Lange v. California

(Slip Opinion) OCTOBER TERM, 2020 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

LANGE v. CALIFORNIA

CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA,

FIRST APPELLATE DIVISION

No. 20–18. Argued February 24, 2021—Decided June 23, 2021

This case arises from a police officer’s warrantless entry into petitioner

Arthur Lange’s garage. Lange drove by a California highway patrol

officer while playing loud music and honking his horn. The officer be-

gan to follow Lange and soon after turned on his overhead lights to

signal that Lange should pull over. Rather than stopping, Lange drove

a short distance to his driveway and entered his attached garage. The

officer followed Lange into the garage. He questioned Lange and, after

observing signs of intoxication, put him through field sobriety tests. A

later blood test showed that Lange’s blood-alcohol content was three

times the legal limit.

The State charged Lange with the misdemeanor of driving under the

influence. Lange moved to suppress the evidence obtained after the

officer entered his garage, arguing that the warrantless entry violated

the Fourth Amendment. The Superior Court denied Lange’s motion,

and its appellate division affirmed. The California Court of Appeal

also affirmed. It concluded that Lange’s failure to pull over when the

officer flashed his lights created probable cause to arrest Lange for the

misdemeanor of failing to comply with a police signal. And it stated

that Lange could not defeat an arrest begun in a public place by re-

treating into his home. The pursuit of a suspected misdemeanant, the

court held, is always permissible under the exigent-circumstances ex-

ception to the warrant requirement. The California Supreme Court

denied review.

Held: Under the Fourth Amendment, pursuit of a fleeing misdemeanor

suspect does not always—that is, categorically—justify a warrantless

entry into a home. Pp. 3–16.

(a) The Court’s Fourth Amendment precedents counsel in favor of a

2 LANGE v. CALIFORNIA

Syllabus

case-by-case assessment of exigency when deciding whether a sus-

pected misdemeanant’s flight justifies a warrantless home entry. The

Fourth Amendment ordinarily requires that a law enforcement officer

obtain a judicial warrant before entering a home without permission.

Riley v. California, 573 U. S. 373, 382. But an officer may make a

warrantless entry when “the exigencies of the situation,” considered in

a case-specific way, create “a compelling need for official action and no

time to secure a warrant.” Kentucky v. King, 563 U. S. 452, 460; Mis-

souri v. McNeely, 569 U. S. 141, 149. The Court has found that such

exigencies may exist when an officer must act to prevent imminent

injury, the destruction of evidence, or a suspect’s escape.

The amicus contends that a suspect’s flight always supplies the exi-

gency needed to justify a warrantless home entry and that the Court

endorsed such a categorical approach in United States v. Santana, 427

U. S. 38. The Court disagrees. In upholding a warrantless entry made

during a “hot pursuit” of a felony suspect, the Court stated that San-

tana’s “act of retreating into her house” could “not defeat an arrest”

that had “been set in motion in a public place.” Id., at 42–43. Even

assuming that Santana treated fleeing-felon cases categorically, that

statement still does not establish a flat rule permitting warrant-

less home entry whenever a police officer pursues a fleeing misde-

meanant. Santana did not resolve the issue of misdemeanor pursuit;

as the Court noted in a later case, “the law regarding warrantless en-

try in hot pursuit of a fleeing misdemeanant is not clearly es-

tablished” one way or the other. Stanton v. Sims, 571 U. S. 3, 8, 10.

Misdemeanors run the gamut of seriousness, and they may be mi-

nor. States tend to apply the misdemeanor label to less violent and

less dangerous crimes. The Court has held that when a minor offense

(and no flight) is involved, police officers do not usually face the kind

of emergency that can justify a warrantless home entry. See Welsh v.

Wisconsin, 466 U. S. 740, 742–743. Add a suspect’s flight and the cal-

culus changes—but not enough to justify a categorical rule. In many

cases, flight creates a need for police to act swiftly. But no evidence

suggests that every case of misdemeanor flight creates such a need.

The Court’s Fourth Amendment precedents thus point toward as-

sessing case by case the exigencies arising from misdemeanants’ flight.

When the totality of circumstances shows an emergency—a need to act

before it is possible to get a warrant—the police may act without wait-

ing. Those circumstances include the flight itself. But pursuit of a

misdemeanant does not trigger a categorical rule allowing a warrant-

less home entry. Pp. 3–12.

(b) The common law in place at the Constitution’s founding similarly

does not support a categorical rule allowing warrantless home entry

whenever a misdemeanant flees. Like the Court’s modern precedents,

Cite as: 594 U. S. ____ (2021) 3

Syllabus

the common law afforded the home strong protection from government

intrusion and it generally required a warrant before a government of-

ficial could enter the home. There was an oft-discussed exception: An

officer, according to the common-law treatises, could enter a house to

pursue a felon. But in the misdemeanor context, officers had more

limited authority to intrude on a fleeing suspect’s home. The commen-

tators generally agreed that the authority turned on the circum-

stances; none suggested a rule authorizing warrantless entry in every

misdemeanor-pursuit case. In short, the common law did not have—

and does not support—a categorical rule allowing warrantless home

entry when a suspected misdemeanant flees. Pp. 12–16.

Vacated and remanded.

KAGAN, J., delivered the opinion of the Court, in which BREYER, SO-

TOMAYOR, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined, and in which

THOMAS, J., joined as to all but Part II–A. KAVANAUGH, J., filed a concur-

ring opinion. THOMAS, J., filed an opinion concurring in part and concur-

ring in the judgment, in which KAVANAUGH, J., joined as to Part II. ROB-

ERTS, C. J., filed an opinion concurring in the judgment, in which ALITO,

J., joined.

Cite as: 594 U. S. ____ (2021) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order that

corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 20–18

_________________

ARTHUR GREGORY LANGE, PETITIONER v.

CALIFORNIA

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF

CALIFORNIA, FIRST APPELLATE DISTRICT

[June 23, 2021]

JUSTICE KAGAN delivered the opinion of the Court.

The Fourth Amendment ordinarily requires that police

officers get a warrant before entering a home without per-

mission. But an officer may make a warrantless entry

when “the exigencies of the situation” create a compelling

law enforcement need. Kentucky v. King, 563 U. S. 452, 460

(2011). The question presented here is whether the pursuit

of a fleeing misdemeanor suspect always—or more legally

put, categorically—qualifies as an exigent circumstance.

We hold it does not. A great many misdemeanor pursuits

involve exigencies allowing warrantless entry. But

whether a given one does so turns on the particular facts of

the case.

I

This case began when petitioner Arthur Lange drove past

a California highway patrol officer in Sonoma. Lange, it is

fair to say, was asking for attention: He was listening to

loud music with his windows down and repeatedly honking

his horn. The officer began to tail Lange, and soon after-

ward turned on his overhead lights to signal that Lange

should pull over. By that time, though, Lange was only

2 LANGE v. CALIFORNIA

Opinion of the Court

about a hundred feet (some four-seconds drive) from his

home. Rather than stopping, Lange continued to his drive-

way and entered his attached garage. The officer followed

Lange in and began questioning him. Observing signs of

intoxication, the officer put Lange through field sobriety

tests. Lange did not do well, and a later blood test showed

that his blood-alcohol content was more than three times

the legal limit.

The State charged Lange with the misdemeanor of driv-

ing under the influence of alcohol, plus a (lower-level) noise

infraction. Lange moved to suppress all evidence obtained

after the officer entered his garage, arguing that the war-

rantless entry had violated the Fourth Amendment. The

State contested the motion. It contended that the officer

had probable cause to arrest Lange for the misdemeanor of

failing to comply with a police signal. See, e.g., Cal. Veh.

Code Ann. §2800(a) (West 2015) (making it a misdemeanor

to “willfully fail or refuse to comply with a lawful order, sig-

nal, or direction of a peace officer”). And it argued that the

pursuit of a suspected misdemeanant always qualifies as an

exigent circumstance authorizing a warrantless home en-

try. The Superior Court denied Lange’s motion, and its ap-

pellate division affirmed.

The California Court of Appeal also affirmed, accepting

the State’s argument in full. 2019 WL 5654385, *1 (2019).

In the court’s view, Lange’s “fail[ure] to immediately pull

over” when the officer flashed his lights created probable

cause to arrest him for a misdemeanor. Id., at *7. And a

misdemeanor suspect, the court stated, could “not defeat an

arrest which has been set in motion in a public place” by

“retreat[ing] into” a house or other “private place.” See id.,

at *6–*8 (internal quotation marks omitted). Rather, an

“officer’s ‘hot pursuit’ into the house to prevent the suspect

from frustrating the arrest” is always permissible under the

exigent-circumstances “exception to the warrant require-

ment.” Id., at *8 (some internal quotation marks omitted).

Cite as: 594 U. S. ____ (2021) 3

Opinion of the Court

That flat rule resolved the matter: “Because the officer was

in hot pursuit” of a misdemeanor suspect, “the officer’s war-

rantless entry into [the suspect’s] driveway and garage

[was] lawful.” Id., at *9. The California Supreme Court

denied review.

Courts are divided over whether the Fourth Amendment

always permits an officer to enter a home without a warrant

in pursuit of a fleeing misdemeanor suspect. Some courts

have adopted such a categorical rule, while others have re-

quired a case-specific showing of exigency.1 We granted cer-

tiorari, 592 U. S. ___ (2020), to resolve the conflict. Because

California abandoned its defense of the categorical rule ap-

plied below in its response to Lange’s petition, we appointed

Amanda Rice as amicus curiae to defend the Court of Ap-

peal’s judgment. She has ably discharged her responsibili-

ties.

II

The Fourth Amendment provides that “[t]he right of the

people to be secure in their persons, houses, papers, and ef-

fects, against unreasonable searches and seizures, shall not

be violated.” As that text makes clear, “the ultimate touch-

stone of the Fourth Amendment is ‘reasonableness.’ ”

Brigham City v. Stuart, 547 U. S. 398, 403 (2006). That

——————

1 Compare, e.g., 2019 WL 5654385, *7–*8 (case below) (applying a cat-

egorical rule); Bismarck v. Brekhus, 2018 ND 84, ¶ 27, 908 N. W. 2d 715,

719–720 (same); Commonwealth v. Jewett, 471 Mass. 624, 634–635, 31

N. E. 3d 1079, 1089 (2015) (same); People v. Wear, 229 Ill. 2d 545, 568,

571, 893 N. E. 2d 631, 644–646 (2008) (same); Middletown v. Flinchum,

95 Ohio St. 3d 43, 44–45, 765 N. E. 2d 330, 332 (2002) (same); State v.

Ricci, 144 N. H. 241, 244–245, 739 A. 2d 404, 407–408 (1999) (same),

with, e.g., State v. Markus, 211 So. 3d 894, 906–907 (Fla. 2017) (requiring

a case-specific showing); Mascorro v. Billings, 656 F. 3d 1198, 1207

(CA10 2011) (same); Butler v. State, 309 Ark. 211, 216–217, 829 S. W. 2d

412, 415 (1992) (same); State v. Bolte, 115 N. J. 579, 597–598, 560 A. 2d

644, 654–655 (1989) (same); see also Stanton v. Sims, 571 U. S. 3, 6–7

(2013) (per curiam) (noting the split).

