The opinion
Filed 12/20/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A157169
v.
ARTHUR GREGORY LANGE, (Sonoma County
Defendant and Appellant. Super. Ct. No. SCR699391)
In a nonpublished decision filed October 30, 2019, we affirmed the trial
court’s denial of the motion to suppress evidence filed by defendant Arthur
Gregory Lange. (People v. Lange (Oct. 30, 2019, A157169) [nonpub. opn.]
p. 1.) Rejecting defendant’s challenge, we held in relevant part that 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 requirement. (People v. Lange,
supra, A157169, at pp. 8, 13.) After defendant unsuccessfully petitioned the
California Supreme Court for review, the United States Supreme Court
(Supreme Court) granted his petition for writ of certiorari.
On June 23, 2021, our highest court issued Lange v. California (2021)
___ U.S. ___ [210 L.Ed.2d 486, 141 S.Ct. 2011], holding that the “flight of a
suspected misdemeanant does not always justify a warrantless entry into a
home” and that an “officer must consider all the circumstances in a pursuit
case to determine whether there is a law enforcement emergency [justifying
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entry].” (Lange v. California, supra, 210 L.Ed.2d at p. 500.) The Supreme
Court then vacated our prior decision and transferred this case back to us to
reconsider defendant’s challenge in light of its opinion. (Id. at pp. 500–501.)
To comply with this instruction, we ordered the parties to file
supplemental briefing addressing the impact of the Supreme Court’s new
precedent on the issues raised in this appeal. Having considered the parties’
supplemental briefs, we again affirm the lower court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
The following brief recitation of facts is taken from our prior,
nonpublished opinion (People v. Lange, supra, A157169) and Lange v.
California, supra, 210 L.Ed.2d 486.
I. The Search and Seizure.
About 10:20 p.m. on October 7, 2016, defendant drove past California
Highway Patrol Officer Aaron Weikert on a road in Sonoma County. Officer
Weikert noticed defendant was blaring loud music and honking
unnecessarily, violations of Vehicle Code sections 27007 and 27001,
respectively. (People v. Lange, supra, A157169, at pp. 2, 11.)
Officer Weikert followed defendant, turning on his overhead lights to
signal that defendant should pull over. Just seconds later, defendant arrived
at the driveway of his home. Rather than pulling over, defendant drove up
his driveway and into his attached garage. Officer Weikert followed
defendant into the garage and began questioning him. Defendant appeared
intoxicated, prompting the officer to conduct field sobriety tests, which
defendant failed. A subsequent blood test showed defendant’s blood-alcohol
content was over three times the legal limit. (People v. Lange, supra,
A157169, at pp. 2–3; Lange v. California, supra, 210 L.Ed.2d at p. 491.)
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II. The Motion to Suppress.
After defendant was charged with driving under the influence of
alcohol and operating a vehicle’s sound system at excessive levels, he moved
to suppress all evidence collected by the officer after he entered defendant’s
attached garage. (Lange v. California, supra, 210 L.Ed.2d at p. 491.)
Defendant argued the officer’s warrantless entry violated the Fourth
Amendment. The prosecution countered that (1) the officer had probable
cause to arrest defendant for the misdemeanor of failing to comply with a
police signal (Veh. Code, § 2800, subd. (a)) and (2) the pursuit of a suspected
misdemeanant categorically qualified as an exigent circumstance authorizing
a warrantless home entry. (Lange v. California, supra, 210 L.Ed.2d at p.
491.)
On May 3, 2017, the trial court denied defendant’s motion to suppress.
(People v. Lange, supra, A157169, at p. 4.) After the appellate division
upheld this ruling, he successfully filed a petition to transfer the case to our
court. (Id. at p. 5.)
III. Appellate Review.
A. California Court of Appeal and Supreme Court.
As mentioned, our nonpublished opinion affirming the denial of
defendant’s motion to suppress was filed October 30, 2019. (People v. Lange,
supra, A157169, at p. 1.) On February 11, 2020, the California Supreme
Court denied defendant’s petition for review. (People v. Lange, supra, review
den. Feb. 11, 2020, S259560.)
