being disingenuous.

Chief Justice Roberts characterized Justice Kagan's analysis and conclusion as being a "surprise" which "brushes off our slew of cases." Justice Kagan labeled Chief Justice Robert's jurisprudence analysis as "wrong" and lamented his warnings of how unworkable the "new rule" would be as "alarmist." Chief Justice Roberts countered that Justice Kagan "tut-tuts" his warning. As respects Kagan's review of the common law, even she was required to recognize that its historical development shed little light on the felony/misdemeanor distinction for purposes of the application of the hot pursuit rule. Chief Justice Roberts responded that Kagan's "attempt to dispose of this awkward reality in a footnote is unconvincing."

The essential flaw in Kagan's analysis is that it is logically and practically impossible to distinguish between felony and misdemeanor suspects for purposes of applying the hot pursuit rule -- a reality Justice Kagan maneuvered around. Justice Kagan flatly rejected applying "hot pursuit plus" to any felony suspect, without any explanation. So, the rule survives, in part -- the categorical rule applies in the case of the hot pursuit of a felony suspect. Justice Kagan did hold that the reason misdemeanor suspects are "different" for purposes of applying the rule is that misdemeanors "vary widely" and they may be "minor." But, the same can be said for felony offenses/suspects. A tax offender, albeit a felon, is not likely to be dangerous, and there are a host of felony offenses that are indeed "minor." In fact, as Chief Justice Roberts pointed out, what is a felony in one state is a misdemeanor in another and the distinction between a felony and misdemeanor in a given state may rest on factors not evident to an officer in the field. (Lange, as a repeat DUI offender, was subject to felony prosecution.) Justice Kagan wrote that "no evidence suggests that every case of misdemeanor flight poses such dangers [additional exigencies]." But, neither does the flight of every felony suspect. Ignoring this obvious reality, itself, undermines Justice Kagan's entire rationale. And her fellow justices did little to support her logic.

Justice Kavanaugh added a concurring opinion to underscore that "there is almost no daylight in practice between ... [Justice Kagan's] opinion and the Chief Justice's opinion." Kavanaugh noted that Chief Justice Roberts had argued that flight alone, even by a misdemeanor suspect, constituted an "exigency," excusing obtaining a warrant, because such flight will "almost always [nine times out of 10] also involve a recognized exigent circumstance, such as risk of escape, destruction of evidence or harm to others." Justice Kavanaugh concluded that the court's opinion had left untouched the hot pursuit rule as respects a fleeing felon.

Justice Thomas went back to the common law well to demonstrate that while the categorical rule might not apply to a misdemeanor suspect, it's history suggested other, related categorical exceptions to the warrant requirement, regardless of the nature of the underlying or suspected offense -- in the case of a person who is arrested and escapes, pursuit of a person who committed "an affray" or breach of the peace, and "pre-felonies" -- an assault that could lead to injuries elevating the offense to a felony. Justice Thomas went on to add that the "brass ring" of exclusion of evidence should not be available to a defendant who has fled from arrest. Justice Thomas also noted that the exclusionary rule ought not apply to police conduct which was seemingly lawful when it occurred -- the so-called "good faith" rule," as here. See Davis v. United States, 564 U.S. 357. (2011). Justice Thomas also argued that a defendant should not benefit from his own misconduct -- fleeing from the police. Indeed, here, had Lange yielded the officer on the street, as he was legally required to do so, he would have inevitably been arrested for DUI.

In his opinion, Chief Justice John Roberts' argued that flight, itself, is "never innocuous" and is a sufficient exigency to justify a warrantless entry, regardless of the nature of the underlying offense, which is, itself, arbitrary and often difficult to determine in the field. The chief justice chided the court's rule as being dangerous and unworkable ("famously dangerous to apply"), and would serve to reward a defendant who intentionally reduces and forfeits their privacy by fleeing into a residence. In the end, the chief justice agreed that the case should be remanded to allow the state courts to grapple with application of this "new rule."

So, did the Lange decision really change anything, as a practical matter? Likely not. "Hot pursuit," for all of its "entertaining" aspects, is seldom invoked in the courts. It is a footnote in most criminal procedure casebooks. As admitted by Lange's counsel at oral argument, and noted in the various opinions, in nine out of 10 cases involving the hot pursuit of a misdemeanor suspect, there will be additional exigencies present. As to Lange, he is unlikely to benefit from exclusion of evidence in his case as this "new rule" would not apply to the officer's conduct, the prosecution could likely demonstrate that his is merely one of those nine out of 10 cases, and the evidence of his DUI would inevitably have been discovered. 