4 LANGE v. CALIFORNIA

Opinion of the Court

standard “generally requires the obtaining of a judicial war-

rant” before a law enforcement officer can enter a home

without permission. Riley v. California, 573 U. S. 373, 382

(2014) (internal quotation marks omitted). But not always:

The “warrant requirement is subject to certain exceptions.”

Brigham City, 547 U. S., at 403.

One important exception is for exigent circumstances. It

applies when “the exigencies of the situation make the

needs of law enforcement so compelling that [a] warrantless

search is objectively reasonable.” King, 563 U. S., at 460

(internal quotation marks omitted). The exception enables

law enforcement officers to handle “emergenc[ies]”—situa-

tions presenting a “compelling need for official action and

no time to secure a warrant.” Riley, 573 U. S., at 402; Mis-

souri v. McNeely, 569 U. S. 141, 149 (2013). Over the years,

this Court has identified several such exigencies. An of-

ficer, for example, may “enter a home without a warrant to

render emergency assistance to an injured occupant[,] to

protect an occupant from imminent injury,” or to ensure his

own safety. Brigham City, 547 U. S., at 403; Riley, 573

U. S., at 388. So too, the police may make a warrantless

entry to “prevent the imminent destruction of evidence” or

to “prevent a suspect’s escape.” Brigham City, 547 U. S., at

403; Minnesota v. Olson, 495 U. S. 91, 100 (1990) (internal

quotation marks omitted). In those circumstances, the de-

lay required to obtain a warrant would bring about “some

real immediate and serious consequences”—and so the ab-

sence of a warrant is excused. Welsh v. Wisconsin, 466 U. S.

740, 751 (1984) (quoting McDonald v. United States, 335

U. S. 451, 460 (1948) (Jackson, J., concurring)).

Our cases have generally applied the exigent-circumstances

exception on a “case-by-case basis.” Birchfield v. North Da-

kota, 579 U. S. 438, ___ (2016) (slip op., at 16). The excep-

tion “requires a court to examine whether an emergency

justified a warrantless search in each particular case.” Ri-

ley, 573 U. S., at 402. Or put more curtly, the exception is

Cite as: 594 U. S. ____ (2021) 5

Opinion of the Court

“case-specific.” Id., at 388. That approach reflects the na-

ture of emergencies. Whether a “now or never situation”

actually exists—whether an officer has “no time to secure a

warrant”—depends upon facts on the ground. Id., at 391

(internal quotation marks omitted); McNeely, 569 U. S., at

149 (internal quotation marks omitted). So the issue, we

have thought, is most naturally considered by “look[ing] to

the totality of circumstances” confronting the officer as he

decides to make a warrantless entry. Id., at 149.

The question here is whether to use that approach, or in-

stead apply a categorical warrant exception, when a sus-

pected misdemeanant flees from police into his home. Un-

der the usual case-specific view, an officer can follow the

misdemeanant when, but only when, an exigency—for ex-

ample, the need to prevent destruction of evidence—allows

insufficient time to get a warrant. The appointed amicus

asks us to replace that case-by-case assessment with a flat

(and sweeping) rule finding exigency in every case of mis-

demeanor pursuit. In her view, those “entries are categori-

cally reasonable, regardless of whether” any risk of harm

(like, again, destruction of evidence) “materializes in a par-

ticular case.” Brief for Court-Appointed Amicus Curiae 31.

The fact of flight from the officer, she says, is itself enough

to justify a warrantless entry. (The principal concurrence

agrees.) To assess that position, we look (as we often do in

Fourth Amendment cases) both to this Court’s precedents

and to the common-law practices familiar to the Framers.

A

The place to start is with our often-stated view of the con-

stitutional interest at stake: the sanctity of a person’s living

space. “[W]hen it comes to the Fourth Amendment, the

home is first among equals.” Florida v. Jardines, 569 U. S.

1, 6 (2013). At the Amendment’s “very core,” we have said,

“stands the right of a man to retreat into his own home and

there be free from unreasonable government intrusion.”

6 LANGE v. CALIFORNIA

Opinion of the Court

Collins v. Virginia, 584 U. S. ___, ___ (2018) (slip op., at 5)

(internal quotation marks omitted). Or again: “Freedom”

in one’s own “dwelling is the archetype of the privacy pro-

tection secured by the Fourth Amendment”; conversely,

“physical entry of the home is the chief evil against which

[it] is directed.” Payton v. New York, 445 U. S. 573, 585,

587 (1980) (internal quotation marks omitted). The

Amendment thus “draw[s] a firm line at the entrance to the

house.” Id., at 590. What lies behind that line is of course

not inviolable. An officer may always enter a home with a

proper warrant. And as just described, exigent circum-

stances allow even warrantless intrusions. See ibid.; supra,

at 4. But the contours of that or any other warrant excep-

tion permitting home entry are “jealously and carefully

drawn,” in keeping with the “centuries-old principle” that

the “home is entitled to special protection.” Georgia v. Ran-

dolph, 547 U. S. 103, 109, 115 (2006) (internal quotation

marks omitted); see Caniglia v. Strom, 593 U. S. ___, ___

(2021) (slip op., at 4) (“[T]his Court has repeatedly declined

to expand the scope” of “exceptions to the warrant require-

ment to permit warrantless entry into the home”). So we

are not eager—more the reverse—to print a new permission

slip for entering the home without a warrant.

The amicus argues, though, that we have already created

the rule she advocates. In United States v. Santana, 427

U. S. 38 (1976), the main case she relies on, police officers

drove to Dominga Santana’s house with probable cause to

think that Santana was dealing drugs, a felony under the

applicable law. When the officers pulled up, they saw San-

tana standing in her home’s open doorway, some 15 feet

away. As they got out of the van and yelled “police,” San-

tana “retreated into [the house’s] vestibule.” Id., at 40. The

officers followed her in, and discovered heroin. We upheld

the warrantless entry as one involving a police “hot pur-

suit,” even though the chase “ended almost as soon as it be-

gan.” Id., at 43. Citing “a realistic expectation that any

Cite as: 594 U. S. ____ (2021) 7

Opinion of the Court

delay would result in destruction of evidence,” we recog-

nized the officers’ “need to act quickly.” Id., at 42–43. But

we framed our holding in broader terms: Santana’s “act of

retreating into her house,” we stated, could “not defeat an

arrest” that had “been set in motion in a public place.” Ibid.

The amicus takes that statement to support a flat rule per-

mitting warrantless home entry when police officers (with

probable cause) are pursuing any suspect—whether a felon

or a misdemeanant. See Brief for Amicus Curiae 11, 26.

For support, she points to a number of later decisions de-

scribing Santana in dicta as allowing warrantless home en-

tries when police are “in ‘hot pursuit’ of a fugitive” or “a

fleeing suspect.” E.g., Steagald v. United States, 451 U. S.

204, 221 (1981); King, 563 U. S., at 460. The concurrence

echoes her arguments.

We disagree with that broad understanding of Santana,

as we have suggested before. In rejecting the amicus’s view,

we see no need to consider Lange’s counterargument that

Santana did not establish any categorical rule—even one

for fleeing felons. See Brief for Petitioner 7, 25 (contending

that Santana is “entirely consistent” with “case-by-case ex-

igency analysis” because the Court “carefully based [its]

holding on [the] specific facts” and “circumstances”). As-

suming Santana treated fleeing-felon cases categorically

(that is, as always presenting exigent circumstances allow-

ing warrantless entry), see, e.g., Stanton v. Sims, 571 U. S.

3, 8 (2013) (per curiam); McNeely, 569 U. S., at 149; King,

563 U. S., at 450, it still said nothing about fleeing misde-

meanants. We said as much in Stanton, when we approved

qualified immunity for an officer who had pursued a sus-

pected misdemeanant into a home. Describing the same

split of authority we took this case to address, we stated

that “the law regarding warrantless entry in hot pursuit of

a fleeing misdemeanant is not clearly established” (so that

the officer could not be held liable for damages). 571 U. S.,

at 6, 10. In other words, we found that neither Santana nor

8 LANGE v. CALIFORNIA

Opinion of the Court

any other decision had resolved the matter one way or the

other. And we left things in that unsettled state. See 571

U. S., at 10. Santana, we noted, addressed a police pursuit

“involv[ing] a felony suspect,” 571 U. S., at 9; whether the

same approach governed a misdemeanor chase was an is-

sue for a future case.

Key to resolving that issue are two facts about misde-

meanors: They vary widely, but they may be (in a word)

“minor.” Welsh, 466 U. S., at 750. In California and else-

where, misdemeanors run the gamut of seriousness. As the

amicus notes, some involve violence. California, for exam-

ple, classifies as misdemeanors various forms of assault.

See Cal. Penal Code Ann. §241 (West Cum. Supp. 2021);

Brief for Amicus Curiae 15a–16a. And across the country,

“many perpetrators of domestic violence are charged with

misdemeanors,” despite “the harmfulness of their conduct.”

Voisine v. United States, 579 U. S. 686, ___ (2016) (slip op.,

at 1). So “a ‘felon’ is” not always “more dangerous than a

misdemeanant.” Tennessee v. Garner, 471 U. S. 1, 14

(1985). But calling an offense a misdemeanor usually limits

prison time to one year. See 1 W. LaFave, J. Israel, N. King,

& O. Kerr, Criminal Procedure §1.8(c) (4th ed. Supp. 2020).

States thus tend to apply that label to less violent and less

dangerous crimes. In California, it is a misdemeanor to lit-

ter on a public beach. See Cal. Penal Code Ann. §374.7(a)

(2020). And to “negligently cut” a plant “growing upon pub-

lic land.” §384a(a)(2), (f ). And to “willfully disturb[ ] an-

other person by loud and unreasonable noise.” §415(2).