B. United States Supreme Court.
On July 10, 2020, defendant petitioned the Supreme Court for writ of
certiorari. The court granted defendant’s petition to resolve the conflict
among state and federal courts regarding whether hot pursuit of a suspected
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misdemeanant categorically qualifies as an exigent circumstance sufficient to
permit an officer’s warrantless entry into the suspect’s home. After the court
granted certiorari, the State of California declined to defend the categorical
rule adopted by this court. The Supreme Court thus appointed amicus curiae
to do so. (Lange v. California, supra, 210 L.Ed.2d at p. 492.)
Following briefing and argument, the Supreme Court rejected a
categorical rule in hot pursuit cases that would permit warrantless entry into
the home of a suspected misdemeanant. Instead, the court held that whether
a misdemeanor pursuit “involve[s] exigencies allowing warrantless entry”
must “turn[] on the particular facts of the case.” (Lange v. California, supra,
210 L.Ed.2d at p. 491.)
The Supreme Court thus vacated our judgment in People v. Lange,
supra, A157169, and remanded the case back to us for further proceedings.
(Lange v. California, supra, 210 L.Ed.2d at pp. 500–501.) Accordingly, in
August 2021, we instructed the parties to provide supplemental briefing as to
the impact of the high court’s ruling on this appeal. We turn now to the
issues raised therein.
DISCUSSION
On remand, the People do not argue in light of Lange v. California that
the record established a case-specific exigency that justified the officer’s entry
into defendant’s home. (See Lange v. California, supra, 210 L.Ed.2d at p.
491.) Instead, the People now argue the officer’s entry was justified because
he acted in reasonable reliance on then binding California appellate
precedent (People v. Lloyd (1989) 216 Cal.App.3d 1425, 1428–1430 (Lloyd))
that established a categorical warrant exception for the hot pursuit of
misdemeanor suspects. The People thus assert the exclusionary rule does not
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require suppression of the evidence recovered from defendant’s home after
the officer’s illegal entry. (See Lange v. California, supra, at p. 491.)
Defendant counters that the People forfeited the right to rely on an
exception to the exclusionary rule as a basis for affirming the lower court
order by failing to raise it as an issue in the trial court or in this court when
his case first went up on appeal. Alternatively, defendant disputes the
People’s premise that Lloyd qualifies as “binding appellate precedent”
authorizing the officer’s warrantless entry under the good faith exception.
We begin with the applicable law.
I. The Good Faith Exception to the Exclusionary Rule.
“ ‘In California, issues relating to the suppression of evidence derived
from governmental searches and seizures are reviewed under federal
constitutional standards.’ [Citations.] ‘ “ ‘We defer to the trial court’s factual
findings, express or implied, where supported by substantial evidence. In
determining whether, on the facts so found, the search or seizure was
reasonable under the Fourth Amendment, we exercise our independent
judgment.’ ” ’ [Citations.]” (People v. Macabeo (2016) 1 Cal.5th 1206, 1212
(Macabeo).)
“Exclusion of evidence due to a Fourth Amendment violation is not
automatic. . . . The Fourth Amendment protects the right to be free from
“unreasonable searches and seizures,” but it is silent about how this right is
to be enforced. To supplement the bare text, this Court created the
exclusionary rule, a deterrent sanction that bars the prosecution from
introducing evidence obtained by way of a Fourth Amendment violation.’
(Davis v. United States (2011) 564 U.S. 229, 231–232 [180 L.Ed.2d 285, 131
S.Ct. 2419] (Davis).) ‘The rule . . . operates as “a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its
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deterrent effect, rather than a personal constitutional right of the party
aggrieved.” ’ (United States v. Leon (1984) 468 U.S. 897, 906 [82 L.Ed.2d 677,
104 S.Ct. 3405] (Leon).)” (Macabeo, supra, 1 Cal.5th at pp. 1219–1220.)
The exclusionary rule is, however, limited. “[T]he ‘[t]ruth-in-[e]vidence’
provision of the California Constitution (art. I, § 28, subd. (f)(2) [formerly
subd. (d)]) . . . prohibits application of the exclusionary rule to evidence
gathered in violation of state law unless exclusion is compelled by the federal
Constitution.” (People v. Mackey (2015) 233 Cal.App.4th 32, 97 (Mackey).)
