Journey to the Center of the Fourth (Amendment)

In Lange v. California, 141 S. Ct. 2011 (2021), the United States Supreme Court held that police may not follow a suspected misdemeanant into his home without a warrant just because they were in "hot pursuit."

On its surface, Lange merely holds that "hot pursuit" is an exigency excusing the warrant requirement only if that pursuit is accompanied by some additional factor "show[ing] an emergency" -- such as "imminent harm" to the police or bystanders, "destruction of evidence," or the fleeing misdemeanant's escape from the home he entered to evade arrest. Id. at 2016, 2021-22, 2024.

But just as mantle and core underlie the earth's crust, there is much more going on beneath Lange's surface.

The mantle shaping Lange's contours is a product of the ebb and flow of jurisprudential viewpoints regarding the nature of the Fourth Amendment's exigency exception.

As a function of its prohibition of "unreasonable" searches and seizures, the Fourth Amendment generally empowers police to effect a warrantless arrest if they have probable cause to believe a suspect committed either (1) a felony, United States v. Watson, 423 U.S. 411 (1976) or (2) a misdemeanor in their presence, Atwater v. City of Lago Vista, 532 U.S. 318 (2001), but requires a warrant to effect an arrest inside the suspect's home -- no matter what crime, Payton v. New York, 445 U.S. 573 (1980); Welsh v. Wisconsin, 466 U.S. 740 (1984). The Fourth Amendment "draw[s] [this seemingly] firm line at the entrance to the house" because it views the home as a sanctum sanctorum. Payton, 445 U.S. at 590. It is nevertheless well settled that no warrant is needed to effect an arrest inside a suspect's home if there is an exigency that makes time of the essence, thereby rendering "unreasonable" the usual time-consuming process of obtaining a warrant. Kentucky v. King, 563 U.S. 452, 460 (2011).

The Supreme Court has recognized four different types of exigencies.

First, police may enter a home without a warrant "to assist persons who are seriously injured or threatened with such injury." Brigham City v. Stuart, 547 U.S. 398, 403 (2006).

Second, police may enter a home to "put out [a] blaze" and may thereafter "remain in [the] building for a reasonable time to investigate" its "cause." Michigan v. Tyler, 436 U.S. 499, 509-10 (1978).

Third, police may enter a home to "prevent" (1) "the imminent destruction of evidence," (2) the "risk of danger to the police" or third parties, or (3) the "suspect's escape." Minnesota v. Olson, 495 U.S. 91, 100 (1990).

Lastly, police may follow a suspect into a home when they are in "hot pursuit" of that suspect. United States v. Santana, 427 U.S. 38, 42-43 (1976); Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 298-300 (1967).

Where the justices differ is in the showing required before an exigency is deemed to excuse the need to obtain a warrant. To be sure, whether an exigency exists at all is to be assessed on the facts "in each particular case." Riley v. California, 573 U.S. 373, 402 (2014). But the Supreme Court has taken two different approaches to whether establishing the bare existence of an exigency is sufficient to excuse the warrant requirement.

Under the so-called "categorical" approach, the exigency itself is enough. That is because "the commonalities among [that] class of cases justify dispensing with the warrant requirement for all of those cases, regardless of their individual circumstances." Birchfield v. North Dakota, 136 S. Ct. 2160, 2188 (2016) (Sotomayor, J., dissenting); Mitchell v. Wisconsin, 139 S. Ct. 2525, 2540 (2019) (Thomas, J., concurring). The court has followed this approach with the emergency aid and fire squelching types of exigencies, such that the showing of the need to render emergency aid or the need to put out the fire is sufficient -- by itself and without any further showing -- to excuse the warrant requirement.

Under the so-called "case-specific" approach, a showing of an exigency alone is not enough; the police must show some additional reason why time was of the essence in that case.

Courts initially viewed exigencies based on the need to prevent the destruction of evidence or to protect persons as categorically exempt from the warrant requirement. That has started to change. In Missouri v. McNeely, 569 U.S. 141 (2013), the court held that the inevitable destruction of evidence of alcohol in the bloodstream caused by the human body's metabolic processes -- although an exigency involving the destruction of evidence -- did not dispense with the need for a warrant absent an additional showing that "obtaining a warrant [will be] impractical" in that specific case. Id. at 142, 152-156. Along similar lines, the court in Arizona v. Gant, 556 U.S. 332 (2009) and Riley altered the previously categorical "search incident to arrest" doctrine. Gant held that police arresting a suspect near a vehicle could not search the vehicle without a warrant without making a case-specific showing that the suspect could reach the vehicle or that the vehicle contained evidence related to the arrest. Riley held that police arresting a suspect could conduct a search of the arrestee's clothing and effects by virtue of that arrest, but could no longer search electronic devices they recovered without a warrant.

Lange transports the ongoing debate between the categorical and case-specific approaches into the context of an exigency created by "hot pursuit." Until Lange, the existence of a "hot pursuit" appeared categorically exempt from the warrant requirement. The most recent pronouncement on "hot pursuit" -- the 1976 decision in Santana -- recognized that exception, said nothing about the necessity for a further showing, and highlighted the categorical concern that "any delay [occasioned by obtaining a warrant] would result in destruction of evidence." Santana, 427 U.S. at 43.

The Lange majority seemingly moved to a case-specific approach -- at least when the police are pursuing fleeing misdemeanants. The majority simultaneously held that (1) Santana never adopted a categorical rule, and (2) even if Santana had, that categorical rule should be confined to fleeing felons, and not to fleeing misdemeanants because the latter's crimes were typically more "minor." Lange, 141 S. Ct. at 2018-20. Chief Justice John Roberts' concurrence took direct aim at the majority's retreat from Santana's categorical rule, faulting the majority for "hold[ing] that hot pursuit merely sets the table for other exigencies that may emerge to justify warrantless entry." Id. at 2029.

The swirling debate among the factions of the court over whether to adopt categorical or case-specific rules stems from those factions' viewpoints about what lies at the very core of the Fourth Amendment.

As Chief Justice Roberts argued in his Lange concurrence, categorical rules are often preferable because they "'provide clear guidance to law enforcement'" regarding how to act in a specific situation, and avoid "'judicial second-guessing'" when those acts are challenged months or years later. Id. at 2029, quoting Riley and Atwater.

As Justice Sonia Sotomayor explained in her Lange majority, case-specific rules are preferable because they properly focus on the conduct of the police in that particular case and, in so doing, avoid the potential overbreadth of categorical rules and the concomitant erosion of the Fourth Amendment's protection in those instances of overbreadth. Id. at 2021-22.

This tug-of-war regarding the core of the Fourth Amendment pits the theoretical purity of the Amendment's promise against the practical reality of its day-to-day implementation.

And this tug-of-war is far from over.

There will likely be further cases after Lange about the exigency exception to the warrant requirement. Will the court expand Lange's case-specific approach to hot pursuits involving fleeing felons -- or to hot pursuits involving misdemeanants for which no warrant was required at common law (that is, for misdemeanors qualifying as "pre-felonies" (because they are likely to involve someone being wounded) or entailing "affrays" or "breaches of the peace")?

There will also likely be further cases in different Fourth Amendment contexts about the wisdom of the categorical versus the case-specific approach.

And beneath them all will be the singularity at the core of all of these issues: What is the best way to effectuate the Fourth Amendment?