And (last one) to “artificially color[ ] any live chicks [or] rab-

bits.” §599(b). In forbidding such conduct, California is no

outlier. Most States count as misdemeanors such offenses

as traffic violations, public intoxication, and disorderly con-

duct. See, e.g., Tex. Transp. Code Ann. §545.413(a), (d)

(West 2011) (driving without a seatbelt); Ill. Comp. Stat.,

ch. 610, §90/1 (West 2018) (drinking alcohol in a railroad

Cite as: 594 U. S. ____ (2021) 9

Opinion of the Court

car); Ark. Code Ann. §5–71–207(a)(3), (b) (2016) (using ob-

scene language likely to promote disorder). So the amicus’s

(and concurrence’s) rule would cover lawbreakers of every

type, including quite a few hard to think alarming.

This Court has held that when a minor offense alone is

involved, police officers do not usually face the kind of emer-

gency that can justify a warrantless home entry. In Welsh,

officers responded to a call about a drunk driver only to dis-

cover he had abandoned his vehicle and walked home. See

466 U. S., at 742–743. So no police pursuit was necessary,

hot or otherwise. The officers just went to the driver’s

house, entered without a warrant, and arrested him for a

“nonjailable” offense. Ibid. The State contended that exi-

gent circumstances supported the entry because the

driver’s “blood-alcohol level might have dissipated while the

police obtained a warrant.” Id., at 754. We rejected that

argument on the ground that the driver had been charged

with only a minor offense. “[T]he gravity of the underlying

offense,” we reasoned, is “an important factor to be consid-

ered when determining whether any exigency exists.” Id.,

at 753. “[W]hen only a minor offense has been committed”

(again, without any flight), there is reason to question

whether a compelling law enforcement need is present; so

it is “particularly appropriate” to “hesitat[e] in finding exi-

gent circumstances.” Id., at 750. And we concluded:

“[A]pplication of the exigent-circumstances exception in the

context of a home entry should rarely be sanctioned when

there is probable cause to believe that only a minor offense”

is involved. Id., at 753.2

——————

2 The concurrence is wrong to say that Welsh applies only to nonjailable

offenses, and not to minor crimes that are labeled misdemeanors. See

post, at 12–13 (ROBERTS, C. J., concurring in judgment). No less than

four times, Welsh framed its holding as applying to “minor offenses” gen-

erally. 466 U. S., at 750, 752–753. (By contrast, the word “nonjailable”

does not appear in its legal analysis.) The decision cited lower court cases

10 LANGE v. CALIFORNIA

Opinion of the Court

Add a suspect’s flight and the calculus changes—but not

enough to justify the amicus’s categorical rule. We have no

doubt that in a great many cases flight creates a need for

police to act swiftly. A suspect may flee, for example, be-

cause he is intent on discarding evidence. Or his flight may

show a willingness to flee yet again, while the police await

a warrant. But no evidence suggests that every case of mis-

demeanor flight poses such dangers. Recall that misde-

meanors can target minor, non-violent conduct. See supra,

at 8–9. Welsh held that when that is so, officers can proba-

bly take the time to get a warrant. And at times that will

be true even when a misdemeanant has forced the police to

pursue him (especially given that “pursuit” may cover just

a few feet of ground, see supra, at 6). Those suspected of

minor offenses may flee for innocuous reasons and in non-

threatening ways. Consider from the casebooks: the man

with a mental disability who, in response to officers asking

him about “fidgeting with [a] mailbox,” retreated in “a hur-

ried manner” to his nearby home. Carroll v. Ellington, 800

F. 3d 154, 162 (CA5 2015). Or the teenager “driving with-

out taillights” who on seeing a police signal “did not stop

but drove two blocks to his parents’ house, ran inside, and

hid in the bathroom.” Mascorro v. Billings, 656 F. 3d 1198,

1202 (CA10 2011). In such a case, waiting for a warrant is

unlikely to hinder a compelling law enforcement need. See

id., at 1207 (“The risk of flight or escape was somewhere

between low and nonexistent[,] there was no evidence

which could have potentially been destroyed[,] and there

——————

prohibiting warrantless home entries when the defendant had commit-

ted a misdemeanor. See id., at 752. And its essential rationale applies

to all minor crimes, however labeled. As the Court stated (quoting an

earlier Justice Jackson opinion): It would “display[ ] a shocking lack of

all sense of proportion” to say that “private homes, even quarters in a

tenement, may be indiscriminately invaded at the discretion of any sus-

picious police officer engaged in following up offenses that involve no vi-

olence or threats of it.” Id., at 751 (quoting McDonald v. United States,

335 U. S. 451, 459 (1948) (concurring opinion)).

Cite as: 594 U. S. ____ (2021) 11

Opinion of the Court

were no officer or public safety concerns”). Those non-

emergency situations may be atypical. But they reveal the

overbreadth—fatal in this context—of the amicus’s (and

concurrence’s) rule, which would treat a dangerous offender

and the scared teenager the same. In misdemeanor cases,

flight does not always supply the exigency that this Court

has demanded for a warrantless home entry.

Our Fourth Amendment precedents thus point toward

assessing case by case the exigencies arising from misde-

meanants’ flight. That approach will in many, if not most,

cases allow a warrantless home entry. When the totality of

circumstances shows an emergency—such as imminent

harm to others, a threat to the officer himself, destruction

of evidence, or escape from the home—the police may act

without waiting. And those circumstances, as described

just above, include the flight itself.3 But the need to pursue

a misdemeanant does not trigger a categorical rule allowing

home entry, even absent a law enforcement emergency.

When the nature of the crime, the nature of the flight, and

——————

3 Given that our rule allows warrantless home entry when emergencies

like these exist, we think the concurrence’s alarmism misplaced. See,

e.g., post, at 2 (opinion of ROBERTS, C. J.) (bewailing “danger[ ]” and “ab-

surd[ity]”). The concurrence spends most of its time worrying about

cases in which there are exigencies above and beyond the flight itself:

when, for example, the fleeing misdemeanant will “get a gun and take

aim from inside” or “flush drugs down the toilet.” Post, at 2, 8. But again:

When an officer reasonably believes those exigencies exist, he does not

need a categorical misdemeanor-pursuit rule to justify a warrantless

home entry. (And contrary to the concurrence’s under-explained sugges-

tion, see post, at 7–8, assessing exigencies is no harder in this context

than in any other.) The only cases in which we and the concurrence reach

a different result are cases involving flight alone, without exigencies like

the destruction of evidence, violence to others, or escape from the home.

It is telling that—although they are our sole disagreement—the concur-

rence hardly talks about those “flight alone” cases. Apparently, it taxes

even the concurrence to justify as an “exigency” a warrantless entry

based only on a misdemeanant’s prior retreat into his home—when the

police officers do not reasonably believe anything harmful will happen in

the time it takes to get a warrant.

12 LANGE v. CALIFORNIA

Opinion of the Court

surrounding facts present no such exigency, officers must

respect the sanctity of the home—which means that they

must get a warrant.

B

The common law in place at the Constitution’s founding

leads to the same conclusion. That law, we have many

times said, may be “instructive in determining what sorts

of searches the Framers of the Fourth Amendment re-

garded as reasonable.” E.g., Steagald, 451 U. S., at 217.

And the Framers’ view provides a baseline for our own day:

The Amendment “must provide at a minimum the degree of

protection it afforded when it was adopted.” United States

v. Jones, 565 U. S. 400, 411 (2012); see Jardines, 569 U. S.,

at 5. Sometimes, no doubt, the common law of the time is

hard to figure out: The historical record does not reveal a

limpid legal rule. See, e.g., Payton, 445 U. S., at 592–597.

Here, we find it challenging to map every particular of the

common law’s treatment of warrantless home entries. But

the evidence is clear on the question before us: The common

law did not recognize a categorical rule enabling such an

entry in every case of misdemeanor pursuit.

Like our modern precedents, the common law afforded

the home strong protection from government intrusion. As

this Court once wrote: “The zealous and frequent repetition

of the adage that a ‘man’s house is his castle’ made it abun-

dantly clear that both in England and in the Colonies ‘the

freedom of one’s house’ was one of the most vital elements

of English liberty.” Id., at 596–597 (footnote omitted); see

Semayne’s Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 195

(K. B. 1604) (“[T]he house of every one is as to him as his

castle and fortress, as well for his defen[s]e against injury

and violence, as for his repose” (footnote omitted)); 3 W.

Blackstone, Commentaries on the Laws of England 288

(1768) (“[E]very man’s house is looked upon by the law to

Cite as: 594 U. S. ____ (2021) 13

Opinion of the Court

be his castle of defen[s]e and asylum”).4 To protect that in-

terest, “prominent law lords, the Court of Common Pleas,

the Court of King’s Bench, Parliament,” and leading trea-

tise writers all “c[a]me to embrace” the “understanding”

that generally “a warrant must issue” before a government

official could enter a house. Donohue, The Original Fourth

Amendment, 83 U. Chi. L. Rev. 1181, 1238–1239 (2016); see

Davies, Recovering the Original Fourth Amendment, 98

Mich. L. Rev. 547, 642–646 (1999). That did not mean the

Crown got the message; its officers often asserted power to

intrude into any home they pleased—thus adding to the col-

onists’ list of grievances. See Steagald, 451 U. S., at 220.

But the law on the books offered a different model: “To enter

a man’s house” without a proper warrant, Lord Chief Jus-

tice Pratt proclaimed in 1763, is to attack “the liberty of the

subject” and “destroy the liberty of the kingdom.” Huckle v.

Money, 2 Wils. K. B. 206, 207, 95 Eng. Rep. 768, 769 (K. B.

1763). That was the idea behind the Fourth Amendment.

There was an oft-discussed exception: An officer, accord-

ing to the day’s treatises, could enter a house to pursue a

felon. The felony category then was a good deal narrower

than now. Many modern felonies were “classified as misde-

meanors” at common law, with the felony label mostly re-

served for crimes “punishable by death.” Garner, 471 U. S.,

at 13–14; see 4 W. Blackstone, Commentaries on the Laws

of England 98 (1791) (Blackstone). In addressing those se-

rious crimes, the law “allow[ed of] extremities” to meet “ne-

——————

4 In a 1763 Parliamentary debate, about searches made to enforce a

tax, William Pitt the Elder orated as follows: “The poorest man may in

his cottage bid defiance to all the forces of the Crown. It may be frail; its

roof may shake; the wind may blow through it; the storm may enter; the

rain may enter; but the King of England cannot enter—all his force dares

not cross the threshold of the ruined tenement!” Miller v. United States,

357 U. S. 301, 307, and n. 7 (1958) (citing The Oxford Dictionary of Quo-

tations 379 (2d ed. 1953); 15 T. Hansard, Parliamentary History of Eng-

land, col. 1307 (1813)).