Under federal law, “[t]he high court has recognized that the deterrent
purpose of the rule is not served by excluding evidence when an officer
reasonably acts in objective good faith.” (Macabeo, supra, 1 Cal.5th at p.
1220.) “ ‘ “If the purpose of the exclusionary rule is to deter unlawful police
conduct, then evidence obtained from a search should be suppressed only if it
can be said that the law enforcement officer had knowledge, or may properly
be charged with knowledge, that the search was unconstitutional under the
Fourth Amendment.” ’ (Leon[, supra, 468 U.S.] at p. 919, quoting United
States v. Peltier (1975) 422 U.S. 531, 542 [45 L.Ed.2d 374, 95 S.Ct. 2313].)”
(Macabeo, supra, 1 Cal.5th at p. 1220.)
Thus, the Supreme Court in Davis, supra, 564 U.S. 229, held that
“[e]vidence obtained during a search conducted in reasonable reliance on
binding appellate precedent [that is later overruled] is not subject to the
exclusionary rule,” as “suppression would do nothing to deter police
misconduct in [those] circumstances . . . .” (Id. at pp. 231, 241.) In Davis,
because appellate authority specifically authorized the officer’s search of the
defendant’s vehicle, the Supreme Court noted that the “deterrent effect of
exclusion . . . [could] only be to discourage the officer from ‘ “do[ing] his
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duty.” ’ ” (Id. at p. 241, 1st bracketed insertion added.) Under such
circumstances, the exclusionary rule was not applicable. (Ibid.)
II. The forfeiture doctrine is not applicable here.
Applying these principles, we begin by rejecting defendant’s claim that
the People forfeited the right to raise the good faith exception as a basis for
affirming the lower court’s order because they failed to do so until opposing
his petition in the Supreme Court. “Ordinarily, the prosecution cannot
justify a search or seizure on appeal on a theory that was not presented to the
trial court.” (People v. Watkins (1994) 26 Cal.App.4th 19, 30 (Watkins).)
This forfeiture rule has exceptions. Mainly, it “does not apply if the
considerations that give rise to it are absent. ‘The obvious reason for th[e]
rule is to prevent “hunch” arrests on the street, based on nothing more than
confidence that a smart prosecutor will discover a legal basis in the
courtroom.’ [Citation.] Thus, a theory which assumes illegal police conduct
but nevertheless sustains the search or seizure, such as inevitable discovery,
may be raised for the first time on appeal.” (Watkins, supra, 26 Cal.App.4th
at pp. 30–31.)
That is the case here. Before defendant petitioned the Supreme Court
for certiorari, the People relied on the now invalidated holding in Lloyd,
supra, 216 Cal.App.3d 1425, accepted by this court and the trial court, that
the search was legal because it followed Officer Weikert’s hot pursuit of a
fleeing misdemeanant (i.e., defendant). As such, the People were not
required to raise the good faith exception as an alternative theory. The good
faith exception assumes an illegal search, which the People did not concede in
the trial court or when the case was first heard on appeal. (Watkins, supra,
26 Cal.App.4th at pp. 30–31.)
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In addition, the forfeiture rule is inapplicable where, as here, “ ‘there
does not appear to be any further evidence that could have been introduced to
defeat the theory in the trial court and therefore the question of application of
the new ground to a given set of facts is a question of law.’ ” 1 (Watkins,
supra, 26 Cal.App.4th at p. 31.)
Under these circumstances, we decline to find forfeiture and proceed to
the merits.
III. The good faith exception applies.
The People rely on Lloyd, supra, 216 Cal.App.3d 1425, to argue
“binding appellant precedent” authorized Officer Weikert’s warrantless entry
into defendant’s home. Lloyd held that “a suspect may not defeat a detention
or arrest which is set in motion in a public place by fleeing to a private place.”
(Lloyd, supra, at p. 1430.) Further, where “the pursuit into the home was
based on an arrest set in motion in a public place, the fact that the offenses
justifying the initial detention or arrest were misdemeanors is of no
significance in determining the validity of the entry without a warrant.”