14 LANGE v. CALIFORNIA

Opinion of the Court

cessity.” R. Burn, The Justice of the Peace, and Parish Of-

ficer 86 (6th ed. 1758). So if a person suspected “upon prob-

able grounds” of a felony “fly and take house,” Sir Matthew

Hale opined, then “the constable may break open the door,

tho he have no warrant.” 2 Pleas of the Crown 91–92 (1736)

(Hale). Sergeant William Hawkins set out a more restric-

tive rule in his widely read treatise. He wrote that a con-

stable, “with or without a warrant,” could “break open

doors” if “pursu[ing]” a person “known to have committed”

a felony—but not if the person was only “under a probable

suspicion.” 2 Pleas of the Crown 138–139 (1787) (Hawkins).

On the other hand, Sir William Blackstone went broader

than Hale. A constable, he thought, could “break open

doors”—no less than “upon a justice’s warrant”—if he had

“probable suspicion [to] arrest [a] felon,” even absent flight

or pursuit. Blackstone 292. The commentators thus dif-

fered on the scope of the felony exception to the warrant

requirement. But they agreed on one thing: It was indeed

a felony exception. All their rules applied to felonies as a

class, and to no other whole class of crimes.

In the misdemeanor context, officers had more limited

authority to intrude on a fleeing suspect’s home.5 Once

again, some of the specifics are uncertain, and commenta-

tors did not always agree with each other. But none sug-

gested any kind of all-misdemeanor-flight rule. Instead,

their approval of entry turned on the circumstances. One

set of cases involved what might be called pre-felonies.

Blackstone explained that “break[ing] open doors” was al-

lowable not only “in case of [a] felony” but also in case of “a

dangerous wounding whereby [a] felony is likely to ensue.”

Ibid. In other words, the felony rule extended to crimes that

would become felonies if the victims died. See Hale 94.6

——————

5 Note, though, that if a person had already been arrested and then

escaped from custody, an officer could always search for him at home.

See 2 W. Hawkins, Pleas of the Crown 87 (1721).

6 Both felonies and pre-felonies justified the common law’s “hue and

Cite as: 594 U. S. ____ (2021) 15

Opinion of the Court

Another set of cases involved crimes, mostly violent them-

selves, liable to provoke felonious acts. Often called “af-

frays” or “breaches of the peace,” a typical example was “the

fighting of two or more persons” to “the terror of his maj-

esty’s subjects.” Blackstone 145, 150.7 Because that con-

duct created a “danger of felony”—because when it oc-

curred, “there is likely to be manslaughter or bloodshed

committed”—“the constable may break open the doors to

keep the peace.” Hale 90, 95 (emphasis deleted); see Haw-

kins 139 (blessing a warrantless entry “where those who

have made an affray in [the constable’s] presence fly to a

house and are immediately pursued”). Hale also approved

a warrantless entry to stop a more mundane form of harm:

He (though not other commentators) thought a constable

could act to “suppress the disorder” associated with “drink-

ing or noise in a house at an unseasonable time of night.”

Hale 95. But differences aside, all the commentators fo-

cused on the facts of cases: When a suspected misdemean-

ant, fleeing or otherwise, threatened no harm, the constable

had to get a warrant.

The common law thus does not support a categorical rule

allowing warrantless home entry when a misdemeanant

flees. It had a rule of that kind for felonies. But much as

——————

cry”: when a constable or other person “raise[d] the power of the towne”—

“with horn and with voice”—to pursue an offender. 3 E. Coke, Institutes

of the Laws of England 116 (1644); Blackstone 293. Most of the common-

law authorities approved warrantless home entries upon a hue and cry.

But because that process was generally available only to apprehend fel-

ons and those who had “dangerously wounded any person,” it did not en-

large the range of qualifying offenses. Hale 98; see Brief for Constitu-

tional Accountability Center as Amicus Curiae 17–18.

7 The term “breach of the peace” can today encompass many kinds of

behavior, and even in common-law times it “meant very different things

in different” contexts. Atwater v. Lago Vista, 532 U. S. 318, 327, n. 2

(2001). But “[m]ore often than not, when used in reference to common-

law arrest power, the term seemed to connote an element of violence.”

Id., at 327–328, n. 2.

16 LANGE v. CALIFORNIA

Opinion of the Court

in Welsh centuries later, the common law made distinctions

based on “the gravity of the underlying offense.” 466 U. S.,

at 753. When it came to misdemeanors, flight alone was

not enough. Whether a constable could make a warrantless

entry depended as well on other circumstances suggesting

a potential for harm and a need to act promptly.8 In that

way, the common-law rules (even if sometimes hard to dis-

cern with precision) mostly mirror our modern caselaw.

The former too demanded—and often found—a law enforce-

ment exigency before an officer could “break open” a fleeing

misdemeanant’s doors. Blackstone 292.

III

The flight of a suspected misdemeanant does not always

justify a warrantless entry into a home. An officer must

consider all the circumstances in a pursuit case to deter-

mine whether there is a law enforcement emergency. On

many occasions, the officer will have good reason to enter—

to prevent imminent harms of violence, destruction of evi-

dence, or escape from the home. But when the officer has

time to get a warrant, he must do so—even though the mis-

demeanant fled.

Because the California Court of Appeal applied the cate-

gorical rule we reject today, we vacate its judgment and re-

mand the case for further proceedings not inconsistent with

this opinion.

It is so ordered.

——————

8 The concurrence professes to disagree with this conclusion, see post,

at 17–19 (opinion of ROBERTS, C. J.), but its account of the common law

ends up in much the same place as ours. The concurrence recognizes a

categorical rule permitting warrantless home entry in pursuit of fleeing

felons. See post, at 17. But for misdemeanants, the concurrence presents

only discrete circumstances—mostly the same as ours—allowing home

entry without a warrant. Post, at 17–18. Those particular instances of

permissible entry do not create a categorical rule.

Cite as: 594 U. S. ____ (2021) 1

KAVANAUGH, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 20–18

_________________

ARTHUR GREGORY LANGE, PETITIONER v.

CALIFORNIA

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF

CALIFORNIA, FIRST APPELLATE DISTRICT

[June 23, 2021]

JUSTICE KAVANAUGH, concurring.

The Court holds that an officer may make a warrantless

entry into a home when pursuing a fleeing misdemeanant

if an exigent circumstance is also present—for example,

when there is a risk of escape, destruction of evidence, or

harm to others. I join the Court’s opinion. I also join Part

II of JUSTICE THOMAS’s concurrence regarding how the ex-

clusionary rule should apply to hot pursuit cases.

I add this brief concurrence simply to underscore that, in

my view, there is almost no daylight in practice between the

Court’s opinion and THE CHIEF JUSTICE’s opinion concur-

ring in the judgment.

In his thoughtful opinion, THE CHIEF JUSTICE concludes

that pursuit of a fleeing misdemeanant should itself consti-

tute an exigent circumstance. The Court disagrees. As I

see it, however, the difference between THE CHIEF

JUSTICE’s approach and the Court’s approach will be aca-

demic in most cases. That is because cases of fleeing mis-

demeanants 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 war-

rantless entry into a home. See ante, at 1, 4, 16; see also,

e.g., City and County of San Francisco v. Sheehan, 575 U. S.

600, 612 (2015); Kentucky v. King, 563 U. S. 452, 460 (2011);

2 LANGE v. CALIFORNIA

KAVANAUGH, J., concurring

Brigham City v. Stuart, 547 U. S. 398, 403 (2006); Minne-

sota v. Olson, 495 U. S. 91, 100 (1990). As Lange’s able

counsel forthrightly acknowledged at oral argument, the

approach adopted by the Court today will still allow the po-

lice to make a warrantless entry into a home “nine times

out of 10 or more” in cases involving pursuit of a fleeing

misdemeanant. Tr. of Oral Arg. 34.

Importantly, moreover, the Court’s opinion does not dis-

turb the long-settled rule that pursuit of a fleeing felon is

itself an exigent circumstance justifying warrantless entry

into a home. See United States v. Santana, 427 U. S. 38,

42–43 (1976); cf. Stanton v. Sims, 571 U. S. 3, 8, 9 (2013)

(per curiam). In other words, the police may make a war-

rantless entry into the home of a fleeing felon regardless of

whether other exigent circumstances are present.

With those observations, I join the Court’s opinion.

Cite as: 594 U. S. ____ (2021) 1

HOMAS, of

TOpinion J.,Tconcurring

HOMAS, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 20–18

_________________

ARTHUR GREGORY LANGE, PETITIONER v.

CALIFORNIA

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF

CALIFORNIA, FIRST APPELLATE DISTRICT

[June 23, 2021]

JUSTICE THOMAS, with whom JUSTICE KAVANAUGH joins

as to Part II, concurring in part and concurring in the judg-

ment.

I join the majority opinion, except for Part II–A, which

correctly rejects the argument that suspicion that a person

committed any crime justifies warrantless entry into a

home in hot pursuit of that person. I write separately to

note two things: the general case-by-case rule that the

Court announces today is subject to historical, categorical

exceptions; and under our precedent, the federal exclusion-

ary rule does not apply to evidence discovered in the course

of pursuing a fleeing suspect.

I

The majority sets out a general rule requiring a case-by-

case inquiry when an officer enters a home without a war-

rant in pursuit of a person suspected of committing a mis-

demeanor. But history suggests several categorical excep-

tions to this rule. First, warrantless entry is categorically

allowed when a person is arrested and escapes. E.g., J. Par-

ker, Conductor Generalis 28–29 (1788) (constables may

break into houses without a warrant “[w]herever a person

is lawfully arrested for any cause, and afterwards escapes,

and shelters himself in an house”); ante, at 14, n. 5. This

exception is potentially very broad. See Torres v. Madrid,

2 LANGE v. CALIFORNIA

HOMAS, of

TOpinion J.,Tconcurring

HOMAS, J.

592 U. S. ___, ___ (2021) (slip op., at 1) (holding that an ar-

rest occurs whenever an officer applies physical force to the

body with intent to restrain); Genner v. Sparks, 6 Mod. 173,

174, 87 Eng. Rep. 928, 929 (Q. B. 1704). Second, authorities

at common law categorically allowed warrantless entry

when in hot pursuit of a person who committed an affray.

Ante, at 15. Third, those authorities allowed the same for

what the majority calls certain “pre-felonies.” Ante, at 14.

Finally, some authorities appear to have allowed warrant-

less entry when in pursuit of a person who had breached

the peace. See, e.g., 2 M. Hale, Pleas of the Crown 95 (1736)

(Hale); Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev.