(Ibid.) A few years later, the Fourth Appellate District reached the same
result. (See In re Lavoyne M. (1990) 221 Cal.App.3d 154, 159 [following Lloyd
to hold the “hot pursuit of minor into his house to prevent him from
frustrating an arrest [for traffic violations] that began in public provides an
exception to the warrant requirement”].) 2
1 We address the lack of a need for further evidence post, at pages 10–
12.
The People also cite a pre-Lloyd case (People v. Abes (1985) 174
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Cal.App.3d 796, 806–807) for the position that a “categorical hot pursuit
exception applied to misdemeanor offense of being under the influence of
PCP.” In People v. Abes, the officer also had reason to believe there was a
PCP lab operating in the home into which the suspect retreated, and that a
warrantless entry was necessary to prevent the destruction of evidence and to
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In Stanton v. Sims (2013) 571 U.S. 3, 9–10 (Stanton), the Supreme
Court expressly acknowledged that the hot pursuit exception in California
extended to both felony and misdemeanor suspects, citing Lloyd and
Lavoyne M. There, the issue was whether the Ninth Circuit Court of Appeals
correctly decided that a California police officer was “ ‘plainly incompetent’ ”
to pursue a fleeing misdemeanant into his home. Reversing, the Supreme
Court found it “especially troubling that the Ninth Circuit would conclude
that Stanton was plainly incompetent—and subject to personal liability for
damages—based on actions that were lawful according to courts in the
jurisdiction where he acted,” referring to Lloyd and Lavoyne M. (Stanton,
supra, 571 U.S. at pp. 9–10.)
Clearly, Lange v. California, supra, changed this California law when it
rejected a categorical rule permitting warrantless entry in hot pursuit cases
involving misdemeanor suspects. 3 (210 L.Ed.2d at p. 491.) Nonetheless, at
protect public safety. (Ibid.) Nonetheless, the court went on to hold that “if it
can be said that Sergeant McCormick had reasonable cause to arrest Luna
only for being under the influence of PCP, the fact it was a misdemeanor is of
no significance in determining the validity of the entry without a warrant.”
(Id. at p. 807.)
3 Prior to Lange v. California, our own Supreme Court expressed a
preference for case-by-case assessments rather than categorical rules when
undertaking a Fourth Amendment analysis in a case involving warrantless
entry to effect a DUI arrest in order to prevent the destruction of blood-
alcohol evidence. In People v. Thompson (2006) 38 Cal.4th 811, 824, the
California Supreme Court rejected a bright-line rule limiting warrantless
entries to felonies, in part because it “ ‘would send a message to the “bad
man” who drinks and drives that a hot pursuit or arrest set in motion can be
thwarted by beating the police to one’s door.’ ” The court cautioned, however,
that in “holding that exigent circumstances justified the warrantless entry
here, we need not decide—and do not hold—that the police may enter a home
without a warrant to effect an arrest of a DUI suspect in every case. We hold
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the time Officer Weikert entered defendant’s home without a warrant, Lloyd
and Lavoyne M. were “binding appellate precedent” in California. As such, as
the high court instructs, “when the police conduct a search in objectively
reasonable reliance on binding appellate precedent, the exclusionary rule
does not apply.” (Davis, supra, 564 U.S. at pp. 249–250; see Mackey, supra,
233 Cal.App.4th at pp. 94–96 [despite the Supreme Court’s recent adoption of
a new law, “[t]he holding in [People v. Zichwic (2001) 94 Cal.App.4th 944,
953–956,] was . . . binding California precedent upon which the police could
reasonably rely in 2007, when they installed a GPS device on [defendant’s]
vehicle”].)
Interestingly, Lloyd, supra, 216 Cal.App.3d at pages 1428–1429, relied
for its holding on United States v. Santana (1976) 427 U.S. 38, 42–43.