798, 802–803 (1924)). What crimes amounted to “breach of

peace” for purposes of warrantless entry is not immediately

clear. The term sometimes was used to refer to violence,

but the majority recognizes historical support for a broader

definition. Ante, at 15 (citing Hale 95). And cases decided

before and after the Fourteenth Amendment was ratified

similarly used the term “breach of peace” in a broad sense.

E.g., State v. Lafferty, 5 Del. 491 (1854) (“blow[ing] a trum-

pet at night through the streets”); Hawkins v. Lutton, 95

Wis. 492, 494, 70 N. W. 483 (1897) (“loud, profane, and in-

decent” language).

I join the relevant parts of the majority on the under-

standing that its general case-by-case rule does not fore-

close historical, categorical exceptions. Although the ma-

jority unnecessarily leads with doctrine before history, it

does not disturb our regular rule that history—not court-

created standards of reasonableness—dictates the outcome

whenever it provides an answer. See, e.g., Wilson v. Arkan-

sas, 514 U. S. 927, 931 (1995); Virginia v. Moore, 553 U. S.

164, 171 (2008).

I also join on the understanding that the majority has not

sought to settle the contours of any of these historical ex-

ceptions.

Cite as: 594 U. S. ____ (2021) 3

HOMAS, of

TOpinion J.,Tconcurring

HOMAS, J.

II

I also write to point out that even if the state courts on

remand conclude that the officer’s entry here was unlawful,

the federal exclusionary rule does not require suppressing

any evidence.

“[O]fficers who violated the Fourth Amendment were tra-

ditionally considered trespassers.” Utah v. Strieff, 579

U. S. 232, 237 (2016). For that reason, “individuals subject

to unconstitutional searches or seizures historically en-

forced their rights through tort suits or self-help.” Ibid.

But beginning in the 20th century, this Court created a new

remedy: exclusion of evidence in criminal trials. Ibid.

Establishing a violation of the Fourth Amendment,

though, does not automatically entitle a criminal defendant

to exclusion of evidence. Far from it. “[T]he exclusionary

rule is not an individual right.” Herring v. United States,

555 U. S. 135, 141 (2009). It is a “ ‘prudential’ doctrine cre-

ated by this Court,” Davis v. United States, 564 U. S. 229,

236 (2011) (citation omitted), and there is always a “high

obstacle for those urging application of the rule,” Pennsyl-

vania Bd. of Probation and Parole v. Scott, 524 U. S. 357,

364–365 (1998). Relevant here, the rule “does not apply

when the costs of exclusion outweigh its deterrent benefits.”

Strieff, 579 U. S., at 235.

On the benefits side, “we have said time and again that

the sole” factor courts can consider is “deter[ring] miscon-

duct by law enforcement.” Davis, 564 U. S., at 246. And

not just any misconduct. The exclusionary rule developed

to deter “intentional conduct that was patently unconstitu-

tional.” Herring, 555 U. S., at 143 (emphasis added). For

the past several decades, we have thus declined to exclude

evidence where exclusion would not substantially deter “in-

tentional” and “flagrant” behavior. Id., at 144. For exam-

ple, the exclusionary rule does not apply where “some inter-

vening circumstance” arises between unconstitutional

conduct and discovery of evidence, Strieff, 579 U. S., at 238;

4 LANGE v. CALIFORNIA

HOMAS, of

TOpinion J.,Tconcurring

HOMAS, J.

where evidence would inevitably have been discovered,

ibid.; or where officers have acted in good faith, United

States v. Leon, 468 U. S. 897, 908 (1984).

On the other side of the ledger, we consider all “costs.”

E.g., Davis, 564 U. S., at 237. One cost is especially salient:

excluding evidence under the Fourth Amendment always

obstructs the “ ‘truth-finding functions of judge and jury.’ ”

Leon, 468 U. S., at 907; accord, Nix v. Williams, 467 U. S.

431, 443 (1984) (recognizing “the public interest in having

juries receive all probative evidence”). This interference

with the purpose of the judicial system also creates a down-

stream risk that “some guilty defendants may go free or re-

ceive reduced sentences.” Leon, 468 U. S., at 907.

By itself, this high cost makes exclusion under our prece-

dent rarely appropriate. “Suppression of evidence . . . has

always been our last resort, not our first impulse.” Hudson

v. Michigan, 547 U. S. 586, 591 (2006). When additional

costs are present, the balance tips decisively against exclu-

sion.

Cases of fleeing suspects involve more than enough added

costs to render the exclusionary rule inapplicable. First,

our precedents make clear that the exclusionary rule does

not apply when it would encourage bad conduct by criminal

defendants. For example, evidence obtained during an un-

lawful search is still admissible to impeach a witness be-

cause exclusion would create “ ‘a license to use perjury.’ ”

United States v. Havens, 446 U. S. 620, 626 (1980). Here,

exclusion is inappropriate because it would encourage sus-

pects to flee. Second, our precedents similarly make clear

that criminal defendants cannot use the exclusionary rule

as “a shield against” their own bad conduct. Walder v.

United States, 347 U. S. 62, 65 (1954). In most—if not all—

States, fleeing from police after a lawful order to stop is a

crime. All the evidence that petitioner seeks to exclude is

evidence that inevitably would have been discovered had he

Cite as: 594 U. S. ____ (2021) 5

HOMAS, of

TOpinion J.,Tconcurring

HOMAS, J.

complied with the officer’s order to stop. A criminal defend-

ant should “not . . . be put in a better position than [he]

would have been in if no illegality had transpired.” Nix, 467

U. S., at 443–444.

Aware of the substantial costs created by the exclusion-

ary rule, courts have sometimes narrowed the protections

historically afforded by the Fourth Amendment to avoid

having to exclude evidence. See Collins v. Virginia, 584

U. S. ___, ___ (2018) (THOMAS, J., concurring) (slip op., at

1); A. Amar, The Constitution and Criminal Procedure:

First Principles 30 (1997) (“Judges do not like excluding

bloody knives, so they distort doctrine”). But it should be

the judicially created remedy, not the Fourth Amendment,

that contracts in the face of that pressure. Courts should

follow the plain dictates of our precedent: Officers cannot

chase a fleeing person into a home simply because that per-

son is suspected of having committed any misdemeanor, but

if the officer nonetheless does so, exclusion under the

Fourth Amendment is improper. Criminal defendants

must rely on other remedies.

Cite as: 594 U. S. ____ (2021) 1

ROBERTS , C. J., ,concurring

ROBERTS C. J., concurring

in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 20–18

_________________

ARTHUR GREGORY LANGE, PETITIONER v.

CALIFORNIA

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF

CALIFORNIA, FIRST APPELLATE DISTRICT

[June 23, 2021]

CHIEF JUSTICE ROBERTS, with whom JUSTICE ALITO

joins, concurring in the judgment.

Suppose a police officer on patrol responds to a report of

a man assaulting a teenager. Arriving at the scene, the of-

ficer sees the teenager vainly trying to ward off the assail-

ant. The officer attempts to place the assailant under ar-

rest, but he takes off on foot. He leads the officer on a chase

over several blocks as the officer yells for him to stop. With

the officer closing in, the suspect leaps over a fence and then

stands on a home’s front yard. He claims it’s his home and

tells the officer to stay away. What is the officer to do?

The Fourth Amendment and our precedent—not to men-

tion common sense—provide a clear answer: The officer can

enter the property to complete the arrest he lawfully initi-

ated outside it. But the Court today has a different take.

Holding that flight, on its own, can never justify a warrant-

less entry into a home (including its curtilage), the Court

requires that the officer: (1) stop and consider whether the

suspect—if apprehended—would be charged with a misde-

meanor or a felony, and (2) tally up other “exigencies” that

might be present or arise, ante, at 1, 4, before (3) deciding

whether he can complete the arrest or must instead seek a

warrant—one that, in all likelihood, will not arrive for

hours. Meanwhile, the suspect may stroll into the home

and then dash out the back door. Or, for all the officer

2 LANGE v. CALIFORNIA

ROBERTS , C. J., ,concurring

ROBERTS C. J., concurring

in judgment

knows, get a gun and take aim from inside.

The Constitution does not demand this absurd and dan-

gerous result. We should not impose it. As our precedent

makes clear, hot pursuit is not merely a setting in which

other exigent circumstances justifying warrantless entry

might emerge. It is itself an exigent circumstance. And we

have never held that whether an officer may enter a home

to complete an arrest turns on what the fleeing individual

was suspected of doing before he took off, let alone whether

that offense would later be charged as a misdemeanor or

felony. It is the flight, not the underlying offense, that has

always been understood to justify the general rule: “Police

officers may enter premises without a warrant when they

are in hot pursuit of a fleeing suspect.” Kentucky v. King,

563 U. S. 452, 460 (2011). The Court errs by departing from

that well-established rule.

I

A

The Fourth Amendment protects “[t]he right of the people

to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures” and provides

that “no Warrants shall issue, but upon probable cause.”

While the Amendment does not specify when a warrant

must be obtained, we have typically required that officers

secure one before entering a home to execute a search or

seizure. King, 563 U. S., at 459. We have also, however,

recognized exceptions to that requirement “because the ul-

timate touchstone of the Fourth Amendment is ‘reasonable-

ness.’ ” Brigham City v. Stuart, 547 U. S. 398, 403 (2006).

In some instances the Court has determined that this

question of reasonableness can be decided by application of

a rule for a particular type of case. Mitchell v. Wisconsin,

588 U. S. ___, ___, n. 2 (2019) (plurality opinion) (slip op., at

9, n. 2); see Illinois v. McArthur, 531 U. S. 326, 330 (2001)

Cite as: 594 U. S. ____ (2021) 3

ROBERTS , C. J., ,concurring

ROBERTS C. J., concurring

in judgment

(“[T]his Court has interpreted the Amendment as establish-

ing rules and presumptions.”). This approach reflects our

recognition of the need “to provide clear guidance to law en-

forcement.” Riley v. California, 573 U. S. 373, 398 (2014).

We strive to “draw standards sufficiently clear and simple

to be applied with a fair prospect of surviving judicial

second-guessing months and years after an arrest or search

is made.” Atwater v. Lago Vista, 532 U. S. 318, 347 (2001).

We have, for example, established general rules giving ef-

fect to the “well-recognized exception [that] applies when

the exigencies of the situation make the needs of law en-

forcement so compelling that [a] warrantless search is ob-

jectively reasonable under the Fourth Amendment.” King,

563 U. S., at 460 (some alterations in original; internal quo-

tation marks omitted). In fact, “our exigency case law is full

of general rules” that provide “guidance on how police

should handle [such] cases.” Mitchell, 588 U. S., at ___,

n. 3 (slip op., at 9, n. 3) (internal quotation marks omitted).

These rules allow warrantless entry into the home when

necessary to “protect individuals who are threatened with

imminent harm, or prevent the imminent destruction of ev-

idence.” Carpenter v. United States, 585 U. S. ___, ___–___

(2018) (slip op., at 21–22). Or—relevant here—“to pursue a

fleeing suspect.” Id., at ___ (slip op., at 21).

We take a case-by-case approach in deciding whether a

search or seizure was conducted in reaction to an exigent

circumstance, such as whether an officer had an objective

basis to “fear the imminent destruction of evidence.” Birch-

field v. North Dakota, 579 U. S. 438, ___ (2016) (slip op., at

15). But once faced with an exigency, our rule is clear: of-

ficers are “not bound to learn anything more or wait any

longer before going in.” United States v. Banks, 540 U. S.

31, 40 (2003).

Today, the Court holds that hot pursuit merely sets the

table for other exigencies that may emerge to justify war-

rantless entry, such as imminent harm. This comes as a

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surprise. For decades we have consistently recognized pur-

suit of a fleeing suspect as an exigency, one that on its own

justifies warrantless entry into a home.

Almost a half century ago in United States v. Santana,

427 U. S. 38 (1976), we considered whether hot pursuit sup-

ports warrantless home entry. We held that such entry was

justified when Santana “retreat[ed] into her house” after a

drug transaction upon hearing law enforcement “shout[ ]

‘police’ ” and seeing them “display[ ] their identification.”

Id., at 40, 42. As we explained, “a suspect may not defeat

an arrest which has been set in motion in a public place . . .

by the expedient of escaping to a private place.” Id., at 43.

Our interpretation of the Fourth Amendment did not hinge

on whether the offense that precipitated her withdrawal

was a felony or a misdemeanor. See Stanton v. Sims, 571

U. S. 3, 9 (2013) (per curiam).

We have repeatedly and consistently reaffirmed that hot

pursuit is itself an exigent circumstance. See, e.g., Carpen-

ter, 585 U. S., at ____ (slip op., at 21) (“[E]xigencies include

the need to pursue a fleeing suspect.”); Collins v. Virginia,

584 U. S. ___, ___ (2018) (slip op., at 12) (distinguishing

prior case approving warrantless entry onto the curtilage

as best sounding in “hot pursuit”); Birchfield, 579 U. S., at

___ (slip op., at 15) (exception for exigent circumstances au-

thorizes “the warrantless entry of private property . . .

when police are in hot pursuit of a fleeing suspect”); King,

563 U. S., at 460 (“Police officers may enter premises with-

out a warrant when they are in hot pursuit of a fleeing sus-

pect.”); Brigham City, 547 U. S., at 403 (“We have held, for

example, that law enforcement officers may make a war-

rantless entry onto private property . . . to engage in ‘hot

pursuit’ of a fleeing suspect.” (citations omitted)); Steagald

v. United States, 451 U. S. 204, 221 (1981) (“[W]arrantless

entry of a home would be justified if the police were in ‘hot

pursuit’ of a fugitive.”); see also Mitchell, 588 U. S., at ___

(SOTOMAYOR, J., dissenting) (slip op., at 11) (“ ‘hot pursuit’

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of a fleeing suspect” qualifies as an exigency); Missouri v.

McNeely, 569 U. S. 141, 176–177 (2013) (THOMAS, J., dis-

senting) (same).

These cases, it bears repeating, have not viewed hot pur-

suit as merely the background against which other exigen-

cies justifying warrantless entry might arise. See, e.g., Car-

penter, 585 U. S., at ___–___ (slip op., at 21–22) (identifying

destruction of evidence, emergency aid, and hot pursuit as

separate exigencies); Birchfield, 579 U. S., at ___ (slip op.,

at 15) (same); McNeely, 569 U. S., at 148–149 (opinion of

the Court) (same); King, 563 U. S., at 460 (same); Brigham

City, 547 U. S., at 403 (same); see also Mitchell, 588 U. S.,

at ___ (SOTOMAYOR, J., dissenting) (slip op., at 11) (same).

And our decisions do not dismiss the existence of an exi-

gency—including hot pursuit—based on the underlying of-

fense that precipitated law enforcement action, even if

known. To the contrary, until today, we have explicitly re-

jected invitations to do so. See Brigham City, 547 U. S., at

405 (dismissing defendants’ contention that offenses at is-

sue were “not serious enough” to justify reliance on the

emergency aid doctrine); Michigan v. Fisher, 558 U. S. 45,

47 (2009) (per curiam); see also Atwater, 532 U. S., at 354

(rejecting exception for “very minor criminal offense[s]” to

rule allowing warrantless arrests).

The Court displays little patience for this precedent.

With regard to Santana, the Court concedes that “we

framed our holding in broad[ ] terms.” Ante, at 7. Yet it

narrows those terms based on rationales that played no role

in the decision. The Court then brushes off our slew of cases

reaffirming Santana’s broad holding as nothing more than

“dicta.” Ante, at 7. I would not override decades of guidance

to law enforcement in favor of a new rule that provides no

guidance at all.

B

A proper consideration of the interests at stake confirms

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the position our precedent amply supports. Pursuit impli-

cates substantial government interests, regardless of the of-

fense precipitating the flight. It is the flight, not the under-

lying offense, that justifies the entry.

At the start, every hot pursuit implicates the government

interest in ensuring compliance with law enforcement. Cal-

ifornia v. Hodari D., 499 U. S. 621, 627 (1991). Flight is a

direct attempt to evade arrest and thereby frustrate our

“society’s interest in having its laws obeyed.” Terry v. Ohio,

392 U. S. 1, 26 (1968). Disregarding an order to yield to law

enforcement authority cannot be dismissed with a shrug of

the shoulders simply because the underlying offense is re-

garded as “innocuous,” ante, at 10. As the many state

courts to approve of warrantless entry in hot pursuit have

reminded us, “[l]aw enforcement is not a child’s game of

prisoners base, or a contest, with apprehension and convic-

tion depending upon whether the officer or defendant is the

fleetest of foot.” Commonwealth v. Jewett, 471 Mass. 624,

634, 31 N. E. 3d 1079, 1089 (2015) (quoting State v. Ricci,

144 N. H. 241, 245, 739 A. 2d 404, 408 (1999)).

Flight also always involves the “paramount” government

interest in public safety. Scott v. Harris, 550 U. S. 372, 383

(2007); see Hodari D., 499 U. S., at 627 (“Street pursuits

always place the public at some risk, and compliance with

police orders to stop should therefore be encouraged.”). A

fleeing suspect “intentionally place[s] himself and the pub-

lic in danger.” Scott, 550 U. S., at 384. Vehicular pursuits,

in particular, are often catastrophic. See Dept. of Justice,

Bureau of Justice Statistics, B. Reaves, Police Vehicle Pur-

suits, 2012–2013, p. 6 (May 2017) (average of about one

death per day in the United States from vehicle pursuits

from 1996 to 2015). Affording suspects the opportunity to

evade arrest by winning the race rewards flight and encour-

ages dangerous behavior.

And the problems do not end there because hot pursuit

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often gives rise to multiple other exigencies, such as de-

struction of evidence, violence, and escape. The Court

acknowledges this reality, but then posits that not “every

case of misdemeanor flight poses such dangers.” Ante, at

10 (emphasis added). Of course not. But we have never

required such a level of certainty before crafting a general

rule that law enforcement can follow. For example, in

Washington v. Chrisman, 455 U. S. 1 (1982), we held that

an officer may accompany an arrestee into his residence

without any showing of exigency and regardless of the “na-

ture of the offense for which the arrest was made,” because

there “is no way for an officer to predict reliably how a par-

ticular subject will react to arrest” and “the possibility that

an arrested person will attempt to escape if not properly

supervised is obvious.” Id., at 6–7. In Michigan v. Sum-

mers, 452 U. S. 692 (1981), we concluded that, although “no

special danger to the police” was suggested by the evidence

in the record, the execution of a search warrant merited a

categorical rule allowing detention of present individuals

because it was the “kind of transaction” that could give rise

to other exigencies. Id., at 702. And in United States v.

Robinson, 414 U. S. 218 (1973), we held that the search in-

cident to arrest exception applies to all arrests regardless

“what a court may later decide was the probability in a par-

ticular arrest situation that weapons or evidence would in

fact be found,” because arrests require “quick ad hoc judg-

ment[s].” Id., at 235.

Such concerns are magnified here. The act of pursuing a

fleeing suspect makes simultaneously assessing which

other exigencies might arise especially difficult to ascertain

“on the spur (and in the heat) of the moment.” Atwater, 532

U. S., at 347. The Court disputes this proposition, ante, at

11, n. 3, but the difficulty of discerning hidden weapons or

drugs on a suspect running or driving away seems clear to

us.

The risks to officer safety posed by the Court’s suggestion

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that an officer simply abandon pursuit and await a warrant

are severe. We are warned in this case that “attempting

warrant service for an unknown suspect in an unknown

home at night is flat dangerous.” Brief for Sonoma County

District Attorney’s Office et al. as Amici Curiae 33.

Whether at night or during the day, the officer is obviously

vulnerable to those inside the home while awaiting a war-

rant, including danger from a suspect who has already

demonstrated himself to be undeterred by police orders.

See, e.g., Thompson v. Florence, 2019 WL 3220051, *4 (ND

Ala., July 17, 2019) (at fleeing suspect’s urging, resident

grabbed a handgun); State v. Davis, 2000–278, p. 5 (La.

App. 5 Cir. 8/29/00), 768 So. 2d 201, 206 (fleeing suspect

“reached for a handgun” inside home).

Even if the area outside the home remains tranquil, the

suspect inside is free to destroy evidence or continue his es-

cape. Flight is obviously suggestive of these recognized ex-

igencies, which could materialize promptly once the officer

is compelled to abandon pursuit. The destruction of evi-

dence can take as little as “15 or 20 seconds,” Banks, 540

U. S., at 40; and a suspect can dash out the back door just

as quickly, while the officer must wait outside. Forcing the

officer to wait and predict whether such exigencies will oc-

cur before entry is in practice no different from forcing the

officer to wait for these exigencies to occur.

Indeed, from the perspective of the officer, many in-

stances of flight leading to further wrongdoing are the sort

of “flight alone” cases the Court deems harmless, ante, at

11, n. 3. Despite the Court’s suggestion to the contrary, ex-

amples of “flight alone” generating exigencies difficult to

identify in advance are not hard to find. See, e.g. State v.