Santana held only that an officer can gain warrantless entry into the home of
a fleeing felon without violating the Fourth Amendment. “[Although]
Santana involved a felony suspect, [the Supreme Court] did not expressly
limit [its] holding based on that fact.” (Stanton, supra, 571 U.S. at p. 9; see
Lange v. California, supra, 210 L.Ed.2d at p. 495 [“neither Santana nor any
other decision [before today] had resolved the [law regarding warrantless
entry in hot pursuit of a fleeing misdemeanant] one way or the other”].) As
such, Santana does not squarely support Lloyd’s holding. (People v. Knoller
(2007) 41 Cal.4th 139, 155 [“ ‘An appellate decision is not authority for
everything said in the court’s opinion but only “for the points actually
involved and actually decided” ’ ”].) Yet, this fact does not negate the
precedential value of Lloyd and Lavoyne M., which remained good law in
merely that the police conduct here, taking into account all of the
circumstances, was reasonable . . . .” (Id. at p. 827.)
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California until the Supreme Court decided Lange v. California. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Moreover, relying on this now invalidated appellate precedent to apply
the good faith exception in this case fully aligns with the policies underlying
our Supreme Court Fourth Amendment jurisprudence. “A police officer who
acts in compliance with binding judicial precedent is ‘not culpable in any
way.’ (Davis v. United States, supra, 564 U.S. at [pp. 239–240].) “If the
exclusionary rule were applied in that context, it would deter ‘conscientious
police work,’ not police misconduct.” (Mackey, supra, 233 Cal.App.4th at p.
95, citing Davis, supra, 564 U.S. at p. 241.)
Defendant counters there is no evidence in this record to establish
Officer Weikert was even aware of Lloyd or Lavoyne M., much less that he
relied on them when deciding to enter defendant’s home without a warrant.
According to defendant, had the People raised this issue in a timely fashion,
he would have been on fair notice of the need to investigate the officer’s
familiarity with these cases.
Defendant’s arguments misstate the law. “[The good faith reliance]
doctrine is objective, fact-based, and limited. ‘Accordingly our good-faith
inquiry is confined to the objectively ascertainable question whether a
reasonably well trained officer would have known that the search was
illegal . . . .’ ” (Macabeo, supra, 1 Cal.5th at pp. 1221–1222.) When
undertaking this inquiry, we presume “[r]esponsible law-enforcement officers
will take care to learn ‘what is required of them’ under Fourth Amendment
precedent and will conform their conduct to these rules. [Citation.]” (Davis,
supra, 564 U.S. at p. 241; see Leon, supra, 468 U.S. at pp. 919–920 & fn. 20
[“The objective standard we adopt . . . requires officers to have a reasonable
knowledge of what the law prohibits”].)
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Under these principles, “ ‘ “evidence obtained from a search should be
suppressed only if it can be said that the law enforcement officer had
knowledge, or may properly be charged with knowledge, that the search was
unconstitutional under the Fourth Amendment.” ’ (Leon[, supra, 468 U.S.] at
p. 919 [citation].)” (Macabeo, supra, 1 Cal.5th at p. 1220, italics added.)
Here, Officer Weikert may not properly be charged with knowledge that his
warrantless entry into defendant’s home violated the Fourth Amendment
given that multiple California cases—good law at the time—authorized
warrantless entry in cases, such as this one, involving the hot pursuit of a
fleeing misdemeanant. (See Macabeo, supra, 1 Cal.5th at p. 1212 [reviewing
court exercises its independent judgment on the trial court’s express and
implied factual findings that are supported by substantial evidence].)
Accordingly, for the reasons stated, we conclude the officer “followed
binding state appellate law when he entered the garage in pursuit of
[defendant] . . . .” The exclusionary rule therefore does not require exclusion
of the evidence seized in defendant’s home, even though under the new law
established in Lange v. California, supra, 210 L.Ed.2d at pages 500–501,
seizure of this evidence was a violation of his Fourth Amendment rights.
DISPOSITION
The order denying defendant’s motion to suppress is affirmed.
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_________________________
Jackson, P. J.
WE CONCUR:
_________________________
Simons, J.
_________________________
Burns, J.
A157169/People v. Arthur Gregory Lange
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A157169/People v. Arthur Gregory Lange
Trial Court: Superior Court of Sonoma County
Trial Judge: Marjorie L. Carter
Counsel: Peter Goodman for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General,
Jeffrey M. Laurence, Assistant Attorney General,
Laurence K. Sullivan and Donna M. Provenzano,
Deputy Attorneys General, and Kimberly M.
Castle, Deputy State Solicitor General, for Plaintiff
and Respondent.
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