Lam, 2013-Ohio-505, 989 N. E. 2d 100, 101–102 (App.)

(warrantless entry in hot pursuit of someone who commit-

ted turn signal violation revealed heroin on suspect and

suggested attempt to flush drugs down the toilet); State v.

Mitchem, 2014-Ohio-2366, 2014 WL 2565680, *1 (App.,

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June 4, 2014) (suspect who committed trespass, fled from

the police into private driveway, and stated to officers

“[Y]ou can’t touch me, I’m at my house,” turned out to have

a gun). (And, as we will see, it is apparently hard to decide

which cases qualify as “flight alone” cases, see infra, at 16.)

If the suspect continues to flee through the house, while

the officer must wait, even the quickest warrant will be far

too late. Only in the best circumstances can one be obtained

in under an hour, see Brief for Respondent 33, and it usu-

ally takes much longer than that, see Brief for Los Angeles

County Police Chiefs’ Association as Amicus Curiae 24–25.

Even electronic warrants may involve “time-consuming for-

malities.” McNeely, 569 U. S., at 155. And some States typ-

ically require that a warrant application be in writing, see,

e.g., Colo. Rev. Stat. §16–3–303 (2020), or that the applicant

appear in person before a judge, see, e.g., Mass. Gen. Laws,

ch. 276, §2B (2019), or permit oral applications only for cer-

tain cases, see, e.g., Iowa Code §321J.10.3 (2019). All of

these factors make it very possible that the officer will never

be able to identify the suspect if he cannot continue the pur-

suit. See Hiibel v. Sixth Judicial Dist. Court of Nev., Hum-

boldt Cty., 542 U. S. 177, 186 (2004) (recognizing identifica-

tion as an “important government interest[ ]”). The Court

today creates “perverse incentives” by imposing an “invita-

tion to impunity-earned-by-recklessness.” Scott, 555 U. S.,

at 385–386.

Against these government interests we balance the sus-

pect’s privacy interest in a home to which he has voluntarily

led a pursuing officer. If the residence is not his the suspect

has no privacy interest to protect. Rakas v. Illinois, 439

U. S. 128, 141 (1978); see also State v. Walker, 2006–1045,

p. 7 (La. 4/11/07), 953 So. 2d 786, 790–791 (suspect fled into

third person’s residence where he was unwelcome); Ulysse

v. State, 899 So. 2d 1233, 1234 (Fla. App. 2005) (suspect ran

inside the home of “a complete stranger”). The police may

well have no reason to know whether the suspect entered

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his own or someone else’s home or yard. If the suspect does

escape into his own home, his privacy interest is diminished

because he was the one who chose to move his encounter

with the police there. See State v. Legg, 633 N. W. 2d 763,

773 (Iowa 2001) (nature of intrusion is “slight” in hot pur-

suit because the officer’s entry “was no surprise to [the sus-

pect]; he was following closely on her heels”); 4 W. LaFave,

Search and Seizure §9.2(d), p. 419 (6th ed. 2020) (“the sus-

pect has only himself to blame for the fact that the encoun-

ter has been moved from a public to a private area”). In

cases of hot pursuit, “[t]he offender is then not being both-

ered by the police unexpectedly while in domestic tranquil-

ity. He has gone to his home while fleeing solely to escape

arrest.” R. v. Macooh, [1993] 2 S. C. R. 802, 815. Put dif-

ferently, just as arrestees have “reduced privacy interests,”

Riley, 573 U. S., at 391, so too do those who evade arrest by

leading the police on car chases into their garages.

C

“In determining what is reasonable under the Fourth

Amendment, we have given great weight to the essential

interest in readily administrable rules.” Virginia v. Moore,

553 U. S. 164, 175 (2008) (internal quotation marks omit-

ted). This is particularly true with respect to the rules gov-

erning exceptions to the warrant requirement because of

exigent circumstances. See Mitchell, 588 U. S., at ___, n. 3

(slip op., at 9, n. 3). And contrary to the Court’s suggestion,

the home is not immune from the application of such rules

consistent with the Fourth Amendment. See, e.g., Sum-

mers, 452 U. S., at 705; Chimel v. California, 395 U. S. 752,

763 (1969).

Like most rules, this one is not without exceptions or

qualifications. The police cannot manufacture an unneces-

sary pursuit to enable a search of a home rather than to

execute an arrest. Cf. Fernandez v. California, 571 U. S.

292, 302 (2014) (“evidence that the police have removed the

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potentially objecting tenant from the entrance for the sake

of avoiding possible objection” would be probative of the ob-

jective unreasonableness of a warrantless entry based on

the consent of another occupant). Additionally, if a reason-

able officer would not believe that the suspect fled into the

home to “thwart an otherwise proper arrest,” Santana, 427

U. S., at 42, warrantless entry would not be reasonable.

Additional safeguards limit the potential for abuse. The

officer must in all events effect a reasonable entry. United

States v. Ramirez, 523 U. S. 65, 71 (1998). As the lower

courts have recognized, hot pursuit gives the officer author-

ity to enter a home, but “it does not have any bearing on the

constitutionality of the manner in which he enters the

home.” Trent v. Wade, 776 F. 3d 368, 382 (CA5 2015). And

his authority to search is circumscribed, limited to “those

spaces where a person may be found” for “no longer than it

takes to complete the arrest and depart the premises.”

Maryland v. Buie, 494 U. S. 325, 335–336 (1990). Finally,

arrests conducted “in an extraordinary manner, unusually

harmful to an individual’s privacy or even physical inter-

ests” are subject to even more stringent review. Whren v.

United States, 517 U. S. 806, 818 (1996).

Courts must also ascertain whether a given set of circum-

stances actually qualifies as hot pursuit. While the flight

need not be reminiscent of the opening scene of a James

Bond film, there must be “some sort of a chase.” Santana,

427 U. S., at 43. The pursuit must be “immediate or con-

tinuous.” Welsh v. Wisconsin, 466 U. S. 740, 753 (1984).

And the suspect should have known the officer intended for

him to stop. Cf. Michigan v. Chesternut, 486 U. S. 567, 573–

574 (1988). Where a suspect, for example, chooses to end a

voluntary conversation with law enforcement and go inside

her home, that does not constitute flight. Florida v. Royer,

460 U. S. 491, 497–498 (1983) (plurality opinion).

Because the California Court of Appeals assumed that

hot pursuit categorically permits warrantless entry, I

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would vacate the decision below to allow consideration of

whether the circumstances at issue in this case fall within

an exception to the general rule of the sort outlined above.

Lange would be free to argue that his is the “unusual case,”

Mitchell, 588 U. S., at ____ (plurality opinion) (slip op., at

16), in which the general rule that hot pursuit justifies war-

rantless entry does not apply.

II

Now consider the regime the Court imposes. In rejecting

the amicus’ proposed categorical rule favoring warrantless

home entry, the Court creates a categorical rule of its own:

Flight alone can never justify warrantless entry into a home

or its curtilage. Instead, flight is but one factor of unclear

weight to “consider,” ante, at 16, and it must be supple-

mented with at least one additional exigency. This is nec-

essary, the Court explains, because people “flee for innocu-

ous reasons,” ante, at 10, although the Court offers just two

actual examples of “innocuous” flight, the harmlessness of

which would not have been apparent to the police, see ibid.

(citing Carroll v. Ellington, 800 F. 3d 154, 162 (CA5 2015;

Mascorro v. Billings, 656 F. 3d 1198, 1202 (CA10 2011)).

In order to create a hot pursuit rule ostensibly specific to

misdemeanors, the Court must turn to a case concerning

neither misdemeanors nor hot pursuit. In Welsh v. Wiscon-

sin, we held that the warrantless entry of a drunk driver’s

home to arrest him for a nonjailable offense violated the

Fourth Amendment. 466 U. S., at 754. The Court relies on

Welsh for the proposition that “when a minor offense alone

is involved . . . officers can probably take the time to get a

warrant” to execute an arrest. Ante, at 9–10. The Court’s

determination that Welsh applies to all cases involving “mi-

nor” offenses—although we never learn what qualifies as a

minor offense—ignores that we have already declined to ap-

ply Welsh to cases involving misdemeanors because of the

“significant” distinction between nonjailable offenses and

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misdemeanors. McArthur, 531 U. S., at 336. And in any

event, we explicitly differentiated the circumstances at is-

sue in Welsh from “immediate or continuous pursuit of [a

person] from the scene of a crime.” 466 U. S., at 753; see

Brigham City, 547 U. S., at 405 (rejecting Welsh’s applica-

tion to a situation involving exigent circumstance of emer-

gency aid). Accordingly, as we have already held, “nothing

in [Welsh] establishes that the seriousness of the crime is

equally important in cases of hot pursuit.” Stanton, 571

U. S., at 9 (emphasis in original). The Court’s citation to

Justice Jackson’s concurrence in McDonald v. United

States, 335 U. S. 451 (1948), ante, at 11, n. 3, is similarly

inapt. That case involved entry for mere “follow[ ] up,” not

anything resembling hot pursuit. McDonald, 335 U. S., at

459.

The Court next limits its consideration of the interests at

stake to a balancing of what it perceives to be the govern-

ment’s interest in capturing innocuous misdemeanants

against a person’s privacy interest in his home. The ques-

tion, however, is not whether “litter[ing]” presents risks to

public safety or the potential for escape, ante, at 8, but

whether flight does so. And flight from the police is never

innocuous.

The Court ultimately decides that, when it comes to mis-

demeanors, States do not have as much of an interest in

seeing such laws enforced. But, as the Court concedes, we

have already rejected as “untenable” the “assumption that

a ‘felon’ is more dangerous than a misdemeanant.” Tennes-

see v. Garner, 471 U. S. 1, 14 (1985). This is so because “nu-

merous misdemeanors involve conduct more dangerous

than many felonies.” Ibid. At any rate, the fact that a sus-

pect flees when suspected of a minor offense could well be

indicative of a larger danger, given that he has voluntarily

exposed himself to much higher criminal penalties in ex-

change for the prospect of escaping or delaying arrest. Cf.

Illinois v. Wardlow, 528 U. S. 119, 124 (2000).

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The Court’s rule is also famously difficult to apply. The

difference between the two categories of offenses is esoteric,

to say the least. See Atwater, 532 U. S., at 350; Berkemer

v. McCarty, 468 U. S. 420, 431, n. 13 (1984) (“[O]fficers in

the field frequently have neither the time nor the compe-

tence to determine the severity of the offense for which they

are considering arresting a person.” (internal quotation

marks omitted)). For example, driving while under the in-

fluence is a misdemeanor in many States, but becomes a

felony if the suspect is a serial drunk driver. See, e.g.,

Alaska Stat. §28.35.030(n) (2020). Drug possession may be

a misdemeanor or a felony depending on the weight of the

drugs. See, e.g., Ohio Rev. Code Ann. §2925.11(C) (Lexis

2019) (outlining 50 potential iterations of unlawful drug

possession, some misdemeanors others felonies). Layer on

top of this that for certain offenses the exact same conduct

may be charged as a misdemeanor or felony depending on

the discretionary decisions of the prosecutor and the judge

(what California refers to as a “wobbler”), and we have a

recipe for paralysis in the face of flight. See Cal. Penal Code

Ann. §§486–490.1 (West Cum. Supp. 2021) (classifying

theft as an infraction, misdemeanor, wobbler, or felony de-

pending on the value of the stolen item).

The Court permits constitutional protections to vary

based on how each State has chosen to classify a given of-

fense. For example, “human trafficking” can be a misde-

meanor in Maryland, Md. Crim. Law Code Ann. §3–

1102(c)(1) (2019), contra, Tex. Penal Code Ann. §20A.02

(West 2021), and in Pennsylvania so can involuntary man-

slaughter, 18 Pa. Cons. Stat. §2504(b) (2015); contra, Ohio

Rev. Code Ann. §2903.04(C). The vehicular flight at issue

in this very case is classified as a felony in several States.

See, e.g., Fla. Stat. §316.1935 (2014); Del. Code Ann., Tit.

21, §4103 (2013). Law enforcement entities and state gov-

ernments across the Nation tell us that they have accord-

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ingly developed standards for warrantless entry in hot pur-

suit tailored to their respective legal regimes. See Brief for

Los Angeles County Police Chiefs’ Association as Amicus

Curiae 14–20; Brief for State of Ohio et al. as Amici Curiae

25. Given the distinct nature of each State’s legal code,

such an approach is more appropriate than the Court’s

blunt constitutional reform.

For all these reasons, we have not crafted constitutional

rules based on the distinction between modern day misde-

meanors and felonies. In Tennessee v. Garner, for example,

we held that deadly force could not categorically be used to

seize a fleeing felon, even though the common law supplied

such a rule, because at common law the “gulf between the

felonies and the minor offences was broad and deep,” but

today it is “minor and often arbitrary.” 471 U. S., at 14 (in-

ternal quotation marks omitted).

Similarly, in Atwater, we held that the general probable-

cause rule for warrantless arrests applied to “even a very

minor criminal offense,” “without the need to balance the

interests and circumstances involved in particular situa-

tions.” 532 U. S., at 354 (internal quotation marks omit-

ted). We explained that we could not expect every police

officer to automatically recall “the details of frequently com-

plex penalty schemes,” and concluded that distinguishing

between “permissible and impermissible arrests for minor

crimes” was a “very unsatisfactory line to require police of-

ficers to draw on a moment’s notice.” Id., at 348, 350 (inter-

nal quotation marks and alteration omitted).

The Court’s approach is hopelessly indeterminate in

other respects as well. The Court admonishes law enforce-

ment to distinguish between “dangerous offender[s]” and

“scared teenager[s],” ante, at 11, as if an officer can easily

tell one from the other, and as if the two categories are mu-

tually exclusive. See Dept. of Justice, Office of Juvenile

Justice and Delinquency Prevention, Offending by Juve-

niles (Mar. 31, 2020) (about 16% of serious violent crimes in

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the United States from 2007 to 2017 were committed by ju-

veniles). And police are instructed to wait for a warrant if

there is sufficient “time,” ante, at 16, but they are not told

time before what, how many hours the Court would have

them wait, and what to do if other “pressing needs” arise.

See Mitchell, 588 U. S., at ___ (plurality opinion) (slip op.,

at 9) (“[A]n officer’s duty to attend to more pressing needs

may leave no time to seek a warrant.”).

The Court tut-tuts that we are making far too much of all

this, and that our “alarmism [is] misplaced.” Ante, at 11,

n. 3. In fact, the Court says, its “approach will in many, if

not most, cases allow a warrantless home entry.” Ante, at

11. In support of that assurance, the Court lists several

“exigencies above and beyond the flight itself ” that would

permit home entry, notably when “the fleeing misdemean-

ant” will “escape from the home.” Ante, at 11, n. 3. If an

officer “reasonably believes” such an exigency exists,” the

Court says, “he does not need a categorical misdemeanor-

pursuit rule to justify a warrantless home entry.” Ibid.

When a suspect flees into a dwelling there typically will

be another way out, such as a back door or fire escape. See

Cal. Code Regs., tit. 24, §§1113.2, 1114.8 (2019) (apart-

ments, floors of high-rise buildings, and many other homes

must have access to at least two means of egress). If the

officer reasonably believes there are multiple exits, then

surely the officer can conclude that the suspect might well

“escape from the home,” ante, at 11, n. 3, by running out the

back, rather than “slowing down and wiping his brow”

while the officer attempts to get a warrant. Scott, 550 U. S.,

at 385. Under the Court’s rule warrantless entry into a

home in hot pursuit of a fleeing misdemeanant would pre-

sumably be permissible, as long as the officer reasonably

believed the home had another exit. Question: Is that cor-

rect? Police in the field deserve to know.

But the Court will not answer the question, leaving it to

the officer to figure out in the midst of hot pursuit. The

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in judgment

answer apparently depends on whether the police “believe

anything harmful will happen in the time it takes to get a

warrant,” ante, at 11, n. 3, but again, what the police rea-

sonably believe will happen is of course that the suspect will

continue his flight and escape out the back. If that reason-

able belief is an exigency, then it is present in almost every

case of hot pursuit into the home. Perhaps that is why

Lange’s counsel admitted that “nine times out of ten or

more” warrantless entry in hot pursuit of misdemeanants

would be reasonable. Tr. of Oral Arg. 34.

III

Although the Fourth Amendment is not “frozen” in time,

we have used the common law as a reference point for as-

sessing the reasonableness of police activity. Garner, 471

U. S., at 13. The Court errs, however, in concluding with

the suggestion that history supports its novel incentive to

flee.

The history is not nearly as clear as the Court suggests.

The Court is forced to rely on an argument by negative im-

plication: if common law authorities supported a categorical

rule favoring warrantless entry in pursuit of felons, war-

rantless entry in pursuit of misdemeanants must have been

prohibited. That is wrong. Countless sources support the

proposition that officers could and did pursue into homes

those who had committed all sorts of offenses that the Court

seems to deem “minor.” Ante, at 8.

For example, common law authorities describe with ap-

proval warrantless home entry in pursuit of those who had

committed an affray (public fighting), 1 W. Hawkins, Pleas

of the Crown 137 (1716), and “disorderly drinking,”

W. Simpson, The Practical Justice of the Peace and the Par-

ish Officer 26 (1761). And the doctrine of “hue and cry” per-

mitted townspeople to pursue those suspected of “misde-

meanor[s]” if the perpetrator “escape[d] into [his] house.”

R. Bevill, Law of Homicide 162–163 (1799). In colonial

18 LANGE v. CALIFORNIA

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in judgment

America, the hue and cry extended to a “great diversity of

crimes,” including stealing livestock and revealing oneself

to be a Quaker. W. Cuddihy, The Fourth Amendment: Or-

igins and Original Meaning 244–246 (2009).

Finally, at common law an officer could “break open

Doors, in order to apprehend Offenders” whenever a person

was arrested for “any Cause,” and thereafter escaped. 2

Hawkins, Pleas of the Crown, at 86–87 (1787) (emphasis

added). The Court’s attempt to dispose of this awkward re-

ality in a footnote, ante, at 14, n. 5, is unconvincing. Flight

and escape both present attempts to “thwart an otherwise

proper arrest,” Santana, 427 U. S., at 42, and as noted, the

common law did not differentiate among escapees based on

the perceived magnitude of their underlying offense,

R. Burn, The Justice of the Peace 101–103 (14th ed. 1780).

Clearly the list of offenses that historically justified war-

rantless home entry in hot pursuit of a fleeing suspect were

as broad and varied as those found in a contemporary com-

pilation of misdemeanors. See also Macooh, [1993] 2

S. C. R., at 817 (concluding after review that at common law

“the right to enter in hot pursuit” was not “limited to arrest

for felonies”); Lyons v. R., [1984] 2 S. C. R. 633, 657 (recog-

nizing “right of pursuit” as a longstanding exception to

common law protection of the sanctity of the home).

In the face of this evidence, the Court fails to cite a single

circumstance in which warrantless entry in hot pursuit was

found to be unlawful at common law. It then acknowledges

that “some of the specifics are uncertain, and commentators

did not always agree with each other.” Ante, at 14. In At-

water, we declined to forbid warrantless arrests for minor

offenses when we found “disagreement, not unanimity,

among both the common-law jurists and the text writers

who sought to pull the cases together.” 532 U. S., at 332.

The historical ambiguity is at least as pervasive here.

Even if the common law practice surrounding hot pursuit

were unassailably clear, its treatment of the topic before us

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in judgment

would still be incomplete. That is because the common law

did not recognize the remedy Lange seeks: exclusion of evi-

dence in a criminal case. Collins, 584 U. S., at ___ (slip op.,

at 2) (THOMAS, J., concurring). It is often difficult to con-

ceive of how common law rights were influenced by the ab-

sence of modern remedies. And in this case we have no

guidance from history as to how our doctrines surrounding

the exclusionary rule, such as inevitable discovery, would

map onto situations in which a person attempts to thwart a

public arrest by retreating to a private place. See Nix v.

Williams, 467 U. S. 431, 443–444 (1984).

* * *

Recall the assault we started with. The officer was clos-

ing in on the suspect when he hopped the fence and stopped

in a yard. The officer starts to climb over the fence to arrest

him, but wait—was the assault a misdemeanor or a felony?

In Lange’s State of California, it could have been either de-

pending on the identity of the victim, the amount of force

used, and whether there was a weapon involved. See Cal.

Penal Code Ann. §245 (West 2014). How much force was

the man using against the teenager? Is this really the as-

sailant’s home in the first place? Pretty suspicious that he

jumped the fence just as the officer was about to grab him.

If it is his home, are there people inside and, if so, how

many? And why would the man run from a mere fight—

does he have something more serious to hide?

By this time, of course, the assailant has probably gone

out the back door or down the fire escape and is blocks

away, with the officer unable to give a useful description—

except for how he looks from behind.